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[A.M. No. P-97-1247.

May 14, 1997]


(Formerly A.M. OCA I.P.I.1 No. P-971247)
NARITA RABE, complainant, vs. DELSA
M. FLORES, Interpreter III, RTC,
Branch
IV,
Panabo,
Davao, respondent.

and brought the materials to the


police station of Panabo, Davao."

Service for the years 1991, 1992,


1993, and 1994;

After respondent filed her answer, the


Court issued a Resolution dated January
17, 1996, absolving her of the charge. In
the same resolution, however, the Court
required respondent to explain why she
should not be administratively dealt with
for the following:4

c) why she has not divested


herself of her interest in said
business within sixty (60) days
from her assumption into (sic)
office; and

DECISION
PER CURIAM:
In an administrative complaint for
"Conduct Unbecoming a Government
Employee, Acts Prejudicial to the Interest
of the Service and Abuse of Authority"
dated August 18, 1995, Complainant
Narita
Rabe,2 by
counsel,
charged
Respondent Delsa M. Flores, Interpreter III
at the Regional Trial Court, Branch IV,
Panabo, Davao, as follows:3
"(Mrs.) Flores took advantage of
her position as a court employee
by claiming a stall at the
extension of the Public Public (sic)
Market when she is (sic) not a
member of our client's association
and was never a party to Civil
Case No. 89-23. She herself knows
(sic) that the stalls in the said area
had already been awarded to our
client's members pursuant to the
decision of the court on October
30, 1991. Worse, she took the law
into
her
hands
when
she
destroyed the stall of our client

"x x x a) why she obtained a


certification dated June 18, 1991
issued by Atty. Victor R. Ginete,
Clerk of Court, same court, that
she started performing her duties
as (an) interpreter on May 16,
1991 when (1) according to a
certification dated June 17, 1991
issued by Mr. Jose B. Avenido,
Municipal
Treasurer,
Panabo
Davao, she was employed in the
office of the Municipal Assessor as
Assessment Clerk I since February
1, 1990 to June 3, 1991 with her
last salary being paid by said
office on June 3, 1991; and (2) she
took her oath of office before
Judge Mariano C. Tupas only on
June 17, 1991;
b) why she did not report said
business interest in her sworn
statement of Assets, Liabilities
and Net Worth, Disclosure of
Business Interests and Financial
Connections, and Identification of
Relatives in the Government

d) why she has indicated in her


DTRs for August 1995 that she
worked on August 15-18, 21, 2325 and 28-31 and for September,
1995 that she worked for all its
twenty one (21) working days
when her Contract of Lease with
the Municipal Government of
Panabo for the market stall in its
Section 7 clearly states that she
has to personally conduct her
business and be present at the
stall otherwise the same would be
canceled as per its Section 13."
Respondent Flores, in a letter dated
February 13, 1996, explains that, as stated
in the certification of Atty. Ginete, she
assumed her job in the Regional Trial
Court, Branch IV, Panabo, Davao on May
16, 1991, in compliance with the directive
from this Court for her to start working on
the said date. Respondent further states
that "even prior to said date (May 16,
1991)" she already reported to the court in
order to familiarize herself with the scope
of her duties.5
Respondent Flores also admits that
she had received from the municipality a

salary for the period May 16 1991 May 31,


1991, notwithstanding her transfer to the
judiciary on May 16, 1991. She submits,
however, the following justification:6
"I admit that I received my last
salary in the amount of One
Thousand
and
80/100
(P1,000.80) Pesos from the Local
Government Unit from May 16-31,
1991 but farthest from my mind is
the
intent
to
defraud
the
government. It was my desire all
the time to refund the amount the
moment my salary is received
from
the
Supreme
Court,
unfortunately more often than not
(the salary) is received three or
four months after assumption of
office.
As we all know the month of May
and June is the time we enroll our
children in school thus the money
I got that month from the Local
Government Unit came handy in
defraying registration expenses of
my four children. The passage of
time
coupled
with
some
intervening events, made me
oblivious of my obligation to
refund the money. However, when
my attention was called on the
day I received the copy of the
resolution, I took no time in
refunding the same."
Respondent
alleges
that
the
certification of Municipal Treasurer Jose V.
Avenido is inaccurate because it was on

January 25, 1990 that she was appointed


as Assessment Clerk I.7According to
respondent, she took her oath on June 17,
1991, simply because it was on that date
that she received a copy of her oath form.8
Respondent avers that she did not
divulge any business interest in her Sworn
Statement of Assets and Liabilities and
Financial Disclosure for the years 19911994 because she "was never engaged in
business during said period although I had
a stall in the market."9
Respondent further avers that her
Daily Time Record indicated that she held
office on August 15, 18, 21, 23 to 25 and
28, 31 and all the working days of
September, 1995 "because in truth and in
fact x x x (she) did hold office on those
days." This was because her contract of
lease with the Municipal Government of
Panabo was never implemented as it
became the subject of "Civil Case No. 9553 -- Panabo Public Market Vendors Assn.
Inc. and Pag-ibig Ng Gulayan Ass. Inc. Vs.
Municipality
of
Panabo, et
al.,
for
Declaration of Nullity of Mun. Ord. No. XLV,
Series of 1994."10
The Court referred the matter to the
Office of the Court Administrator for
evaluation, report and recommendation. In
its report, the OCA found respondent
guilty of dishonesty and failure to report
her business interest, and recommended
that the penalty of dismissal be imposed
on her. The Court finds that the report and
recommendation of the OCA is in accord
with the evidence and the law. We hold

the
explanation
of
respondent
unsatisfactory. Respondent's misconduct is
evident from the records.
By her own admission, respondent
had collected her salary from the
Municipality of Panabo for the period of
May 16-31, 1991, when she was already
working at the RTC. She knew that she
was no longer entitled to a salary from the
municipal government, but she took it just
the same. She returned the amount only
upon receipt of the Court Resolution dated
January 17, 1996, or more than five (5)
years later. We cannot countenance the
same. Respondent's conduct is plain
dishonesty.
Her explanation, as observed earlier,
is unsatisfactory. Her overriding need for
money from the municipal government,
aggravated by the alleged delay in the
processing of her initial salary from the
Court, does not justify receipt of a salary
not
due
her. We
sympathize
with
respondent's sad plight of being the sole
breadwinner of her family, with her
husband and parents to feed and children
to send to school. This, however, is not an
acceptable excuse for her misconduct. If
poverty and pressing financial need could
justify stealing, the government would
have been bankrupt long ago. A public
servant should never expect to become
wealthy in government.
But
there
is
really
more
to
respondents'
defense
of
poverty. If
respondent was just driven by dire
pecuniary need, respondent should have

returned the salary she had obtained from


the Municipal Government of Panabo as
soon as she obtained her salary from the
court. However, she returned the money
only after receipt of the Court's Resolution
dated January 17, 1996, saying that she
forgot all about it. Forgetfulness or failure
to remember is never a rational or
acceptable explanation.
In Macario Flores vs. Nonilon Caniya,
Deputy Sheriff, RTC, Imus, Cavite,11 this
Court ruled that a sheriff who failed to
issue an official receipt for the money
entrusted to him for the purpose of
satisfying a judgment debt, "had really
wanted to misappropriate the said
amount." Inevitably, he was dismissed
from service with forfeiture of all
retirement benefits and accrued leave
credits, with prejudice to re-employment
in any branch or instrumentality of the
government, including government-owned
or controlled corporations.
It is well to stress once again the
constitutional declaration that a "(p)ublic
office is a public trust. Public officers and
employees must at all times be
accountable to the people, serve them
with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism
and justice, and lead modest lives."12
We have repeatedly held that
although every office in the government
service is a public trust, no position exacts
a greater demand for moral righteousness
and uprightness from an individual than in
the judiciary. Personnel in the judiciary

should conduct themselves in such a


manner as to be beyond reproach and
suspicion, and free from any appearance
of impropriety in their personal behavior,
not only in the discharge of their official
duties but also in their everyday life. They
are strictly mandated to maintain good
moral character at all times and to
observe irreproachable behavior so as not
to outrage public decency.13
This Court, in JPDIO vs. Josephine
Calaguas, Records Officer, OCC, MTCC,
Angeles City,14 held:
"The Court must reiterate that a
public office is a public trust. A
public servant is expected to
exhibit, at all times, the highest
degree of honesty and integrity
and should be made accountable
to all those whom he serves."
Respondent's malfeasance is a clear
contravention of the constitutional dictum
that the State shall "maintain honesty and
integrity in the public service and take
positive and effective measures against
graft and corruption."15
Under
the
Omnibus
Rules
Implementing Book V of EO No. 292 known
as the "Administrative Code of 1987" and
other pertinent Civil Service Laws, the
penalty for dishonesty is dismissal, even
for the first offense.16 Accordingly, for
respondent's dishonesty in receiving and
keeping what she was not lawfully entitled
to, this Court has the duty to impose on

her
the
penalty
law: dismissal.

prescribed

by

Apart from the above finding, we also


note the contradiction between the
certification issued by Municipal Treasurer
Jose Avenido stating that respondent had
worked as an assessment clerk in his
office up to June 3, 1991, and the
certification of Clerk of Court Victor Ginete
stating that respondent started working as
an interpreter on May 16, 1991. Although
specifically asked by the Court to explain
this contradiction, respondent could only
state that the certification of the treasurer
is inaccurate because she assumed her
position as Assessment Clerk on January
25, 1990 and not on February 1, 1990 as
written
in
the
said
certification. Respondent, however, failed
to explain the gravamen of the inquiry,
i.e., that she was certified to be still
connected with the Municipal Government
of
Panabo
on
June
3,
1991,
notwithstanding her assumption of her
post in the Regional Trial Court as early as
May 16, 1991. To the mind of the Court,
respondent's inability to explain this
discrepancy is consistent with her failure
to satisfactorily explain why she knowingly
received and kept a salary she was not
entitled to. Worse, it may be indicative of
a conscious design to hold two positions at
the same time.
Aside from dishonesty, however,
respondent is also guilty of failure to
perform her legal obligation to disclose
her business interests. Respondent herself
admitted that she "had a stall in the

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

offense. It is a finding, which further


supports
its
recommendation
for
17
respondent's dismissal, to wit:
"The case respondent is referring
to was filed in 1995. This can be
seen from the number of the case
which is 95-93. Earlier than the
filing of the case, respondent was
already collecting rentals -- as
early as February 22, 1991 -from one Rodolfo Luay who was
operating a business without the
necessary license.
Respondent
should
have,
therefore, indicated in her 'Sworn
Statement of Assets, Liabilities
and Net Worth, Disclosure of
Business Interests and Financial
Connections, and Identification of
Relatives in the Government
Service' for the years 1991, 1992,
1993, 1994 and 1995 that she had
a market stall in the Public market
of Panabo, Davao.
She admits that she never indicated such
in her sworn statements.
As this Office had earlier stated in its
Memorandum dated November 10, 1995
filed in connection with the instant
complaint:
'Such non-disclosure is
punishable
with
imprisonment
not
exceeding five (5) years,
or a fine not exceeding

five
thousand
(P5,000.00) pesos, or
both. But even if no
criminal prosecution is
instituted against the
offender, the offender
can be dismissed from
the
service
if
the
violation
is
proven.
Respondent
201
file
speaks for itself.
Furthermore, respondent
should have divested
herself of her interest in
said business within sixty
(60)
days
from
her
assumption
into
(sic)
office. She has not. The
penalty
for
nondisclosure of business
interests
and
nondivestment is the same."'
(Citations omitted.)
In
her
explanation,
respondent
maintains the position that she has no
business interest, implicitly contending
that there is nothing to divulge or divest
from. As discussed above, respondent had
a business interest. We do not find her
administratively liable, however, for failure
to divest herself of the said interest. The
requirement for public officers, in general,
to divest themselves of business interests
upon assumption of a public office is
prompted by the need to avoid conflict of
interests.18 In the absence of any showing
that a business interest will result in a
conflict of interest, divestment of the

same is unnecessary. In the present case,


it seems a bit far-fetched to imagine that
there is a conflict of interest because an
Interpreter III of the Regional Trial Court
has a stall in the market. A court,
generally, is not engaged in the regulation
of a public market, nor does it concern
itself with the activities thereof. While
respondent may not be compelled to
divest herself of her business interest, she
had the legal obligation of divulging it.
WHEREFORE, in conformity with the
recommendations of the Office of the
Court Administrator, Interpreter III Delsa
M.
Flores
is
hereby DISMISSED from
service with FORFEITURE of all retirement
benefits and accrued leave credits and
with PREJUDICE to re-employment in any
branch
or
instrumentality
of
the
government, including government-owned
or controlled corporations.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado,
Davide, Jr., Romero, Bellosillo, Melo, Puno
Vitug, Kapunan, Mendoza, Francisco,
Hermosisima, Jr., Panganiban, and Torres,
Jr., JJ., concur.
[A.M. No. P-99-1342. June 8, 2005]
CONCERNED
TAXPAYER, complainant, vs.
NORBERTO V. DOBLADA, JR.,
Sheriff IV, Branch 155, Regional
Trial
Court,
Pasig
City, respondent.

DECISION
PER CURIAM:
The instant administrative case arose
from a letter-complaint dated December 8,
1993 filed by a concerned taxpayer with
the Office of the Ombudsman, charging
Norberto V. Doblada, Jr., Sheriff IV of the
Regional Trial Court (RTC) of Pasig, Branch
155, of having acquired properties during
his incumbency as sheriff, the values of
which are manifestly out of proportion to
his salary as such public employee and to
his other lawful income or incomes from
legitimately acquired property.[1]
In an Indorsement dated August 22,
1997, the complaint was referred by the
Office of the Ombudsman to the Office of
the Court Administrator (OCA) of this
Court.[2]
Upon report and recommendation of
the OCA, dated February 8, 1999, this
Court issued a Resolution dated March 17,
1999 requiring respondent to comment on
the complaint. In the same resolution, the
National Bureau of Investigation (NBI) was
directed
to
conduct
a
discreet
investigation of this case and to submit a
report within thirty days from notice.[3]
On April 29, 1999, respondent filed his
Comment contending that aside from the
two parcels of land mentioned in the FactFinding Report of the Office of the
Ombudsman which are registered in the
name of his wife, the other real properties
mentioned in said report are not actually

his properties because they belong to his


father, having been registered in the name
of the latter. Respondent surmises that the
instant
complaint
may
have
been
politically motivated and may have been
instigated by those who did not get his
support in past local elections. Respondent
claims that a similar anonymous complaint
was filed against him in the 1980s wherein
he submitted himself for investigation by
the NBI.
In a Resolution dated September 20,
1999, respondent was required to inform
this Court if he is willing to submit the
case for resolution or to elect a formal
investigation of the case.[4]On October 22,
1999,
respondent
submitted
his
Compliance to the above-cited Resolution,
manifesting that he is willing to submit the
case for resolution based on records
available to this Court.[5]
On March 7, 2000, this Court received
a report of the investigation conducted by
the NBI, pertinent portions of which read
as follows:
9.

Analysis
of
the
assets,
liabilities, net worth and
yearly salary of Subject for
the period 1989, 1991,
1993, 1995, 1996 and 1998
shows that there is prima
facie evidence that Subject
acquired
unexplained
wealth (Annexes I to I-13)
during his tenure as Court
Sheriff in 1995. Increase in
salary and increase in

liabilities
are
apparent.
However, increase in assets
far exceeds increase in
salary.
Net
worth
also
increased after assumption
to office as Deputy Court
Sheriff in 1977.
Subject also failed to submit
his sworn statement of
assets and liabilities for the
years 1975 to 1988, 1990,
1992, 1994 and 1997 as
said documents were not
submitted to the NBI by the
Records Control Division of
the Supreme Court.
A court order to secure the
income
tax
returns
of
Subject
NORBERTO
DOBLADA,
JR.
and
his
spouse, EDITH, who is
employed
at
the
Department of Education,
Culture and Sports, in
Binangonan,
as
Superintendent
would
determine whether Subject
had
other
legitimate
sources of income.
Subject has to justify his
acquisition
of
fishpens
acquired at P2,500,000.00
in 1993 and Civic Honda
at P435,000.00
in
1995
where his legitimate income
as
Court
Sheriff
is
at P44,652
per
annum

and P65,496.00 per annum


respectively. His earnings as
jeepney operator with one
unit as reported in 1982
would not suffice further
acquisition of wealth such
as residential lots 19821988 ranging from P8,670
to P125,000.00. Loans from
creditors would not be
sufficient
to
cover
acquisition of real and
personal properties in 1992,
1994, 1995, 1996 and 1998.
xxxxxxxxx
F. AGENTS FINDINGS
11.

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

In its Resolution of May 29, 2002, this


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

increase of his assets from P6,000 in 1974


to P7 million, more or less, in 1995.
Respondents records also disclose that he
had not been submitting his Statement of
Assets,
Liabilities
and
Networth
particularly for the years 1975, 1977 to
1988, 1990, 1992, 1994, 1999 and 2000
as mandated under R.A. 6713.
xxxxxxxxx

A careful examination of the NBI


Investigation Report on respondents
alleged real properties enumerated in the
Fact-Finding Report of the Office of the
Ombudsman reveals that only one (1)
property was found to be registered under
respondents name and this is as co-owner
of an agricultural land along Janosa,
Binangonan, Rizal covered by TCT No.
46607. TCT No. M-23480 and TCT No. M17315 are both registered in the name of
respondents wife, Edith Doblada while Tax
Declaration ARP #28-0032, covering a
residential lot along Janosa, Binangonan,
Rizal discloses the name Norberto Doblada
as the owner. A perusal of respondents
Sworn Statement of Assets, Liabilities and
Networth filed before this Office however
discloses his ownership of several other
properties, real and personal which,
clearly, contributed to an unimaginable
increase of his assets during his
incumbency as court sheriff. With this
information on hand, it cannot be ignored
that such would be a factor in the proper
evaluation of the instant administrative
case. Respondent, therefore, should be
accorded the opportunity to explain the

Considering, therefore the gravity of the


penalty imposed on a public officer who is
found to have violated Sec. 7, R.A. 3019
and Sec. 8, R.A. 6713, respondent should
be given the opportunity to explain his
failure to submit his Sworn Statement of
Assets, Liabilities and Networth.
IN VIEW OF THE FOREGOING, it is hereby
respectfully
recommended
that
respondent Sheriff Norberto Doblada, Jr.
be DIRECTED to EXPLAIN within ten (10)
days from notice his failure to submit his
Sworn Statement of Assets, Liabilities and
Networth for the years 1975, 1977 to
1988, 1990, 1992, 1994, 1999 and 2000,
and the significant increase of his assets
from P6,000.00 in 1974 to 7 million by
1995.[8]
This Court, in a Resolution dated July
16, 2003, directed respondent to explain
in writing his failure to submit his Sworn
Statement of Assets and Liabilities and
Networth (SAL) for the years 1975, 1977
to 1988, 1990, 1992, 1994, 1999 and
2000, and the significant increase of his

assets
from P6,000.00
to P7,000,000.00 in 1995.[9]

in

1974

On September 5, 2003, respondent


submitted his Explanation[10] contending
that contrary to what had been stated in
the Courts Resolution of July 16, 2003, he
had been religiously filing his SAL,
including the years mentioned in the
Resolution when he supposedly failed to
file said Statements. He admits that he
does not have copies of these Statements
and
claims
that
he
might
have
accidentally disposed of the same during
the various times that he transferred
office. As to the increase of his assets
from P6,000.00 in 1974 to P7,000,000.00
in 1995, respondent explains that the
significant improvement of his assets was
brought about by inheritance and largely,
through business ventures which are
financed through loans.
On September 24, 2003, this Court
issued a resolution referring the instant
case to the OCA for evaluation, report and
recommendation.[11]
On December 21, 2004, respondent
filed a Motion for Early Resolution, alleging
that he has complied with the directives of
the Court and the case is now ripe for
resolution.[12]
In a Memorandum dated February 3,
2005, the OCA submitted a report with the
following findings:
The determination of whether or not
respondent Doblada acquired properties

with a valuation manifestly out of


proportion to his salary and that of his wife
and their additional earnings requires a
comparison of the respective values of the
properties with the salaries, benefits,
other lawful income and additional
revenues from legitimately acquired
properties or businesses of the said
spouses. The deficient and insufficient
documents submitted to the OCA cannot
serve as bases for such comparison.
Absent complete documentation and
information on the properties acquired by
the spouses Doblada and their respective
earnings, we are not ready to state that
the allegations in the anonymous lettercomplaint dated 8 December 1993 have
been shown by sufficient and convincing
proof.

Doblada excluded from Statements for


1974 and 1976 the real properties he
already had during those years and which
he claimed he acquired in 1965 in the
1989 Statement he filed. Respondent
Doblada violated the provisions of the
Code of Conduct and Ethical Standards for
Public Officials and Employees and the
CSC rules implementing the said Code
when he did not include information on his
business
interest
in
and
financial
connection with ELXSHAR in the 1989,
1991 and 1993 Statements. The violations
are not isolated episodes. They had been
repeatedly committed by respondent
Doblada as can be culled from the
different Statements filed in various years.
[13]

and recommendations, to wit:


However, our evaluation indicates that the
incompleteness of the documents, in
terms of filings of Statements and of
entries
therein,
is
attributable
to
respondent
Doblada.
The
submitted
Statements and information or incomplete
or lack of information in these Statements
fully evince violations of the provisions of
the Anti-Graft and Corrupt Practices Act,
the Code of Conduct and Ethical Standards
for Public Officials and Employees and the
CSC rules implementing the said Code. We
find that respondent Doblada as shown by
the instances (not merely a single
instance) herein discussed contravened
the provisions of the Anti-Graft and
Corrupt Practices Act requiring the
submission of a true, detailed and sworn
statement of assets and liabilities (Section
7). As particular example, respondent

1. That Sheriff Norberto V. Doblada, Jr., be


found administratively liable for violations
of the Anti-Graft and Corrupt Practices Act,
the Code of Conduct and Ethical Standards
for Public Officials and Employees and the
CSC rules implementing the provisions of
the said Code; and
2. That Sheriff Doblada be meted the
penalty of removal from the service, with
forfeiture of his retirement benefits, and
with prejudice to re-employment in any
branch of the government or any of its
agencies or instrumentalities, including
government-owned
or
controlled
corporations and government financial
institutions.[14]
We agree with the OCA.

After a perusal of the records on hand,


we find that complainants charge against
respondent
is
not
sufficiently
substantiated.
We
agree
with
the
observation of the OCA that the evidence
presented in the instant case, consisting
of the documents submitted by the
complainant and those which were
compiled by the investigating agent of the
NBI, are not adequate to establish
complainants allegation that respondent
had acquired assets which are manifestly
out of proportion to his legitimate income.
Moreover, we find no sufficient
evidence to prove that respondent failed
to file his SAL for the years 1975, 1977 to
1988, 1990, 1992, 1994, 1997, 1999 and
2000. Respondent maintains that he has
consistently filed his SAL for the said
years. To prove his contention, respondent
submitted a copy of a letter dated May 7,
2001 sent by Remegio C. Aosa, Acting
Branch Clerk of Court of Branch 155, RTC,
Pasig City, stating therein that attached to
said letter are the sworn SAL of the staff of
RTC Pasig City, Branch 155, including that
of respondents, for the year 2000. The
letter was sent to and duly received by the
OCA but the SAL of respondent for 2000 is
one of those missing in the files of OCA.
On this premise, one cannot readily
conclude that respondent failed to file his
sworn SAL for the years 1975, 1977 to
1988, 1990, 1992, 1994, 1997, 1999 and
2000 simply because these documents are
missing in the files of the OCA. Even in the
report of the Court Administrator dated
February 3, 2005, there was no categorical
statement that respondent failed to file his

SAL for the years earlier mentioned. The


report of the OCA simply stated that it
does not have on its file the subject SAL of
respondent.

before the fifteenth day of April following


the close of the said calendar year.

Nonetheless, we agree with the OCA


in finding that respondent is guilty of
violating Republic Act Nos. 3019 (AntiGraft and Corrupt Practices Act) and 6713
(Code of Conduct and Ethical Standards
for Public Officials and Employees) for
having failed to submit a true, detailed
and sworn statement of his assets and
liabilities.

(b) Any public officer violating any of the


provisions of Section 7 of this Act shall be
punished by a fine of not less than one
thousand pesos nor more than five
thousand pesos, or by imprisonment not
exceeding one year and six months, or by
both such fine and imprisonment, at the
discretion of the Court.

Section 7 of R.A.
amended, provides:

No.

3019,

as

Sec. 7. Statement of Assets and Liabilities.


Every public officer, within thirty days
after assuming office and, thereafter, on
or before the fifteenth day of April
following the close of every calendar year,
as well as upon the expiration of his term
of office, or upon his resignation or
separation from office, shall prepare and
file with the office of the corresponding
Department Head, or in the case of a Head
of Department or Chief of an independent
office, with the Office of the President, a
true, detailed and sworn statement of
assets
and
liabilities,
including
a
statement of the amounts and sources of
his income, the amounts of his personal
and family expenses and the amount of
income taxes paid for the next preceding
calendar year: Provided, That public
officers assuming office less than two
months before the end of the calendar
year, may file their first statement on or

Section 9(b) of the same Act provides:

The violation of said section proven


in a proper administrative proceeding
shall be sufficient cause for removal
or dismissal of a public officer, even if
no criminal prosecution is instituted
against him. (emphasis supplied)
In the same manner, Section 8 of R.A.
No. 6713 provides:
SEC. 8. Statements and Disclosure. Public
officials and employees have an obligation
to accomplish and submit declarations
under oath of, and the public has the right
to know, their assets, liabilities, net worth
and financial and business interests
including those of their spouses and of
unmarried children under eighteen (18)
years of age living in their households.
(A) Statements of Assets and Liabilities
and Financial Disclosure. All public officials
and employees, except those who serve in
an honorary capacity, laborers and casual
or temporary workers, shall file under oath
their Statements of Assets, Liabilities and

Net Worth and a Disclosure of Business


Interests and Financial connections and
those of their spouses and unmarried
children under eighteen (18) years of age
living in their households.
The
two
documents
shall
information on the following:
(a)

(b)

real property, its


improvements,
acquisition
costs, assessed
value
and
current
fair
market value;
personal property
and acquisition
cost;

(c) all other assets such


as investments,
cash on hand or
in
banks,
stocks, bonds,
and the like;

contain

(b) on or before April 30,


of
every
year
thereafter; and
(c) within thirty (30) days
after separation
from the service.
All public officials and employees required
under this section to file the aforestated
documents shall also execute, within thirty
(30) days from the date of their
assumption of office, the necessary
authority in favor of the Ombudsman to
obtain from all appropriate government
agencies, including the Bureau of Internal
Revenue, such documents as may show
their assets, liabilities, net worth, and also
their business interests and financial
connections in previous years, including, if
possible, the year when they first assumed
any office in the Government.
Husband and wife who are both public
officials or employees may file the
required statements jointly or separately.
xxxxxxxxx

(d) liabilities, and;


(e) all business interests
and
financial
connections.
The documents must be filed:
(a)

within thirty (30)


days
after
assumption
of
office;

Section 11 of R.A. No. 6713 provides


for the penalties:
SEC. 11. Penalties. (a) Any public official or
employee, regardless of whether or not he
holds office or employment in a casual,
temporary,
holdover,
permanent
or
regular capacity, committing any violation
of this Act shall be punished with a fine
not exceeding the equivalent of six (6)
months
salary
or
suspension
not

exceeding one (1) year, or removal


depending on the gravity of the offense
after due notice and hearing by the
appropriate body or agency. If the
violation is punishable by a heavier
penalty under another law, he shall be
prosecuted under the latter statute.
Violations of Sections 7, 8 or 9 of this Act
shall be punishable with imprisonment not
exceeding five (5) years, or a fine not
exceeding
five
thousand
pesos
(P5,000.00), or both, and, in the discretion
of the court of competent jurisdiction,
disqualification to hold public office.
(b) Any violation hereof proven in a
proper
administrative
proceeding
shall be sufficient cause for removal
or dismissal of a public official or
employee,
even
if
no
criminal
prosecution is instituted against him.
(emphasis ours)
xxxxxxxxx
As to the business interests and
financial connections of public officials and
employees, Section 1(a)(2), Rule VII of the
Rules implementing R.A. No. 6713 states:
(2) The Disclosure of Business Interests
and Financial Connections shall contain
information on any existing interests in, or
any existing connections with, any
business enterprises or entities, whether
as proprietor, investor, promoter, partner,
shareholder, officer, managing director,
executive,
creditor,
lawyer,
legal
consultant or adviser, financial or business
consultant, accountant, auditor, and the

like, the names and addresses of the


business enterprises or entities, the dates
when such interests or connections were
established, and such other details as will
show the nature of the interests or
connections.
In the present case, we find that there
are discrepancies, inconsistencies and
non-disclosures in the SAL filed by
respondent for the years 1974, 1976,
1989, 1991, 1993, 1995 and 1998, to wit:
1. In his SAL for 1989, respondent
indicated therein that he owns a
residential lot located in the province of
Rizal
which
he
acquired
through
inheritance in 1965. Respondent also
declared in the same SAL that he owns a
house which he inherited in 1967. He also
acknowledged therein that he owns a
residential lot in Baguio City which he
acquired through purchase in 1965.
However, in his SAL for the years 1974
and 1976, respondent did not declare
ownership of any real property.
2. In his SAL for 1989 and 1993,
respondent declared that he owns a house
and lot acquired through inheritance in
1965. However, in his SAL for 1991, 1995,
1996 and 1998, he declared that the
house and lot he inherited was acquired in
1985.
3. Respondent acknowledged in his
SAL for 1991, 1993, 1995 and 1996 that
he acquired a house and lot by purchase
in 1985. However, he failed to declare said
property in his SAL for 1989.

4. In his Explanation submitted to the


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

acquired in 1993. However, a perusal of


his SAL for 1993 shows that while
respondent declared his being a fish pen
operator as part of his business interests,
he failed to include said fish pen among
his assets. It was only in 1995 that he
began to declare the fish pen as part of his
assets.
On the basis of the foregoing
discrepancies,
inconsistencies
and
omissions, we find respondent guilty of
violating Section 7 of R.A. No. 3019 and
Section 8 of R.A. No. 6713 for his failure to
declare a true and detailed statement of
his assets and liabilities for the years
1974, 1976, 1989, 1991, 1993, 1995 and
1998 and should be meted out the penalty
of dismissal from service pursuant to
Section 9(b), R.A. No. 3019 and Section
11, R.A. No. 6713. Furthermore, in Rabe
vs. Flores,[15] one of the reasons why the
Court dismissed a court employee from
the service is her failure to disclose her
business interests for a continued period
of four years. In this case, respondent
failed to disclose his business interests
from 1974 to 1994 or a period of twenty
years.
WHEREFORE, respondent Norberto V.
Doblada, Jr., Sheriff IV, Regional Trial Court
of Pasig City, Branch 155, is found GUILTY
of violation of Section 7, R.A. No. 3019 and
Section 8, R.A. No. 6713 and is DISMISSED
from the service, effective immediately,
with FORFEITURE of all benefits, except
accrued leave credits, if any, with
prejudice to his reemployment in any
branch or service of the government

including
government-owned
controlled corporations.

and

84254. The appellate court, in the said


decision, had reversed and set aside the

SO ORDERED.

March 23, 2004 Decision[2] and May 13,


2004 Resolution[3] of the Office of the

Davide,
Jr.,
C.J.,
Panganiban,
Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales,
Callejo,
Sr.,
Azcuna,
ChicoNazario, and Garcia, JJ., concur.

President in O.P. Case No. 03-1-581 finding


respondent Atty. Antonio F. Montemayor
administratively

liable

as charged

and

dismissing him from government service.

Puno, J., on official leave.


Ynares-Santiago, J., no part.
Tinga, J., no part. Close association
with the party.

The facts follow.


THIRD DIVISION
HON. WALDO Q. FLORES, in his capacity
as Senior Deputy Executive Secretary in
the Office of the President, HON.
ARTHUR P. AUTEA, in his capacity as
Deputy Executive Secretary in the Office
of the President, and the PRESIDENTIAL
ANTI-GRAFT COMMISSION (PAGC),
Petitioners,

Respondent Atty. Antonio F. Montemayor


was

appointed

by

the

President

as

Regional Director II of the Bureau of


Internal Revenue (BIR), Region IV, in San
Fernando, Pampanga.
On January 30, 2003, the Office of the

- versus ATTY. ANTONIO F. MONTEMAYOR,


Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

President

received

concerned

citizen

letter

from

dated January

a
20,

2003 relating Montemayors ostentatious


lifestyle

which

is

apparently

disproportionate to his income as a public


official. The letter was referred to Dario C.

DECISION

Rama, Chairman of the Presidential Anti-

VILLARAMA, JR., J.:

Graft Commission (PAGC) for appropriate


action.[4] The Investigating Office of the

Before us is a Rule 45 petition assailing


the October

19,

2005 Decision[1] of

the

Court of Appeals (CA) in CA-G.R. SP No.

PAGC
finding

immediately
inquiry

conducted

into

issued subpoenas duces

the

fact-

matter

and

tecum to

the

responsible personnel of the BIR and the

On the basis of the said documents, the

merit, and instead gave him until June 9,

Land

In

PAGC issued a Formal Charge[8] against

2003 to submit his counter-affidavit or

BIR

Montemayor on May 19, 2003 for violation

verified answer.[15] Still, no answer was

Datu

of Section 7 of Republic Act (RA) No.

filed.

Transportation

compliance
Personnel
submitted

with
Division
to

the

Office

the

(LTO).

subpoena,

Chief

Estelita

PAGC

copy

of

3019

[9]

in relation to Section 8 (A) of RA No.

Montemayors appointment papers along

6713[10] due to his failure to declare the

On June

with a certified true copy of the latters

2001 Ford Expedition with a value ranging

Temporary Restraining Order (TRO) in CA-

Sworn Statement of Assets and Liabilities

from 1.7 million to 1.9 million pesos, and the

G.R. SP No. 77285 enjoining the PAGC

(SSAL) for the year 2002. Meanwhile, the

1997 Toyota Land Cruiser with an estimated

from proceeding with the investigation for

LTO, through its Records Section Chief, Ms.

value of 1 million to 1.2 million pesos in his

sixty

Arabelle O. Petilla, furnished the PAGC with

2001[11] and 2002[12] SSAL. The charge was

2003, shortly after the expiration of the

docketed as PAGC-ADM-0149-03. On the

sixty (60)-day TRO, the PAGC issued a

same

Resolution[17] finding

record

of

Montemayor,

vehicles
to

wit:

registered
a

2001

to
Ford

date,

the

PAGC

issued

an

23,

(60)

2003,

the

CA

issued

days.[16] On September

12,

Montemayor

Expedition, a 1997 Toyota Land Cruiser,

Order[13] directing Montemayor to file his

administratively liable as charged and

and a 1983 Mitsubishi Galant.[5]

counter-affidavit or verified answer to the

recommending

formal charge against him within ten (10)

President Montemayors dismissal from the

During the pendency of the investigation,

days

service.

the

Investigative

Montemayor, however, failed to submit his

Journalism, a media organization which had

counter-affidavit or verified answer to the

previously published an article on the

formal charge lodged against him.

Philippine

Center

for

from

the

receipt

of

the

Order.

the

Office

of

the

On March 23, 2004, the Office of the


President,
Secretary

unexplained wealth of certain BIR officials,

to

through
Arthur

P.

Deputy

Executive

Autea,

issued

also submitted to the PAGC copies of

On June 4, 2003, during the preliminary

Decision adopting in toto the findings and

Montemayors SSAL for the years 1999,

conference, Montemayor, through counsel,

recommendation

2000 and 2001.[6] In Montemayors 1999

moved

pertinent portion of the Decision reads:

and 2000 SSAL, the PAGC noted that

administrative proceedings explaining that

Montemayor declared his ownership over

he has filed a petition for certiorari before

several motor vehicles, but failed to do the

the

same in his 2001 SSAL.

[7]

for

the

deferment

CA[14] questioning

of

the

the

PAGCs

jurisdiction to conduct the administrative


investigation

against

him.

The

PAGC

denied Montemayors motion for lack of

of

the

PAGC.

After a circumspect study of


the case, this Office fully
agrees
with
the
recommendation of PAGC
and the legal premises as
well as the factual findings
that
hold
it
together.
Respondent
failed
to
disclose in his 2001 and

The

2002
SSAL
high-priced
vehicles in breach of the
prescription of the relevant
provisions of RA No. 3019 in
relation to RA No. 6713. He
was, to be sure, afforded
ample
opportunity
to
explain his failure, but he
opted to let the opportunity
pass by.

favor of Montemayor. The CA concluded

PAGC exceeded its authority when it

that Montemayor was deprived of an

recommended that he be dismissed from

opportunity

government service since the power to

evidence amounting to a brazen denial of

investigate does not necessarily carry with

his right to due process.

the PAGC grossly violated his right to due

before us raising the following issues:

evidence

to

the

charges

anonymous
any

supporting

documents

Order (EO) No. 12;[23] fourth, that it was an

when the PAGC proceeded to investigate

error for the Office of the President to hold

his case notwithstanding the pendency of

him liable for violation of Section 7 of RA

his petition for certiorari before the CA,

No. 3019 and Section 8 (A) of RA No.

and

the

6713 since the SSAL should reflect assets

was

and liabilities acquired in the preceding

[21]

Montemayor

matter

the

review

[22]

to

CA via a

thereto,

contrary

to

the

year; and fifth, that the assailed PAGC


Resolution

Aggrieved,

WHETHER
THE
ALLEGED
UNDUE
HASTE
AND
APPARENT
PRECIPITATION
OF
PROCEEDINGS
IN
[PAGC]-ADM-0149-03

letter-complaint

he was denied his right to due process

eventually denied.

III.

charges against him on the basis of an

requirement of Section 4 (c) of Executive

motion

WHETHER THE
MERE PENDENCY OF
CA-G.R.
SP
NO.
77285 WAS A LEGAL
GROUND
FOR
RESPONDENTS
REFUSAL
TO
PRESENT EVIDENCE
IN [PAGC]-ADM-014903.

proceed with the investigation of the

said decision.[19] This time, he argued that

Court.[20] The

II.

him; third, that the PAGC cannot validly

attached

Supreme

WHETHER
PETITIONER
PAGC
HAD
A
CONSTITUTIONAL
DUTY TO ACCORD
RESPONDENT
A
SECOND
OPPORTUNITY
TO
PRESENT EVIDENCE
IN PAGC-ADM-014903
AFTER
THE
EXPIRATION OF THE
TRO ISSUED IN CAG.R. SP NO. 77285.

against

Montemayor sought reconsideration of the

to

I.

opportunity to present his countervailing

unverified

elevation

brought
petition

controverting

Hence, petitioners now appeal the matter

process of law when it did not give him the

[18]

subsequent

present

same was expressly granted; second, that

without

its

to

it the power to impose penalty unless the

WHEREFORE,
premises
considered,
respondent
Antonio F. Montemayor is
hereby
found
administratively liable as
charged
and,
as
recommended by PAGC,
meted
the
penalty
of
dismissal from the service,
with all accessory penalties.
SO ORDERED.

the following assertions: first, that the

the

was

not

supported

by

substantial evidence.

for

under Rule 43 of the 1997 Rules

of Civil Procedure, as amended. He made

As

aforesaid,

the

CA

in

its

assailed

Decision dated October 19, 2005, ruled in

HAD RENDERED THE


SAME INFIRM.
IV.

V.

VI.

WHETHER
RESPONDENT
HAD
COMMITTED A MAJOR
ADMINISTRATIVE
INFRACTION
WARRANTING
DISMISSAL
FROM
[GOVERNMENT]
SERVICE.
WHETHER THE
[OFFICE
OF
THE
PRESIDENTS]
DETERMINATION
THAT RESPONDENT
COMMITTED
THE
ADMINISTRATIVE
OFFENSE CHARGED
IS SUPPORTED BY
SUBSTANTIAL
EVIDENCE.
WHETHER
THE
PAGC
HAD
AUTHORITY
TO
RECOMMEND TO THE
PRESIDENT
THE
PENALTY
OF
DISMISSAL,
FOLLOWING
ITS
INVESTIGATION
INITIATED
BY
AN
ANONYMOUS
COMPLAINT,
AND
DESPITE
THE
PENDENCY
OF
ANOTHER
INVESTIGATION FOR
THE SAME OFFENSE
BEFORE THE [OFFICE
OF
THE]
OMBUDSMAN.[24]

SUBSTANTIAL
EVIDENCE.

The issues may be summarized as follows:


I.

II.

III.

IV.

WHETHER
RESPONDENT
WAS
DEPRIVED OF HIS
RIGHT
TO
DUE
PROCESS WHEN IT
PROCEEDED
TO
INVESTIGATE HIM ON
THE BASIS OF AN
ANONYMOUS
COMPLAINT,
AND
ALLEGEDLY WITHOUT
AN OPPORTUNITY TO
PRESENT EVIDENCE
IN HIS DEFENSE;
WHETHER THE
PAGC
HAS
THE
AUTHORITY
TO
RECOMMEND
RESPONDENTS
DISMISSAL
FROM
THE SERVICE;
WHETHER
THE
ASSUMPTION BY THE
OFFICE
OF
THE
OMBUDSMAN OF ITS
JURISDICTION
TO
INVESTIGATE
RESPONDENT
FOR
THE SAME OFFENSE
DEPRIVED THE PAGC
[WITH
ITS
JURISDICTION] FROM
PROCEEDING
WITH
ITS INVESTIGATION;
AND
WHETHER
THE
PAGCS
RECOMMENDATION
WAS SUPPORTED BY

We discuss the first three (3) issues jointly


as these involve procedural aspects.
The PAGC was created by virtue of EO No.
12, signed on April 16, 2001 to speedily
address the problem on corruption and
abuses committed in the government,
particularly by officials appointed by the
President. Under Section 4 (b) of EO No.
12, the PAGC has the power to investigate
and

hear

provided

(1)

investigated

administrative

complaints

that

the

official

must

be

to

be

presidential

appointee in the government or any of its


agencies or instrumentalities, and (2) that
the said official must be occupying the
position of assistant regional director, or
an equivalent rank, or higher.[25]
Respondent

contends

that

he

was

deprived of his right to due process when


the PAGC proceeded to investigate him on
the basis of an anonymous complaint in
the absence of any documents supporting
the complainants assertions.

Section 4 (c) of EO No. 12, however, states

inevitably undermine the Chief Executives

case pending before its office. [28] And even

that the PAGC has the power to give due

disciplinary power.

if such injunctive writ or order is issued,

course to anonymous complaints against

the PAGC continues to retain jurisdiction

presidential appointees if there appears on

Respondent

the face of the complaint or based on the

decision to proceed with the investigation

question

supporting

process without giving him the opportunity

determined.

documents

attached

to

the

anonymous complaint a probable cause to

also

assails

the

PAGCs

or in the said provision is determinative


since it empowers the PAGC to exercise
discretion

in

giving

due

course

to

anonymous complaints. Because of the said


provision, an anonymous complaint may be
given due course even if the same is
without supporting documents, so long as it
appears from the face of the complaint that
there

is

probable

cause.

The

clear

implication of the said provision is intent to


empower

the

Presidents
corruption

PAGC

in

line

objective
among

government

of

with

eradicating

particular

officials, i.e.,

the

those

line

of

directly

appointed by her. Absent the conjunctive


word or, the PAGCs authority to conduct
investigations
complaints

will

based
be

on

very

anonymous
limited. It

will

decimate the said administrative body into


a toothless anti-corruption agency and will

the

principal
on

action[29] until

jurisdiction

is

the

finally

to present controverting evidence.


In the case at bar, a sixty (60)-day TRO

engender a belief that the allegations may


be true.[26] The use of the conjunctive word

over

The argument is without merit.

was issued by the CA in CA-G.R. SP No.


77285. However, barely a week after the

We find nothing irregular with the PAGCs


decision to proceed with its investigation
notwithstanding

the

pendency

of

Montemayors petition for certiorari before


the

CA.

The

filing

of

petition

for certiorari with the CA did not divest the


PAGC of its jurisdiction validly acquired
over the case before it. Elementary is the
rule that the mere pendency of a special
civil action for certiorari, commenced in
relation to a case pending before a lower
court or an administrative body such as
the PAGC, does not interrupt the course of
the latter where there is no writ of
injunction restraining it.[27] For as long as

lapse of the TRO, the PAGC issued its


resolution

finding

Montemayor

administratively liable and recommending


to the Office of the President his dismissal
from government service. The CA believes
that there has been undue haste and
apparent

precipitation

in

investigation proceedings.

[30]

the

PAGCs

It notes with

disapproval the fact that it was barely


eight (8) days after the TRO had lapsed
that the PAGC issued the said resolution
and explains that respondent should have
been given a second chance to present
evidence prior to proceeding with the
issuance of the said resolution.[31]

no writ of injunction or restraining order is


issued

in

the

special

civil

action

for certiorari, no impediment exists, and


nothing prevents the PAGC from exercising
its jurisdiction and proceeding with the

We beg to disagree with the appellate


courts observation.

First, it must be remembered that the

Significantly, the records show that the

choices upon the issuance of the PAGC

PAGCs

PAGC

informing

resolution: to move for a reconsideration

of

Montemayor of the formal charge filed

thereof, or to ask for another opportunity

regularity particularly since it was done in

against him and gave him ten (10) days

before the Office of the President to

the performance of its official duties. Mere

within which to present a counter-affidavit

present his side particularly since the

surmises and conjectures, absent any

or

proof whatsoever, will not tilt the balance

period lapsed without respondent asking

recommendatory in nature. Having failed

against the presumption, if only to provide

for

gave

to exercise any of these two (2) options,

constancy in the official acts of authorized

Montemayor a fresh ten (10)-day period to

Montemayor cannot now be allowed to

government

officials.

file his answer,[35] but the latter chose to

seek recourse before this Court for the

Simply put, the timing of the issuance of

await the decision of the CA in his petition

consequences of his own shortcomings.

the assailed PAGC resolution by itself

for certiorari.[36] During

cannot be used to discredit, much less

conference,

nullify, what appears on its face to be a

informed that he is given a new ten (10)-

regular performance of the PAGCs duties.

day period, or until June 19, 2003 within

act

resolution

of

issuing

enjoys

the

personnel

the

assailed

presumption

and

issued

order

answer.[34] When

verified
an

an

extension,

the

the

said

PAGC

the

was

again

which to file his memorandum/position


Second, Montemayors argument, as well

paper as well as supporting evidence with

as the CAs observation that respondent

a warning that if he still fails to do so, the

was not afforded a second opportunity to

complaint shall be deemed submitted for

present controverting evidence, does not

resolution

hold water. The essence of due process in

documentary

administrative

proceedings

is

an

opportunity to explain ones side or an


opportunity to seek reconsideration of the

[37]

the

basis

evidence

of

available

on

record.

Again, the deadline lapsed without any

evidence being presented by Montemayor

We stress that the PAGCs findings and

explain his side, the requirements of due

recommendations

remain

as

recommendations until finally acted upon


by

the

Office

Montemayor,

of

therefore,

merely

the authority of the PAGC to investigate


him administratively, as well as the power
of the Office of the President to act on the
PAGCs

recommendation,

had

the
had

President.
two

(2)

already

ceased following the initiation and filing of


the

administrative

against

him

by

and

criminal

the

Office

cases

of

the

Ombudsman (Ombudsman).[38] He points


out that the Ombudsman is mandated by
Section
[39]

15,

paragraph

(1)

of RA

No.

to take over the investigation and

prosecution of the charges filed

as the party is given the opportunity to


process are satisfactorily complied with.

is

Desperately, Montemayor contends that

6770

in his defense.

action or ruling complained of.[32] So long

[33]

resolution

preliminary

Montemayor

on

assailed

against him.[40]
We are still not persuaded.

The cases filed against respondent before

Toyota Land Cruiser in his 2001 and 2002

SSAL.Notably, the acquisition value of the

the Ombudsman were initiated after the

SSAL fails to persuade us. Even if a motor

2001

Montemayor.[41] More

the

mortgage, it is a government employees

than the amount declared by Montemayor

proceedings before the PAGC were already

ethical and legal obligation to declare and

under

finished even prior to the initiation and

include the same in his SSAL. Montemayor

worthP1,321,212.50, acquired by him as of

filing

the

cannot wiggle his way out of the mess he

December

Ombudsman. In fact, it was the PAGCs

has himself created since he knows for a

the P1,251,675.00

findings

which

fact that every asset acquired by a civil

equipment acquired by him as of December

served as the basis in the Office of the

servant must be declared in the SSAL. The

31, 2002.[46] This belies Montemayors claim

Presidents

dismiss

law requires that the SSAL be accomplished

that the said vehicle has been included

Montemayor from government service.

truthfully and in detail without distinction as

among the machinery/equipment assets he

Clearly then, the exercise by the Office of

to

declared in his 2001 and 2002 SSAL.

the

Montemayor,

cases
and

against

him

by

recommendations
decision

President

of

to

its

concurrent

how

the

through

property

was

therefore,

chattel

is significantly greater

vehicle

of

acquired

Expedition

[44]

Office of the President decided to dismiss


importantly,

was

Ford

acquired.

cannot

escape

was P1,599,000.00

[47]

machinery/equipment,
31,

2001,[45] and
worth

of

to

machinery/

Neither did Montemayor satisfactorily

investigatory and prosecutorial power over

liability by arguing that the ownership of the

reflect the P1,000,000.00 that has come to

Montemayor had already been terminated

2001 Ford Expedition has not yet passed to

his hands as payment for the alleged sale of

even before the Ombudsman could take

him on the basis of a lame excuse that the

his 2001 Ford Expedition in his 2002 SSAL.

cognizance

said

[48]

over

the

matter.

The

vehicle

was

acquired

only

on

Ombudsman, therefore, cannot take over

installment basis sometime on July 3, 2001.

a task that is already a fait accompli.

[42]

As to the substantive aspect, i.e., whether

Montemayor

the

to dismiss

ownership of the said vehicle had been

Montemayor from government service is

transferred to him upon acquisition, the

supported by substantial evidence, we find

vehicle

in favor of petitioners.

on December 15, 2002;[43]hence, there is no

PAGCs

recommendation

need

Respondent apparently fails to understand


also

was
to

sold

declare

argues

to
it

that

even

another
in

his

if

person
2001

Montemayors argument that he did not

SSAL. Respondents reasoning is anemic and

deliberately omit to declare the 2001 Ford

convoluted. It is evasive of the fact that the

Expedition in his 2001 SSAL and the 1997

said vehicle was not reported in his 2001

that the SSAL is not a mere scrap of


paper. The law requires that the SSAL
must be accomplished as truthfully, as
detailed and as accurately as possible.
The filing thereof not later than the first
fifteen (15) days of April at the close of
every calendar year must not be treated
as a simple and trivial routine, but as an
obligation that is part and parcel of every

civil servants duty to the people. It serves

and the May 13, 2004 Resolution of the

as the basis of the government and the

Office of the President in O.P. Case No. 03-

people in monitoring the income and

1-581 are REINSTATED and UPHELD.

lifestyle of officials and employees in the


government
Constitutional
corruption,

[49]

in

compliance
policy

promote

government,[50] and

to

with

eradicate

transparency
ensure

the

that

in

Respondent Atty. Antonio F. Montemayor is


hereby DISMISSED from

BRICCIO Ricky A. POLLO,


Petitioner,

SO ORDERED.

government

- versus -

just and modest lives.[51] It is for this


reason that the SSAL must be sworn to
and is made accessible to the public,
subject

to

reasonable

administrative

regulations.
Montemayors

repeated

and

consistent

failure to reflect truthfully and adequately


all his assets and liabilities in his SSAL
betrays his claim of innocence and good
faith. Accordingly, we find that the penalty
of dismissal from government service, as
sanctioned by Section 11 (a) and (b) of RA
No. 6713,[52] meted by the Office of the
President against him, is proper.
WHEREFORE, the petition is GRANTED.
The assailed Decision dated October 19,
2005 of the Court of Appeals in CA-G.R. SP
No. 84254 is REVERSED and SET ASIDE.
Accordingly, the March 23, 2004 Decision

G.R

Pre

service.

all

government employees and officials lead

EN BANC

CHAIRPERSON KARINA CONSTANTINODAVID,


DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA,
DIRECTOR IV LYDIA A.
CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND
THE CIVIL SERVICE COMMISSION,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:
This case involves a search of office
computer assigned to a government
employee
who
was
charged
administratively and eventually dismissed
from the service. The employees personal
files stored in the computer were used by
the government employer as evidence of
misconduct.

COR
CAR
VEL
LEO
BRI
PER
BER
DEL
ABA
VIL
PER
MEN
SER
REY
PER

Pro

Oct

Before us is a petition for review on


certiorari under Rule 45 which seeks to
reverse
and
set
aside
the
[1]
Decision dated October 11, 2007 and
Resolution[2] dated February 29, 2008 of
the Court of Appeals (CA). The CA
dismissed the petition for certiorari (CAG.R. SP No. 98224) filed by petitioner
Briccio Ricky A. Pollo to nullify the
proceedings conducted by the Civil
Service Commission (CSC) which found
him
guilty
of dishonesty,
grave
misconduct, conduct prejudicial to the
best interest of the service, and violation
of Republic Act (R.A.) No. 6713 and
penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising
Personnel Specialist of the CSC Regional
Office No. IV and also the Officer-in-Charge
of the Public Assistance and Liaison
Division (PALD) under the Mamamayan
Muna Hindi Mamaya Na program of the
CSC.
On January 3, 2007 at around 2:30 p.m.,
an unsigned letter-complaint addressed to
respondent
CSC
Chairperson
Karina
Constantino-David which was marked
Confidential and sent through a courier
service (LBC) from a certain Alan San
Pascual of Bagong Silang, Caloocan City,
was received by the Integrated Records

Management Office (IRMO) at the CSC


Central Office. Following office practice in
which documents marked Confidential are
left unopened and instead sent to the
addressee, the aforesaid letter was given
directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated
Christmas
and
Happy New Year!

Merry
Advance

As a concerned citizen
of my beloved country, I
would like to ask from you
personally if it is just alright
for an employee of your
agency to be a lawyer of an
accused
govt
employee
having a pending case in
the csc. I honestly think this
is a violation of law and
unfair to others and your
office.
I have known that a person
have been lawyered by one
of your attorny in the region
4 office. He is the chief of
the Mamamayan muna hindi
mamaya na division. He
have been helping many
who have pending cases in
the Csc. The justice in our
govt system will not be

served
if
this
will
continue. Please investigate
this anomaly because our
perception of your clean
and good office is being
tainted.
Concerned Govt employee[3]

Chairperson David immediately formed a


team of four personnel with background in
information technology (IT), and issued a
memo directing them to conduct an
investigation and specifically to back up
all the files in the computers found in the
Mamamayan Muna (PALD) and Legal
divisions.[4] After some briefing, the team
proceeded at once to the CSC-ROIV office
at Panay Avenue, Quezon City. Upon their
arrival thereat around 5:30 p.m., the team
informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo
(Director
Castillo)
and
Director
III
Engelbert Unite (Director Unite) of
Chairperson Davids directive.
The backing-up of all files in the hard disk
of computers at the PALD and Legal
Services Division (LSD) was witnessed by
several
employees,
together
with
Directors Castillo and Unite who closely
monitored said activity. At around 6:00
p.m., Director Unite sent text messages to
petitioner and the head of LSD, who were
both out of the office at the time,
informing them of the ongoing copying of

computer files in their divisions upon


orders of the CSC Chair. The text
messages received by petitioner read:
Gud p.m. This is Atty. Unite
FYI: Co people are going
over the PCs of PALD and
LSD per instruction of the
Chairman. If you can make
it here now it would be
better.
All PCs Of PALD and LSD are
being backed up per memo
of the chair.
CO IT people arrived just
now for this purpose. We
were not also informed
about this.
We cant do anything about
it its a directive from chair.
Memo of the chair was
referring to an anonymous
complaint; ill send a copy of
the memo via mms[5]

Petitioner replied also thru text message


that he was leaving the matter to Director
Unite and that he will just get a
lawyer. Another text message received by
petitioner from PALD staff also reported
the presence of the team from CSC main
office: Sir may mga taga C.O. daw sa
kuarto natin.[6] At around 10:00 p.m. of the
same day, the investigating team finished
their task. The next day, all the computers
in the PALD were sealed and secured for

the purpose of preserving all the files


stored
therein. Several
diskettes
containing the back-up files sourced from
the hard disk of PALD and LSD computers
were turned over to Chairperson David.
The contents of the diskettes were
examined by the CSCs Office for Legal
Affairs (OLA). It was found that most of the
files in the 17 diskettes containing files
copied from the computer assigned to and
being used by the petitioner, numbering
about 40 to 42 documents, were draft
pleadings or letters[7] in connection with
administrative cases in the CSC and other
tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause
Order[8] dated January 11, 2007, requiring
the petitioner, who had gone on extended
leave, to submit his explanation or
counter-affidavit within five days from
notice.
Evaluating
the
subject
documents
obtained from petitioners personal files,
Chairperson David made the following
observations:
Most of the foregoing
files are drafts of legal
pleadings or documents
that are related to or
connected
with
administrative cases that
may broadly be lumped as
pending either in the CSCRO
No. IV, the CSC-NCR, the
CSC-Central Office or other
tribunals. It is also of note

that most of these draft


pleadings are for and on
behalves of parties, who are
facing
charges
as
respondents
in
administrative
cases. This
gives rise to the inference
that the one who prepared
them
was
knowingly,
deliberately and willfully
aiding
and
advancing
interests
adverse
and
inimical to the interest of
the CSC as the central
personnel agency of the
government
tasked
to
discipline misfeasance and
malfeasance
in
the
government
service. The
number of pleadings so
prepared
further
demonstrates
that
such
person
is
not
merely
engaged in an isolated
practice but pursues it with
seeming regularity. It would
also be the height of naivete
or credulity, and certainly
against common human
experience, to believe that
the person concerned had
engaged in this customary
practice
without
any
consideration, and in fact,
one of the retrieved files
(item 13 above) appears to
insinuate the collection of
fees. That
these
draft
pleadings were obtained
from the computer assigned
to Pollo invariably raises the
presumption that he was
the one responsible or had a
hand in their drafting or
preparation
since
the
computer of origin was

within his direct control and


disposition.[9]

Petitioner filed his Comment, denying that


he is the person referred to in the
anonymous letter-complaint which had no
attachments to it, because he is not a
lawyer and neither is he lawyering for
people with cases in the CSC. He accused
CSC officials of conducting a fishing
expedition when they unlawfully copied
and printed personal files in his computer,
and subsequently asking him to submit his
comment which violated his right against
self-incrimination. He asserted that he had
protested the unlawful taking of his
computer done while he was on leave,
citing the letter dated January 8, 2007
in which he informed Director Castillo that
the files in his computer were his personal
files and those of his sister, relatives,
friends and some associates and that he is
not authorizing their sealing, copying,
duplicating and printing as these would
violate his constitutional right to privacy
and protection against self-incrimination
and warrantless search and seizure. He
pointed out that though government
property,
the
temporary
use
and
ownership of the computer issued under a
Memorandum of Receipt (MR) is ceded to
the employee who may exercise all
attributes of ownership, including its use
for
personal
purposes. As
to
the
anonymous letter, petitioner argued that it

is not actionable as it failed to comply with


the requirements of a formal complaint
under the Uniform Rules on Administrative
Cases in the Civil Service (URACC). In view
of the illegal search, the files/documents
copied from his computer without his
consent is thus inadmissible as evidence,
being fruits of a poisonous tree.[10]

On February 26, 2007, the CSC issued


Resolution No. 070382[11] finding prima
facie case against the petitioner and
charging him with Dishonesty, Grave
Misconduct, Conduct Prejudicial to the
Best Interest of the Service and Violation
of R.A. No. 6713 (Code of Conduct and
Ethical Standards for Public Officials and
Employees). Petitioner was directed to
submit his answer under oath within five
days from notice and indicate whether he
elects a formal investigation. Since the
charges fall under Section 19 of the
URACC, petitioner was likewise placed
under 90 days preventive suspension
effective immediately upon receipt of the
resolution. Petitioner received a copy of
Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For


Reconsideration, to Dismiss and/or to
Defer) assailing the formal charge as
without basis having proceeded from an
illegal search which is beyond the
authority of the CSC Chairman, such

power
pertaining
solely
to
the
court. Petitioner reiterated that he never
aided any people with pending cases at
the CSC and alleged that those files found
in his computer were prepared not by him
but by certain persons whom he
permitted, at one time or another, to make
use of his computer out of close
association or friendship. Attached to the
motion were the affidavit of Atty. Ponciano
R. Solosa who entrusted his own files to be
kept at petitioners CPU and Atty. Eric N.
Estrellado, the latter being Atty. Solosas
client who attested that petitioner had
nothing to do with the pleadings or bill for
legal fees because in truth he owed legal
fees to Atty. Solosa and not to
petitioner. Petitioner contended that the
case should be deferred in view of the
prejudicial question raised in the criminal
complaint he filed before the Ombudsman
against
Director
Buensalida,
whom
petitioner believes had instigated this
administrative case. He also prayed for
the lifting of the preventive suspension
imposed on him. In its Resolution No.
070519[12] dated March 19, 2007, the CSC
denied the omnibus motion. The CSC
resolved to treat the said motion as
petitioners answer.
On March 14, 2007, petitioner filed
an Urgent Petition[13] under Rule 65 of the
Rules of Court, docketed as CA-G.R. SP No.
98224, assailing both the January 11,

2007 Show-Cause Order and Resolution


No. 070382 dated February 26, 2007 as
having been issued with grave abuse of
discretion amounting to excess or total
absence of jurisdiction. Prior to this,
however,
petitioner
lodged
an
administrative/criminal complaint against
respondents
Directors
Racquel
D.G.
Buensalida (Chief of Staff, Office of the
CSC Chairman) and Lydia A. Castillo (CSCRO IV) before the Office of the
Ombudsman, and a separate complaint for
disbarment against Director Buensalida.[14]
On April 17, 2007, petitioner received a
notice of hearing from the CSC setting the
formal investigation of the case on April
30, 2007. On April 25, 2007, he filed in the
CA an Urgent Motion for the issuance of
TRO and preliminary injunction.[15] Since
he failed to attend the pre-hearing
conference scheduled on April 30, 2007,
the CSC reset the same to May 17,
2007 with warning that the failure of
petitioner and/or his counsel to appear in
the said pre-hearing conference shall
entitle the prosecution to proceed with the
formal investigation ex-parte.[16] Petitioner
moved to defer or to reset the pre-hearing
conference, claiming that the investigation
proceedings should be held in abeyance
pending the resolution of his petition by
the CA. The CSC denied his request and
again
scheduled
the
pre-hearing
conference on May 18, 2007 with similar

warning on the consequences of petitioner


and/or his counsels non-appearance.
[17]
This prompted petitioner to file another
motion in the CA, to cite the respondents,
including the hearing officer, in indirect
contempt.[18]
On June 12, 2007, the CSC issued
Resolution
No.
071134[19] denying
petitioners motion to set aside the denial
of his motion to defer the proceedings and
to inhibit the designated hearing officer,
Atty. Bernard G. Jimenez. The hearing
officer was directed to proceed with the
investigation proper with dispatch.
In view of the absence of petitioner and
his counsel, and upon the motion of the
prosecution, petitioner was deemed to
have waived his right to the formal
investigation which then proceeded ex
parte.
On July 24, 2007, the CSC issued
Resolution No. 071420,[20] the dispositive
part of which reads:
WHEREFORE,
foregoing
premises
considered, the Commission
hereby finds Briccio A.
Pollo, a.k.a. Ricky A. Pollo
GUILTY of Dishonesty, Grave
Misconduct,
Conduct
Prejudicial to the Best
Interest of the Service and
Violation of Republic Act
6713. He
is
meted

the penalty of DISMISSAL


FROM THE SERVICE with all
its
accessory
penalties,
namely, disqualification to
hold public office, forfeiture
of
retirement
benefits,
cancellation of civil service
eligibilities and bar from
taking future civil service
examinations.[21]

On the paramount issue of the legality of


the search conducted on petitioners
computer, the CSC noted the dearth of
jurisprudence relevant to the factual
milieu of this case where the government
as employer invades the private files of an
employee stored in the computer assigned
to him for his official use, in the course of
initial investigation of possible misconduct
committed by said employee and without
the latters consent or participation. The
CSC thus turned to relevant rulings of the
United States Supreme Court, and cited
the
leading
case
of OConnor
v.
Ortega[22] as authority for the view that
government agencies, in their capacity as
employers, rather than law enforcers,
could validly conduct search and seizure in
the governmental workplace without
meeting the probable cause or warrant
requirement
for
search
and
seizure. Another ruling cited by the CSC is
the more recent case of United States v.
Mark L. Simons[23] which declared that the
federal agencys computer use policy
foreclosed any inference of reasonable

expectation of privacy on the part of its


employees. Though the Court therein
recognized that such policy did not, at the
same time, erode the respondents
legitimate expectation of privacy in the
office in which the computer was installed,
still, the warrantless search of the
employees office was upheld as valid
because a government employer is
entitled to conduct a warrantless search
pursuant to an investigation of workrelated misconduct provided the search is
reasonable in its inception and scope.
With the foregoing American jurisprudence
as benchmark, the CSC held that
petitioner has no reasonable expectation
of privacy with regard to the computer he
was using in the regional office in view of
the CSC computer use policy which
unequivocally declared that a CSC
employee cannot assert any privacy right
to a computer assigned to him. Even
assuming that there was no such
administrative policy, the CSC was of the
view that the search of petitioners
computer successfully passed the test of
reasonableness for warrantless searches
in the workplace as enunciated in the
aforecited authorities. The CSC stressed
that it pursued the search in its capacity
as government employer and that it was
undertaken
in
connection
with
an
investigation
involving
work-related
misconduct, which exempts it from the

warrant
requirement
under
the
Constitution. With
the
matter
of
admissibility of the evidence having been
resolved, the CSC then ruled that the
totality of evidence adequately supports
the
charges
of
grave
misconduct,
dishonesty, conduct prejudicial to the best
interest of the service and violation of R.A.
No. 6713 against the petitioner. These
grave infractions justified petitioners
dismissal from the service with all its
accessory penalties.
In his Memorandum[24] filed in the
CA, petitioner moved to incorporate the
above resolution dismissing him from the
service in his main petition, in lieu of the
filing of an appeal via a Rule 43 petition. In
a subsequent motion, he likewise prayed
for the inclusion of Resolution No.
071800[25] which denied his motion for
reconsideration.
By Decision dated October 11,
2007, the CA dismissed the petition for
certiorari after finding no grave abuse of
discretion committed by respondents CSC
officials. The CA held that: (1) petitioner
was not charged on the basis of the
anonymous letter but from the initiative of
the CSC after a fact-finding investigation
was conducted and the results thereof
yielded a prima facie case against him; (2)
it could not be said that in ordering the
back-up of files in petitioners computer

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

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

DEFINITION
[OF]
GRAVE
ABUSE OF DISCRETION TO
ONE
INVOLVING
AND
TAINTED WITH PERSONAL
HOSTILITY. IT
LIKEWISE ERRED IN
HOLDING
THAT DATA
STORED
IN
THE
GOVERNMENT COMPUTERS
ARE
GOVERNMENT
PROPERTIES INCLUDING THE
PERSONAL FILES WHEN THE
CONTRARY IS PROVIDED
UNDER SECTION 14 OF OM.
10
s.
2002.
AND
GRIEVOUSLY ERRED STILL
WHEN IT RULED THAT
RESPONDENT
DAVID
BY
VIRTUE OF O.M. 10 DID NOT
ENCROACH ON THE DUTIES
AND FUNCTIONS OF A
JUDGE
PURSUANT
TO
ARTICLE III, SECTION 2 OF
THE
1987
PHILIPPINE
CONSTITUTION;
IV
THE HONORABLE COURT
ERRED WHEN IT FAILED TO
CONSIDER ALL OTHER NEW
ARGUMENTS,
ADDITIONAL
EVIDENCE
HEREUNTO
SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND
TAKE ACTION ON THE 2
MOTIONS TO ADMIT AND
INCORPORATE
CSC
RESOLUTION NOS. 07-1420
DATED JULY 24, 2007 AND
CSC RESOLUTION 07-1800
DATED
SEPTEMBER
10,
2007. IT DID NOT RULE
LIKEWISE ON THE FOUR
URGENT
MOTION
TO

RESOLVE
ANCILLARY
PRAYER FOR TRO.[26]
Squarely raised by the petitioner is the
legality of the search conducted on his
office computer and the copying of his
personal files without his knowledge and
consent, alleged as a transgression on his
constitutional right to privacy.
The right to privacy has been
accorded recognition in this jurisdiction as
a facet of the right protected by the
guarantee against unreasonable search
and seizure under Section 2, Article III of
the 1987 Constitution,[27] which provides:
SEC. 2. The right of
the people to be secure in
their
persons,
houses,
papers, and effects against
unreasonable searches and
seizures of whatever nature
and for any purpose shall be
inviolable, and no search
warrant or warrant of arrest
shall issue except upon
probable
cause
to
be
determined personally by
the judge after examination
under oath or affirmation of
the complainant and the
witnesses he may produce,
and particularly describing
the place to be searched
and the persons or things to
be seized.

The constitutional guarantee is not a


prohibition of all searches and seizures but

only of unreasonable searches and


seizures.[28] But to fully understand this
concept and application for the purpose of
resolving the issue at hand, it is essential
that we examine the doctrine in the light
of
pronouncements
in
another
jurisdiction. As
the
Court
declared
[29]
in People v. Marti :
Our
present
constitutional provision on
the
guarantee
against
unreasonable search and
seizure had its origin in the
1935 Charter which, worded
as follows:
The
right of the
people to be
secure in their
persons,
houses,
papers
and
effects
against
unreasonable
searches and
seizures shall
not
be
violated, and
no
warrants
shall issue but
upon probabl
e cause, to be
determined
by the judge
after
examination
under oath or
affirmation of
the
complainant

and
the
witnesses he
may produce,
and
particularly
describing the
place to be
searched, and
the
persons
or things to
be
seized.
(Sec.
1[3],
Article III)
was in turn derived almost
verbatim from the Fourth
Amendment to the United
States Constitution. As such,
the Court may turn to the
pronouncements
of
the
United
States
Federal
Supreme Court and State
Appellate Courts which are
considered doctrinal in this
jurisdiction.[30]

In the 1967 case of Katz v. United States,


[31]
the US Supreme Court held that the act
of FBI agents in electronically recording a
conversation made by petitioner in an
enclosed public telephone booth violated
his right to privacy and constituted a
search and seizure. Because the petitioner
had a reasonable expectation of privacy in
using the enclosed booth to make a
personal telephone call, the protection of
the Fourth Amendment extends to such
area. In the concurring opinion of Mr.
Justice Harlan, it was further noted that
the existence of privacy right under prior

decisions involved a two-fold requirement:


first, that a person has exhibited an actual
(subjective) expectation of privacy; and
second, that the expectation be one that
society is prepared to recognize as
reasonable (objective).[32]
In Mancusi v. DeForte[33] which addressed
the
reasonable
expectations
of private employees in the workplace, the
US Supreme Court held that a union
employee had Fourth Amendment rights
with regard to an office at union
headquarters that he shared with other
union officials, even as the latter or their
guests could enter the office. The Court
thus recognized that employees may have
a reasonable expectation of privacy
against intrusions by police.
That the Fourth Amendment equally
applies to a government workplace was
addressed in the 1987 case of OConnor v.
Ortega[34] where a physician, Dr. Magno
Ortega, who was employed by a state
hospital, claimed a violation of his Fourth
Amendment rights when hospital officials
investigating charges of mismanagement
of the psychiatric residency program,
sexual harassment of female hospital
employees
and
other
irregularities
involving his private patients under the
state medical aid program, searched his
office and seized personal items from his
desk and filing cabinets. In that case, the

Court
categorically
declared
that
[i]ndividuals
do
not
lose
Fourth
Amendment rights merely because they
work for the government instead of a
private employer.[35] A plurality of four
Justices concurred that the correct
analysis has two steps: first, because
some government offices may be so open
to fellow employees or the public that no
expectation of privacy is reasonable, a
court must consider [t]he operational
realities of the workplace in order to
determine whether an employees Fourth
Amendment rights are implicated; and
next, where an employee has a legitimate
privacy
expectation,
an
employers
intrusion
on
that
expectation
for
noninvestigatory, work-related purposes,
as well as for investigations of workrelated misconduct, should be judged by
the standard of reasonableness under all
the circumstances.[36]
On the matter of government employees
reasonable expectations of privacy in their
workplace, OConnor teaches:
x
x
x
Public
employees expectations of
privacy in their offices,
desks, and file cabinets, like
similar
expectations
of
employees in the private
sector, may be reduced by
virtue
of
actual
office
practices and procedures, or
by legitimate regulation. x x
x
The
employees

expectation of privacy must


be assessed in the context
of
the
employment
relation. An office is seldom
a private enclave free from
entry by supervisors, other
employees, and business
and
personal
invitees. Instead, in many
cases offices are continually
entered
by
fellow
employees
and
other
visitors during the workday
for
conferences,
consultations, and other
work-related visits. Simply
put, it is the nature of
government
offices
that
others
such
as
fellow
employees,
supervisors,
consensual visitors, and the
general public may have
frequent
access to
an
individuals office. We agree
with JUSTICE SCALIA that
[c]onstitutional
protection
against
unreasonable
searches by the government
does not disappear merely
because the government
has the right to make
reasonable intrusions in its
capacity as employer, x x x
but some
government
offices may be so open to
fellow employees or the
public
that
no
expectation of privacy is
reasonable. x x x Given
the great variety of work
environments
in
the
public
sector,
the
question of whether an
employee
has
a
reasonable expectation
of
privacy
must
be

addressed on a case-bycase
basis.[37] (Citations
omitted;
emphasis
supplied.)

On the basis of the established rule in


previous cases, the US Supreme Court
declared
that
Dr.
Ortegas
Fourth
Amendment rights are implicated only if
the conduct of the hospital officials
infringed an expectation of privacy that
society is prepared to consider as
reasonable. Given
the
undisputed
evidence that respondent Dr. Ortega did
not share his desk or file cabinets with any
other
employees,
kept
personal
correspondence and other private items in
his own office while those work-related
files (on physicians in residency training)
were stored outside his office, and there
being no evidence that the hospital had
established any reasonable regulation or
policy discouraging employees from
storing personal papers and effects in
their desks or file cabinets (although the
absence of such a policy does not create
any expectation of privacy where it would
not otherwise exist), the Court concluded
that Dr. Ortega has a reasonable
expectation of privacy at least in his desk
and file cabinets.[38]
Proceeding to the next inquiry as to
whether the search conducted by hospital
officials
was
reasonable,

the OConnor plurality decision discussed


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

against the governments


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

became a
matter. x x x

constitutional

xxxx
The
governmental
interest
justifying
workrelated intrusions by public
employers is the efficient
and proper operation of the
workplace. Government
agencies provide myriad
services to the public, and
the work of these agencies
would suffer if employers
were required to have
probable cause before they
entered an employees desk
for the purpose of finding a
file or piece of office
correspondence. Indeed, it
is difficult to give the
concept of probable cause,
rooted as it is in the criminal
investigatory context, much
meaning when the purpose
of a search is to retrieve a
file
for
work-related
reasons. Similarly,
the
concept of probable cause
has little meaning for a
routine inventory conducted
by public employers for the
purpose of securing state
property. x x x To ensure the
efficient
and
proper
operation of the agency,
therefore, public employers
must be given wide latitude
to enter employee offices
for
work-related,
noninvestigatory reasons.
We come to a similar
conclusion
for
searches
conducted pursuant to an

investigation of work-related
employee misconduct. Even
when employers conduct an
investigation, they have an
interest
substantially
different from the normal
need for law enforcement. x
x x Public employers have
an interest in ensuring that
their agencies operate in an
effective
and
efficient
manner, and the work of
these agencies inevitably
suffers from the inefficiency,
incompetence,
mismanagement, or other
work-related misfeasance of
its employees. Indeed, in
many
cases,
public
employees are entrusted
with
tremendous
responsibility,
and
the
consequences
of
their
misconduct
or
incompetence to both the
agency and the public
interest can be severe. In
contrast to law enforcement
officials, therefore, public
employers are not enforcers
of the criminal law; instead,
public employers have a
direct
and
overriding
interest in ensuring that the
work of the agency is
conducted in a proper and
efficient
manner. In
our
view, therefore, a probable
cause requirement for
searches of the type at
issue here would impose
intolerable burdens on
public
employers. The
delay in correcting the
employee
misconduct
caused by the need for

probable cause rather


than
reasonable
suspicion
will
be
translated into tangible
and
often irreparable
damage to the agencys
work, and ultimately to
the public interest. x x x
xxxx
In
sum,
we
conclude that the special
needs,
beyond
the
normal need for law
enforcement
make
theprobable-cause
requirement
impracticable, x x x for
legitimate, work-related
noninvestigatory
intrusions as well as
investigations of workrelated
misconduct. A
standard of reasonableness
will neither unduly burden
the efforts of government
employers to ensure the
efficient
and
proper
operation of the workplace,
nor
authorize
arbitrary
intrusions upon the privacy
of public employees. We
hold, therefore, that public
employer intrusions on
the
constitutionally
protected
privacy
interests of government
employees
for
noninvestigatory, workrelated purposes, as well
as for investigations of
work-related
misconduct, should
be
judged by the standard
of reasonableness under

all
the
circumstances. Under this
reasonableness
standard, both
the
inception and the scope
of the intrusion must be
reasonable:
Determining
the
reasonablene
ss
of
any
search
involves
a
twofold
inquiry: first,
one
must
consider
whether
theaction was
justified at its
inception, x x
x
; second,
one
must
determine
whether the
search
as
actually
conducted
was
reasonably
related
in
scope to the
circumstance
s
which
justified
the
interference
in the first
place, x x x
Ordinarily, a search
of an employees office
by a supervisor will be
justified at its inception
when
there
are
reasonable grounds for

suspecting
that
the
search
will
turn
up
evidence
that
the
employee is guilty of
work-related
misconduct, or that the
search is necessary for a
noninvestigatory
workrelated purpose such as
to retrieve a needed file. x x
x The search will be
permissible in its scope
when
the
measures
adopted are reasonably
related to the objectives
of the search and not
excessively intrusive in
light of the nature of the
[misconduct].
x
x
x[39] (Citations
omitted;
emphasis supplied.)

Since the District Court granted summary


judgment without a hearing on the factual
dispute as to the character of the search
and neither was there any finding made as
to the scope of the search that was
undertaken, the case was remanded to
said court for the determination of the
justification for the search and seizure,
and evaluation of the reasonableness of
both the inception of the search and its
scope.
In OConnor the Court recognized
that special needs authorize warrantless
searches involving public employees for
work-related reasons. The Court thus laid
down a balancing test under which

government interests are weighed against


the employees reasonable expectation of
privacy. This
reasonableness
test
implicates neither probable cause nor the
warrant requirement, which are related to
law enforcement.[40]
OConnor was
applied
in
subsequent cases raising issues on
employees
privacy
rights
in
the
workplace. One of these cases involved a
government employers search of an office
computer, United States v. Mark L.
Simons[41] where the defendant Simons,
an employee of a division of the Central
Intelligence Agency (CIA), was convicted
of receiving and possessing materials
containing child pornography. Simons was
provided with an office which he did not
share with anyone, and a computer with
Internet access.The agency had instituted
a policy on computer use stating that
employees were to use the Internet for
official government business only and that
accessing
unlawful
material
was
specifically prohibited. The policy also
stated that users shall understand that the
agency will periodically audit, inspect,
and/or monitor the users Internet access
as deemed appropriate. CIA agents
instructed
its
contractor
for
the
management of the agencys computer
network,
upon
initial
discovery
of
prohibited internet activity originating
from Simons computer, to conduct a

remote monitoring and examination of


Simons computer. After confirming that
Simons had indeed downloaded pictures
that were pornographic in nature, all the
files on the hard drive of Simons computer
were copied from a remote work
station. Days
later,
the
contractors
representative finally entered Simons
office, removed the original hard drive on
Simons computer, replaced it with a copy,
and gave the original to the agency
security officer. Thereafter, the agency
secured warrants and searched Simons
office in the evening when Simons was not
around. The
search
team copied the
contents of Simons computer; computer
diskettes found in Simons desk drawer;
computer files stored on the zip drive or
on zip drive diskettes; videotapes; and
various documents, including personal
correspondence. At
his
trial,
Simons
moved to suppress these evidence,
arguing that the searches of his office and
computer violated his Fourth Amendment
rights. After a hearing, the district court
denied the motion and Simons was found
guilty as charged.
Simons
appealed
his
convictions. The US Supreme Court ruled
that the searches of Simons computer and
office
did
not
violate
his
Fourth
Amendment rights and the first search
warrant was valid. It held that the search
remains
valid
under

the OConnor exception to the warrant


requirement because evidence of the
crime was discovered in the course of an
otherwise
proper
administrative
inspection. Simons
violation
of
the
agencys Internet policy happened also to
be a violation of criminal law; this does not
mean that said employer lost the capacity
and
interests
of an
employer. The
warrantless entry into Simons office was
reasonable under the Fourth Amendment
standard announced inOConnor because
at the inception of the search, the
employer had reasonable grounds for
suspecting that the hard drive would yield
evidence of misconduct, as the employer
was already aware that Simons had
misused his Internet access to download
over a thousand pornographic images. The
retrieval of the hard drive was reasonably
related to the objective of the search, and
the
search
was
not
excessively
intrusive. Thus, while Simons had a
reasonable expectation of privacy in his
office, he did not have such legitimate
expectation of privacy with regard to the
files in his computer.
x x x To establish a
violation of his rights under
the
Fourth
Amendment,
Simons must first prove that
he
had
a
legitimate
expectation of privacy in the
place searched or the item
seized. x x x And, in order to
prove
a
legitimate
expectation
of
privacy,

Simons must show that his


subjective expectation of
privacy is one that society is
prepared to accept as
objectively reasonable. x x x
xxxx
x x x We conclude
that the remote searches of
Simons computer did not
violate
his
Fourth
Amendment rights because,
in light of the Internet
policy, Simons lacked a
legitimate expectation of
privacy
in
the
files
downloaded
from
the
Internet. Additionally,
we
conclude that Simons Fourth
Amendment rights were not
violated by FBIS retrieval of
Simons hard drive from his
office.
Simons
did
not
have
a
legitimate
expectation of privacy
with regard to the record
or fruits of his Internet
use in light of the FBIS
Internet
policy. The
policy clearly stated that
FBIS
would
audit,
inspect, and/or monitor
employees use of the
Internet, including all file
transfers, all websites
visited, and all e-mail
messages, as deemed
appropriate. x x x This
policy placed employees on
notice that they could not
reasonably expect that their
Internet activity would be
private. Therefore,

regardless
of
whether
Simons
subjectively
believed that the files he
transferred
from
the
Internet were private, such
a belief was not objectively
reasonable
after
FBIS
notified him that it would be
overseeing
his
Internet
use. x x x Accordingly, FBIS
actions
in
remotely
searching and seizing the
computer
files
Simons
downloaded
from
the
Internet did not violate the
Fourth Amendment.
xxxx
The burden is on
Simons to prove that he
had
a
legitimate
expectation of privacy in
his office. x x x Here,
Simons has shown that he
had an office that he did not
share. As noted above, the
operational
realities
of
Simons workplace may have
diminished his legitimate
privacy
expectations. However,
there is no evidence in the
record of any workplace
practices, procedures, or
regulations that had such an
effect. We
therefore
conclude that, on this
record, Simons possessed
a legitimate expectation
of privacy in his office.
xxxx
this

In the final analysis,


case
involves
an

employees
supervisor
entering
the
employees
government
office
and
retrieving
a
piece
of
government equipment in
which the employee had
absolutely no expectation of
privacy equipment that the
employer knew contained
evidence
of
crimes
committed by the employee
in the employees office. This
situation may be contrasted
with one in which the
criminal
acts
of
a
government employee were
unrelated
to
his
employment. Here,
there
was a conjunction of the
conduct that violated the
employers policy and the
conduct that violated the
criminal law. We consider
that FBIS intrusion into
Simons office to retrieve the
hard drive is one in which a
reasonable employer might
engage. x x x[42] (Citations
omitted;
emphasis
supplied.)

This Court, in Social Justice Society (SJS) v.


Dangerous Drugs Board[43] which involved
the constitutionality of a provision in R.A.
No. 9165 requiring mandatory drug testing
of candidates for public office, students of
secondary and tertiary schools, officers
and employees of public and private
offices, and persons charged before the
prosecutors office with certain offenses,
have also recognized the fact that there

may be such legitimate


privacy in the workplace.

intrusion

of

The first factor to


consider in the matter of
reasonableness
is
the
nature
of
the
privacy
interest upon which the
drug testing, which effects a
search within the meaning
of Sec. 2, Art. III of the
Constitution, intrudes. In
this case, the office or
workplace serves as the
backdrop for the analysis of
the privacy expectation of
the employees and the
reasonableness
of
drug
testing
requirement. The
employees
privacy
interest in an office is to
a
large
extent
circumscribed
by
the
companys work policies,
the collective bargaining
agreement,
if
any,
entered
into
by
management
and
the
bargaining unit, and the
inherent right of the
employer to maintain
discipline and efficiency
in the workplace. Their
privacy expectation in a
regulated
office
environment is, in fine,
reduced; and a degree of
impingement upon such
privacy has been upheld.
(Emphasis supplied.)

Applying the analysis and principles


announced in OConnor and Simons to the

case at bar, we now address the following


questions: (1) Did
petitioner
have
a
reasonable expectation of privacy in his
office and computer files?; and (2) Was the
search authorized by the CSC Chair, the
copying of the contents of the hard drive
on petitioners computer reasonable in its
inception and scope?
In this inquiry, the relevant surrounding
circumstances to consider include (1) the
employees relationship to the item seized;
(2) whether the item was in the immediate
control of the employee when it was
seized; and (3) whether the employee
took actions to maintain his privacy in the
item. These factors are relevant to both
the subjective and objective prongs of the
reasonableness inquiry, and we consider
the two questions together.[44] Thus, where
the employee used a password on his
computer, did not share his office with coworkers and kept the same locked, he had
a legitimate expectation of privacy and
any search of that space and items
located therein must comply with the
Fourth Amendment.[45]
We answer the first in the
negative. Petitioner failed to prove that he
had an actual (subjective) expectation of
privacy either in his office or governmentissued computer which contained his
personal files. Petitioner did not allege
that he had a separate enclosed office

which he did not share with anyone, or


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

expectation of privacy in his computer as


he claims, such is negated by the
presence of policy regulating the use of
office computers, as in Simons.
Office
Memorandum
No.
10,
S.
2002 Computer Use Policy (CUP) explicitly
provides:
POLICY
1.

The Computer
Resources are
the
property of the Civil
Service
Commission
and may be used only
for legitimate business
purposes.

2.

Users shall
be
permitted
access
to Computer
Resources to assist them
in the performance of
their respective jobs.

3.

Use of the Computer


Resources is a privilege
that may be revoked at
any given time.

xxxx
No
Expectation
Privacy

Moreover, even assuming arguendo, in the


absence of allegation or proof of the
aforementioned factual circumstances,
that petitioner had at least a subjective

4. No

of

expectation
of
privacy. Users except
the Members of the
Commission shall not
have an expectation of

privacy in anything
they
create,
store,
send, or receive on the
computer system.
The Head of the Office for
Recruitment,
Examination
and
Placement shall select
and
assign Users to
handle the confidential
examination data and
processes.
5. Waiver
of
privacy
rights. Users expressly
waive any right to
privacy
in anything
they
create,
store,
send, or receive on the
computer through the
Internet or any other
computer
network.Users underst
and that the CSC may
use
human
or
automated
means
to monitor the use
of
its Computer
Resources.
6. Non-exclusivity
of
Computer
Resources. A computer
resource
is not
a
personal property or
for the exclusive use
of a User to whom a
memorandum
of
receipt (MR) has been
issued. It
can
be
shared or operated by
other users. However,
he
is
accountable
therefor
and
must

insure its care


maintenance.

and

regardless of whether
those materials have
been encoded with a
particular Users passw
ord. Only members of
the Commission shall
authorize
the
application of the said
global passwords.

xxxx
Passwords
12. Responsibility
for
passwords. Users shall
be
responsible
for
safeguarding
their
passwords for access
to
the
computer
system. Individual
passwords shall not be
printed, stored online,
or
given
to
others. Users shall be
responsible
for
all
transactions
made
using
their
passwords. No
User
may
access
the
computer system with
another
Users
password or account.
13. Passwords do not imply
privacy. Use
of
passwords
to
gain
access
to
the
computer system or to
encode particular files
or messages does not
imply that Users have
an
expectation
of
privacy in the material
they create or receive
on
the
computer
system.
The
Civil
Service
Commission
has global passwords
that permit access to
all materials stored on
its
networked
computer
system

x
x
x[47] (Emphasis
supplied.)

The CSC in this case had implemented a


policy that put its employees on notice
that they have no expectation of privacy
in anything they create, store, send or
receive on the office computers, and that
the CSC may monitor the use of the
computer resources using both automated
or human means. This implies that on-thespot inspections may be done to ensure
that the computer resources were used
only
for
such
legitimate
business
purposes.
One
of
the
factors
stated
in OConnor which
are
relevant
in
determining
whether
an
employees
expectation of privacy in the workplace is
reasonable is the existence of a workplace
privacy policy.[48] In one case, the US Court
of Appeals Eighth Circuit held that a state
university employee has not shown that
he had a reasonable expectation of
privacy in his computer files where the
universitys computer policy, the computer

user is informed not to expect privacy if


the university has a legitimate reason to
conduct a search. The user is specifically
told that computer files, including e-mail,
can be searched when the university is
responding to a discovery request in the
course of litigation.Petitioner employee
thus cannot claim a violation of Fourth
Amendment
rights
when
university
officials conducted a warrantless search of
his computer for work-related materials.[49]
As to the second point of inquiry on the
reasonableness of the search conducted
on petitioners computer, we answer in the
affirmative.
The search of petitioners computer files
was conducted in connection with
investigation of work-related misconduct
prompted by an anonymous lettercomplaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV
where the head of the Mamamayan Muna
Hindi Mamaya Na division is supposedly
lawyering for individuals with pending
cases in the CSC. Chairperson David
stated in her sworn affidavit:
8. That prior to this, as early
as
2006,
the
undersigned
has
received several text
messages
from
unknown
sources
adverting to certain
anomalies
in
Civil

Service
Commission
Regional
Office
IV
(CSCRO IV) such as,
staff
working
in
another
government
agency, selling cases
and aiding parties with
pending
cases,
all
done
during
office
hours and involved
the use of government
properties;
9. That said text messages
were not investigated
for
lack
of
any
verifiable leads and
details sufficient to
warrant
an
investigation;
10. That the anonymous
letter provided the
lead and details as it
pinpointed
the
persons and divisions
involved in the alleged
irregularities
happening in CSCRO
IV;
11. That in view of the
seriousness
of
the
allegations
of
irregularities
happening in CSCRO
IV and its effect on the
integrity
of
the
Commission, I decided
to form a team of
Central Office staff to
back up the files in the
computers
of
the
Public Assistance and
Liaison Division (PALD)
and Legal Division;

x x x x[50]

A search by a government employer of an


employees office is justified at inception
when there are reasonable grounds for
suspecting that it will turn up evidence
that the employee is guilty of work-related
misconduct.[51] Thus, in the 2004 case
decided by the US Court of Appeals Eighth
Circuit, it was held that where a
government agencys computer use policy
prohibited electronic
messages
with
pornographic
content
and
in
addition expressly
provided that
employees do not have any personal
privacy rights regarding their use of the
agency
information
systems
and
technology, the government employee
had no legitimate expectation of privacy
as to the use and contents of his office
computer, and therefore evidence found
during warrantless search of the computer
was admissible in prosecution for child
pornography. In that case, the defendant
employees computer hard drive was first
remotely examined by a computer
information technician after his supervisor
received
complaints
that
he
was
inaccessible
and
had
copied
and
distributed
non-work-related
e-mail
messages throughout the office. When the
supervisor confirmed that defendant had
used his computer to access the
prohibited websites, in contravention of
the express policy of the agency, his

computer tower and floppy disks were


taken
and
examined. A
formal
administrative investigation ensued and
later search warrants were secured by the
police department. The initial remote
search of the hard drive of petitioners
computer, as well as the subsequent
warrantless searches was held as valid
under the OConnor ruling that a public
employer can investigate work-related
misconduct so long as any search is
justified at inception and is reasonably
related in scope to the circumstances that
justified it in the first place.[52]
Under the facts obtaining, the search
conducted on petitioners computer was
justified at its inception and scope. We
quote with approval the CSCs discussion
on the reasonableness of its actions,
consistent as it were with the guidelines
established by OConnor:
Even conceding for a
moment that there is no
such administrative policy,
there is no doubt in the
mind of the Commission
that the search of Pollos
computer has successfully
passed
the
test
of
reasonableness
for
warrantless searches in the
workplace as enunciated in
the
above-discussed
American
authorities. It
bears emphasis that the
Commission pursued the
search in its capacity as

a government employer
and
that
it
was
undertaken
in
connection
with
an
investigation involving a
work-related misconduct,
one of the circumstances
exempted from the warrant
requirement. At
the
inception of the search, a
complaint
was
received
recounting that a certain
division chief in the CSCRO
No. IV was lawyering for
parties
having
pending
cases with the said regional
office
or
in
the
Commission. The nature of
the
imputation
was
serious,
as
it
was
grievously disturbing. If,
indeed, a CSC employee
was found to be furtively
engaged in the practice of
lawyering for parties with
pending cases before the
Commission would be a
highly repugnant scenario,
then such a case would
have
shattering
repercussions. It
would
undeniably cast clouds of
doubt upon the institutional
integrity of the Commission
as a quasi-judicial agency,
and in the process, render it
less effective in fulfilling its
mandate as an impartial
and objective dispenser of
administrative justice. It is
settled that a court or an
administrative tribunal must
not
only
be
actually
impartial but must be seen
to be so, otherwise the
general public would not

have
any
trust
confidence in it.

and

Considering
the
damaging nature of the
accusation,
the
Commission had to act
fast, if only to arrest or limit
any
possible
adverse
consequence
or
fallout. Thus, on the same date
that the complaint was
received, a search was
forthwith
conducted
involving
the
computer
resources in the concerned
regional office. That it was
the computers that were
subjected to the search
was justified since these
furnished
the
easiest
means for an employee
to encode and store
documents. Indeed, the
computers would be a
likely starting point in
ferreting
out
incriminating evidence.
Concomitantly,
the
ephemeral
nature
of
computer files, that is,
they could easily be
destroyed at a click of a
button,
necessitated
drastic and immediate
action. Pointedly,
to
impose the need to comply
with the probable cause
requirement
would
invariably
defeat
the
purpose of the wok-related
investigation.
Worthy to mention,
too, is the fact that the
Commission effected the

warrantless search in an
open
and
transparent
manner. Officials and some
employees of the regional
office, who happened to be
in the vicinity, were on hand
to observe the process until
its completion. In addition,
the respondent himself was
duly notified, through text
messaging, of the search
and
the
concomitant
retrieval of files from his
computer.
All
in
all,
the
Commission is convinced
that the warrantless search
done on computer assigned
to Pollo was not, in any way,
vitiated
with
unconstitutionality. It was a
reasonable exercise of the
managerial prerogative of
the Commission as an
employer aimed at ensuring
its operational effectiveness
and efficiency by going after
the
work-related
misfeasance
of
its
employees. Consequently,
the evidence derived from
the questioned search are
deemed admissible.[53]

Petitioners claim of violation of his


constitutional right to privacy must
necessarily
fail. His
other
argument
invoking the privacy of communication
and correspondence under Section 3(1),
Article III of the 1987 Constitution is also
untenable considering the recognition

accorded to certain legitimate intrusions


into the privacy of employees in the
government
workplace
under
the
aforecited authorities. We likewise find no
merit
in his
contention
that OConnor and Simons are not relevant
because the present case does not involve
a criminal offense like child pornography.
As already mentioned, the search of
petitioners computer was justified there
being reasonable ground for suspecting
that the files stored therein would yield
incriminating evidence relevant to the
investigation being conducted by CSC as
government employer of such misconduct
subject of the anonymous complaint. This
situation clearly falls under the exception
to
the
warrantless
requirement
in
administrative
searches
defined
in OConnor.
The Court is not unaware of our
decision in Anonymous Letter-Complaint
against Atty. Miguel Morales, Clerk of
Court,
Metropolitan
Trial
Court
of
[54]
Manila
involving a branch clerk (Atty.
Morales) who was investigated on the
basis of an anonymous letter alleging that
he was consuming his working hours filing
and attending to personal cases, using
office
supplies,
equipment
and
utilities. The OCA conducted a spot
investigation aided by NBI agents. The
team was able to access Atty. Morales
personal
computer
and
print
two

documents stored in its hard drive, which


turned out to be two pleadings, one filed
in the CA and another in the RTC of Manila,
both in the name of another lawyer. Atty.
Morales computer was seized and taken in
custody of the OCA but was later ordered
released on his motion, but with order to
the MISO to first retrieve the files stored
therein. The OCA disagreed with the report
of the Investigating Judge that there was
no evidence to support the charge against
Atty. Morales as no one from the OCC
personnel who were interviewed would
give a categorical and positive statement
affirming the charges against Atty.
Morales, along with other court personnel
also charged in the same case. The OCA
recommended that Atty. Morales should be
found guilty of gross misconduct. The
Court En Banc held that while Atty.
Morales may have fallen short of the
exacting standards required of every court
employee, the Court cannot use the
evidence
obtained
from
his personal computer against him for it
violated his constitutional right against
unreasonable searches and seizures. The
Court found no evidence to support the
claim of OCA that they were able to obtain
the subject pleadings with the consent of
Atty. Morales, as in fact the latter
immediately filed an administrative case
against the persons who conducted the
spot investigation, questioning the validity
of the investigation and specifically
invoking his constitutional right against

unreasonable search and seizure. And as


there is no other evidence, apart from the
pleadings, retrieved from the unduly
confiscated personal computer of Atty.
Morales, to hold him administratively
liable, the Court had no choice but to
dismiss the charges against him for
insufficiency of evidence.
The
above
case
is
to
be
distinguished from the case at bar
because, unlike the former which involved
a personal computer of a court employee,
the computer from which the personal
files of herein petitioner were retrieved is
a government-issued computer, hence
government property the use of which the
CSC has absolute right to regulate and
monitor. Such relationship of the petitioner
with the item seized (office computer) and
other relevant factors and circumstances
under
American
Fourth
Amendment
jurisprudence, notably the existence of
CSC MO 10, S. 2007 on Computer Use
Policy, failed to establish that petitioner
had a reasonable expectation of privacy in
the office computer assigned to him.

Having
determined
that
the
personal files copied from the office
computer of petitioner are admissible in
the administrative case against him, we
now proceed to the issue of whether the
CSC was correct in finding the petitioner
guilty of the charges and dismissing him
from the service.
Well-settled is the rule that the
findings of fact of quasi-judicial agencies,
like the CSC, are accorded not only
respect but even finality if such findings
are supported by substantial evidence.
Substantial evidence is such amount of
relevant evidence which a reasonable
mind might accept as adequate to support
a conclusion, even if other equally
reasonable minds might conceivably opine
otherwise.[55]
The CSC based its findings on
evidence consisting of a substantial
number of drafts of legal pleadings and
documents stored in his office computer,
as well as the sworn affidavits and
testimonies of the witnesses it presented
during the formal investigation. According
to the CSC, these documents were
confirmed to be similar or exactly the
same content-wise with those on the case
records of some cases pending either with
CSCRO
No.
IV, CSC-NCR or
the
Commission Proper. There were also
substantially similar copies of those

pleadings filed with the CA and duly


furnished
the
Commission. Further,
the CSC found the explanation given by
petitioner, to the effect that those files
retrieved from his computer hard drive
actually belonged to his lawyer friends
Estrellado and Solosa whom he allowed
the use of his computer for drafting their
pleadings in the cases they handle, as
implausible and doubtful under the
circumstances. We hold that the CSCs
factual finding regarding the authorship of
the subject pleadings and misuse of the
office computer is well-supported by the
evidence on record, thus:
It is also striking to
note that some of these
documents were in the
nature
of
pleadings
responding to the orders,
decisions or resolutions of
these offices or directly in
opposition to them such as
a petition for certiorari or a
motion for reconsideration
of CSC Resolution. This
indicates that the author
thereof
knowingly
and
willingly participated in the
promotion or advancement
of the interests of parties
contrary or antagonistic to
the Commission. Worse, the
appearance in one of the
retrieved documents the
phrase, Eric N. Estr[e]llado,
Epal kulang ang bayad
mo,lends plausibility to an
inference
that
the
preparation or drafting of
the legal pleadings was

pursued with less than a


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

Attorney Ponciano Solosa,


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

ends not in conformity with


the
interests
of
the
Commission. He
was,
in
effect, acting as a principal
by
indispensable
cooperationOr at the very
least,
he
should
be
responsible
for
serious
misconduct for repeatedly
allowing CSC resources, that
is, the computer and the
electricity, to be utilized for
purposes other than what
they
were
officially
intended.
Further,
the
Commission cannot lend
credence to the posturing of
the appellant that the line
appearing in one of the
documents, Eric
N.
Estrellado, Epal kulang ang
bayad mo, was a private
joke between the person
alluded to therein, Eric N.
Estrellado, and his counsel,
Atty.
Solosa,
and
not
indicative of anything more
sinister. The same is too
preposterous
to
be
believed.Why would such a
statement appear in a legal
pleading stored in the
computer assigned to the
respondent, unless he had
something to do with it?[56]

Petitioner assails the CA in not


ruling that the CSC should not have
entertained an anonymous complaint
since Section 8 of CSC Resolution No. 991936
(URACC)
requires
a
verified
complaint:
Rule II Disciplinary Cases
SEC.
8. Complaint. A
complaint against a civil
service official or employee
shall not be given due
course unless it is in writing
and subscribed and sworn
to
by
the
complainant. However, in
cases initiated by the
proper
disciplining
authority, the complaint
need not be under oath.
No anonymous complaint
shall
be
entertained
unless there is obvious
truth or merit to the
allegation
therein or
supported by documentary
or direct evidence, in which
case the person complained
of may be required to
comment.
xxxx

We need not belabor this point raised by


petitioner. The administrative complaint is
deemed to have been initiated by the CSC
itself when Chairperson David, after a spot
inspection and search of the files stored in
the hard drive of computers in the two

divisions adverted to in the anonymous


letter -- as part of the disciplining
authoritys own fact-finding investigation
and
information-gathering
-found
a prima facie case against the petitioner
who was then directed to file his
comment. As this Court held in Civil
Service
Commission
v.
Court
of
[57]
Appeals
-Under Sections
46
and 48 (1), Chapter 6,
Subtitle A, Book V of E.O.
No. 292 and Section 8, Rule
II of Uniform Rules on
Administrative Cases in the
Civil Service, a complaint
may be initiated against
a civil service officer or
employee
by
the
appropriate disciplining
authority, even without
being subscribed and
sworn to. Considering that
the CSC, as the disciplining
authority for Dumlao, filed
the complaint, jurisdiction
over Dumlao was validly
acquired.
(Emphasis
supplied.)

As to petitioners challenge on the validity


of CSC OM 10, S. 2002 (CUP), the same
deserves scant consideration. The alleged
infirmity due to the said memorandum
order having been issued solely by the
CSC Chair and not the Commission as a
collegial body, upon which the dissent of
Commissioner
Buenaflor
is
partly
anchored, was already explained by

Chairperson David in her Reply to the


Addendum to Commissioner Buenaflors
previous memo expressing his dissent to
the actions and disposition of the
Commission in this case. According to
Chairperson David, said memorandum
order was in fact exhaustively discussed,
provision by provision in the January 23,
2002 Commission Meeting, attended by
her and former Commissioners Erestain, Jr.
and Valmores. Hence, the Commission En
Banc at the time saw no need to issue a
Resolution for the purpose and further
because the CUP being for internal use of
the Commission, the practice had been to
issue a memorandum order.[58] Moreover,
being an administrative rule that is merely
internal in nature, or which regulates only
the personnel of the CSC and not the
public, the CUP need not be published
prior to its effectivity.[59]
In fine, no error or grave abuse of
discretion was committed by the CA in
affirming the CSCs ruling that petitioner is
guilty of grave misconduct, dishonesty,
conduct prejudicial to the best interest of
the service, and violation of R.A. No.
6713. The gravity of these offenses
justified the imposition on petitioner of the
ultimate penalty of dismissal with all its
accessory penalties, pursuant to existing
rules and regulations.

WHEREFORE, the petition for review on


certiorari is DENIED.
The Decision dated October 11, 2007 and
Resolution dated February 29, 2008 of the
Court of Appeals in CA-G.R. SP No. 98224
are AFFIRMED.
With costs against the petitioner.
SO ORDERED.

Panganiban, Benitez, Parlade, Africa &


Barinaga
Law
Offices
for
private
respondent.

GRIO-AQUINO, J.:
The issue in this special civil action
of certiorari and
prohibition
is
the
jurisdiction of respondent Judge of the
Regional Trial Court of Oriental Mindoro to
stop the provincial governor from placing
a municipal mayor under preventive
suspension pending the investigation of
administrative charges against the latter.
On April 11, 1991, one Ramir Garing of
Naujan, Oriental Mindoro, filed a sworn
letter-complaint with Secretary Luis Santos
of the Department of Interior and Local
Government
charging Mayor Nelson
Melgar of Naujan, Oriental Mindoro, with
grave misconduct, oppression, abuse of
authority, culpable violation of the
Constitution and conduct prejudicial to the
best interest of the public service. The
charge against Mayor Melgar reads:

G.R. No. 100874 February 13, 1992


GOVERNOR
BENJAMIN
I.
ESPIRITU, petitioner,
vs.
NELSON B. MELGAR and HON. JUDGE
MARCIANO T. VIROLA, respondents.
Luna, Sison & Manas for petitioner.

On or about 4:30 in the


afternoon of March 26,
1991, in the Municipality of
Naujan, Oriental Mindoro,
the aforementioned person,
Nelson Melgar, being the
Municipal Mayor of Naujan,
Oriental
Mindoro,
with
abuse of official function,
did then and there wilfully,
unlawfully and feloniously

attack, assault and use


personal violence upon the
person of Ramir Garing, by
then and there boxing and
kicking thereby inflicting
upon the latter physical
injuries on different parts of
his body and not being
contented ordered his arrest
and
detention
in
the
municipal jail of Naujan,
Oriental Mindoro without
filing any charges until he
was released the following
day March 27, 1991 at
about 8:30 in the morning.
(p. 30, Rollo.)
An identical letter-complaint was filed by
Garing with the Provincial Governor of
Oriental
Mindoro
(herein
petitioner
Governor Benjamin I. Espiritu) accusing
Mayor Melgar of the same violations of law
and requesting that the mayor be placed
under preventive suspension pending
investigation of the charges.
A third complaint filed by Garing with the
Presidential Action Center, Office of the
President of the Philippines, was forwarded
to Governor Espiritu with a request for
prompt action (Annex "C", p. 36, Rollo).
On April 22, 1991, the Sangguniang
Panlalawigan of Oriental Mindoro required
Mayor Melgar to answer the complaint,
which was docketed as Adm. Case No. 9101 (Annex "D", p. 37, Rollo).

On May 22, 1991, Mayor Melgar submitted


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

not hurt him as can be


gathered from his medical
certificate (Annex "B" to the
complaint) which palpably
contradicts
his
affidavit
(Annex
"A"
to
the
complaint).
I was informed that said
Ramir
Garing
was
momentarily
placed
in
custody
for
his
own
protection because he was
drunk.
An
open
knife
(balisong) was taken from
him. I was likewise informed
that after he had sobered
up, he was told to go home,
but he refused to go and
only did so the following
morning.
Certainly
under
the
circumstances,
charges
could
have
been
filed
against Ramir Garing under
the provisions of Article 153
of the Revised Penal Code
and also for possession and
concealment of a deadly
weapon. Still, as a local
Chief Executive, who to
most people represent (sic)
a sovereign government,
and who, at the cost of
foregoing
personal
vindication must avoid any
appearance
of
vindictiveness, I instructed

my policemen not to file


charges against him.
Attached hereto for your
further reference are the
joint affidavit of teachers of
the J.L. Basa Memorial
School as Annex "A", the
joint
affidavit
of
the
Municipal Jailer and the
Police Investigator as Annex
"B", the affidavit of Fireman
1st Class Roy Lomio as
Annex "C", and a xerox copy
of the pages in the Police
Blotter where the incident in
question was entered. (pp.
40-41, Rollo).
After evaluating the complaint and its
supporting documents, as well as the
Mayor's answer and the affidavits of his
witnesses, the Sangguniang Panlalawigan
of Oriental Mindoro passed Resolution No.
55 on May 9, 1991, recommending to the
Provincial Governor that respondent Mayor
be preventively suspended for forty-five
(45) days pending the investigation of the
administrative complaint (Annex "H, p.
49, Rollo).
On May 23, 1991, Mayor Melgar filed a
motion to dismiss the administrative
complaint (Annex "I", pp. 51-55,Rollo). It
was opposed by Garing.
On June 6, 1991, the Sangguniang
Panlalawigan denied the motion to dismiss
(Res. No. 72, p. 62 Rollo; Annex "L" to the
Petition).

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

The Court is more inclined


to believe the answer under
oath of the respondent and
the sworn statements of his
witnesses attached to the
Answer
in
the
administrative case than the
complaint under oath in the
administrative case which
are the evidence to be
considered in determining
whether or not the order of
preventive suspension was
issued in accordance with
law. There is no reason to
doubt the sworn statements
of the numerous public
school
teachers
and
members
of
the
PNP.
Besides,
the
medical
certificate
issued
in
connection
with
the
treatment
of
the
complainant
in
the
administrative case tends to
corroborate the theory of
the
respondent
and
contradict
that
of
the
complaint
in
the
administrative case. The
abrasions on the right arm
of the complainant in the
administrative case tend to
show that said complainant
was held tightly by the
hands by the PNP because
he was then drunk, in
possession
of
a balisong knife and causing
serious disturbance and not

because he was boxed and


kicked by herein petitioner.
(pp. 75-76, Rollo.)

administrative case against


the
elective
municipal
official:

Governor Espiritu filed a motion to dismiss


and/or for reconsideration which Judge
Virola denied on July 16, 1991. Hence, this
petition for certiorari and prohibition.

b) Petitioner did not commit


a grave abuse of discretion
in placing respondent mayor
under
preventive
suspension; if at all, his
error was an error of
judgment which is not
correctible bycertiorari;

Without giving due course to the petition,


we required the private respondent to
comment and we issued a Temporary
Restraining
Order
commanding
respondent Judge to cease and desist from
further proceeding in Special Civil Action
No. R-5003 (pp. 106-107, Rollo). On
August 22, 1991, Mayor Melgar filed an
"Urgent
Motion
to
Lift
Temporary
Restraining Order" which the petitioner
opposed and the Court denied (p. 127155, Rollo).
Petitioner submits that respondent Judge
Virola acted without jurisdiction or with
grave abuse of discretion in issuing: (1)
the
writ
of
preliminary
injunction
restraining
Governor
Espiritu
from
implementing the order of preventive
suspension, and (2) in denying petitioner's
motion to dismiss Special Civil Action No.
R-5003, for:
a Petitioner, as Provincial
Governor, is empowered by
Section 63 of the Local
Government Code to place
an elective municipal official
under
preventive
suspension
pending
decision
of
an

c) By express provision of
Section 61 of the Local
Government
Code,
the
Sangguniang Panlalawigan
has
jurisdiction
over
complaints
against
any
elective municipal official;
on the other hand, Section
19(c)
of
the
Judiciary
Reorganization Act of 1980
withdraws from regional
trial courts jurisdiction over
cases within the exclusive
jurisdiction of any person,
tribunal or body exercising
judicial
or
quasi-judicial
functions.
Thus,
by
practically
deciding
the
administrative case on the
merits, the respondent court
acted without jurisdiction;
and
d) Respondent Mayor had a
remedy of appeal under
Section 66 of the Local
Government Code.

Section 63, Chapter IV of


Government Code provides:

the

Local

Sec.
63.
Preventive
Suspension.

(1)
Preventive suspension may
be imposed by the Minister
of Local Government if the
respondent is a provincial or
city
official,
by
the
provincial governor if the
respondent is an elective
municipal official, or by the
city or municipal mayor if
the
respondent
is
an
elective barangay official.
(2) Preventive suspension
may be imposed at anytime
after the issues are joined,
when there is reasonable
ground to believe that the
respondent has committed
the act or acts complained
of, when the evidence of
culpability is strong, when
the gravity of the offense so
warrants, or when the
continuance in office of the
respondent could influence
the witnesses or pose a
threat to the safety and
integrity of the records and
other evidence. In all cases,
preventive suspension shall
not extend beyond sixty
days after the start of said
suspension.

(3) At the expiration of


sixty-days, the suspended
official shall be deemed
reinstated in office without
prejudice
to
the
continuation
of
the
proceedings against him
until
its
termination.
However, if the delay in the
proceedings of the case is
due to his fault, neglect or
request, the time of the
delay shall not be counted
in computing the time of the
suspension.
Clearly, the provincial governor of Oriental
Mindoro is authorized by
law
to
preventively suspend the municipal mayor
of Naujan at anytime after the issues had
been joined and any of the following
grounds were shown to exist:
1. When there is reasonable ground to
believe
that
the
respondent
has
committed the act or acts complained of;
2. When the evidence of culpability is
strong;
3. When the gravity of the offense so
warrants; or
4. When the continuance in office of the
respondent could influence the witnesses
or pose a threat to the safety and integrity
of the records and other evidence.
There is nothing improper in suspending
an officer before the charges against him

are heard and before he is given an


opportunity to prove his innocence (Nera
vs. Garcia and Elicao, 106 Phil. 1031).
Preventive suspension is allowed so that
the respondent may not hamper the
normal course of the investigation through
the use of his influence and authority over
possible witnesses (Lacson vs. Roque, 92
Phil. 456).
Since respondent mayor believed that his
preventive suspension was unjustified and
politically motivated, he should have
sought relief first from the Secretary of
Interior and Local Government, not from
the courts. Mayor Melgar's direct recourse
to
the
courts
without
exhausting
administrative remedies was premature
(Aboitiz & Co. Inc. vs. Collector of
Customs, 83 SCRA 265; Garcia vs.
Teehankee, 27 SCRA 937; Manuel vs.
Jimenez, 17 SCRA 55; Bongcawil vs.
Provincial Board of Lanao del Norte, 10
SCRA 327; The Phil Veterans Affairs Office
vs. Farias, et al., AC-G.R. SP No. 05937,
July 5, 1985; Bonafe vs. Zurbano, 131
SCRA 9). The regional trial court had no
jurisdiction over Special Civil Action No. R5003 and gravely abused its discretion in
refusing to dismiss the case.
There may exist honest differences of
opinion with regard to the seriousness of
the charges, or as to whether they warrant
disciplinary action. However, as a general
rule, the office or body that is invested
with the power of removal or suspension
should be the sole judge of the necessity
and sufficiency of the cause ( 17 R.C.L.
Sec. 233 cited in Attorney General vs.

Doherty, 13 Am. Rep. 132). So, unless a


flagrant abuse of the exercise of that
power is shown, public policy and a
becoming regard for the principle of
separation of powers demand that the
action of said officer or body should be left
undisturbed.
However, in this particular case, since the
60-day preventive suspension of Mayor
Melgar was maintained by the Temporary
Restraining Order which we issued on
August 6, 1991, and therefore has already
been served, he is deemed reinstated in
office
without
prejudice
to
the
continuation
of
the
administrative
investigation of the charges against him
(Sec. 63, subpar. 3, Local Government
Code).
WHEREFORE,
the
petition
for certiorari and prohibition is granted.
The writ of preliminary injunction dated
June 24, 1991 in Special Civil Action No. R5003 is hereby annulled and set aside.
Said Special Civil Action No. R-5003 is
dismissed.
SO ORDERED.

as Presiding Judge of the Regional


Trial Court - Cebu City, Branch
8, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari and mandamus
under Rule 65 of the Rules of Court seeks
the annulment of the Joint Order1 dated
April 1, 2005 of the Office of the
Ombudsman (OMB) in the Visayas. The
OMB had denied reconsideration of its
Reinvestigation Report2 in OMB-V-C-020240-E and its Resolution in OMB-C-C-030729-L, both dated January 10, 2005.
Petitioner herein
also assails
both
issuances of the OMB.
The factual antecedents of this case are as
follows.

G.R. Nos. 168578-79


30, 2008

September

NIETO
A.
RACHO, Petitioner,
vs.
HON. PRIMO C. MIRO, in his capacity
as Deputy Ombudsman for the
Visayas, HON. VIRGINIA PALANCASANTIAGO,
in
her
capacity
as
Ombudsman
Director,
and
HON.
ANTONIO T. ECHAVEZ, in his capacity

On November 9, 2001, DYHP Balita Action


Team (DYHP) of the Radio Mindanao
Network, Inc. addressed a letter 3 on behalf
of an anonymous complainant to Deputy
Ombudsman for the Visayas Primo C. Miro.
The letter accused Nieto A. Racho, an
employee of the Bureau of Internal
Revenue
(BIR)-Cebu,
of
having
accumulated wealth disproportionate to
his
income.
Photocopied
bank
certifications disclosed that Racho had a
total deposit of P5,793,881.39 with three
banks.
Pio R. Dargantes, the Graft Investigation
Officer I (GIO) assigned to investigate the
complaint, directed DYHP to submit a
sworn statement of its witnesses. Instead,
the latter filed a Manifestation4dated
October
16,
2002
withdrawing
its
complaint
for
lack
of
witnesses.
Consequently, GIO Dargantes dismissed

the case. He ruled that the photocopied


bank certifications did not constitute
substantial
evidence
required
in
administrative proceedings.5
Then, in two separate Memoranda dated
May 30, 2003,6 Ombudsman Director
Virginia Palanca-Santiago disapproved GIO
Dargantess Resolution. In OMB-V-A-020214-E, Director Palanca-Santiago held
Racho
administratively
liable
for
falsification and dishonesty, and meted on
him the penalty of dismissal from service
with forfeiture of all benefits and perpetual
disqualification to hold office.7 In OMB-V-C02-0240-E,
Director
Palanca-Santiago
found probable cause to charge Racho
with falsification of public document under
Article 171(4)8 of the Revised Penal
Code.9 The
latter
moved
for
reconsideration but it was denied by the
Deputy Ombudsman.

Connections;
and
Identification
of
Relatives In The Government Service, as of
December 31, 1999, by stating therein
that his cash in bank is only FIFTEEN
THOUSAND
PESOS
(P15,000.00),
Philippine Currency and that his assets
minus his liabilities amounted only to TWO
HUNDRED THREE THOUSAND SEVEN
HUNDRED
FIFTY
EIGHT
PESOS
(P203,758.00), Philippine Currency, when
in truth and in fact, said accused has
BANK DEPOSITS or cash in banks
amounting to FIVE MILLION SEVEN
HUNDRED NINETY THREE THOUSAND
EIGHT HUNDRED ONE PESOS and 39/100
(P5,793,801.39),10 Philippine Currency, as
herein shown:
1) Metropolitan Bank and Trust
Company Cebu, Tabunok Branch:
Unisa No.

Amount

On May 30, 2003, Racho was charged with


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

3-172-941-10

P1,983,554.45

3-172-941-11

949,341.82

Total -

P2,932,896.27

That on or about the 7th day of February,


2000, and for sometime subsequent
thereto, at Cebu City, Philippines, and
within the jurisdiction of this Honorable
Court, above-named accused NIETO A.
RACHO, a public officer, being the Chief,
Special Investigation Division, Bureau of
Internal Revenue (BIR), Regional Office No.
13, Cebu City, in such capacity and
committing the offense in relation to [his]
office, with deliberate intent, with intent to
falsify, did then and there willfully,
unlawfully and feloniously falsify a public
document, consisting of his Statement of
Assets, Liabilities and Networth, Disclosure
of
Business
Interest
and
Financial

2)
Philippine
Commercial
International Bank Magallanes
Branch, Cebu City:
Account No.

Amount

Equalizer 29449-29456

P1,000,000.0
0

PCC Fund 99-0095-0200,000.00


0020-clf.b
Optimum Savings 0028,702.53
8953-06860-9
Total -

P1,228,702.5
3

3) Bank of the Philippine Islands Cebu


(Mango)
Branch,
Gen.
Maxilom Avenue, Cebu City:
Account No.
Gold Savings
2036-49

Amount

1023- P1,632,282.5
9

thus deliberately failed to disclose an


important fact of which he has the legal
obligation to do so as specifically
mandated under Section 8 of Republic Act
No. 6713 (The Norms of Conduct and
Ethical Standards for Public Officials and
Employees) and Section 7 of Republic Act
No. 3019, As Amended (The Anti-Graft and
Corrupt Practices Act), thereby making
untruthful statement in a narration of
facts.
CONTRARY TO LAW.11
Racho appealed the administrative case
and filed a petition for certiorari under
Rule 65 with the Court of Appeals to
question the ruling in OMB-V-C-02-0240-E.
In a Decision12 dated January 26, 2004, the
appellate court annulled both Memoranda
and ordered a reinvestigation of the cases
against petitioner. Thereafter, petitioner
filed a Motion to Dismiss 13 dated July 21,
2004. The same was denied for lack of
merit in an Order14 dated August 24, 2004.
On reinvestigation, petitioner submitted a
Comment15 dated January 4, 2005 along
with supporting documents. On January
10, 2005, the OMB issued the assailed
Reinvestigation Report, the dispositive
portion of which states:
With all the foregoing, undersigned finds
no basis to change, modify nor reverse her

previous findings that there is probable


cause for the crime of FALSIFICATION OF
PUBLIC DOCUMENT, defined and penalized
under Article 171 of the Revised Penal
Code, against respondent Nieto A. Racho
for making untruthful statements in a
narration of facts in his SALN. As there are
additional facts established during the
reinvestigation, re: failure of Mr. Racho to
reflect his business connections, then the
Information filed against him should be
amended to include the same. Let this
Amended Information be returned to the
court for further proceedings.

WHETHER OR NOT RESPONDENT


OMBUDSMAN DIRECTOR, AS WELL
AS
RESPONDENT
DEPUTY
OMBUDSMAN FOR THE VISAYAS
WHO SANCTIONED HER DEED,
COMMITTED GRAVE ABUSE OF
DISCRETION EQUIVALENT TO LACK
OR IN EXCESS OF JURISDICTION
WHEN SHE REFUSED OR FAILED TO
INHIBIT
HERSELF
FROM
CONDUCTING
THE
SUPPOSED
"REINVESTIGATION";

SO RESOLVED.16

WHETHER
OR
NOT
HEREIN
PETITION[ER] WAS DENIED DUE
PROCESS
OF
LAW
IN
THE
SUPPOSED "REINVESTIGATION";

Petitioner sought reconsideration but was


denied by the OMB in the Joint Order
dated April 1, 2005. It decreed:
The
Motion for Reconsideration of
respondent did not adduce any new
evidence, which would warrant a reversal
of our findings; neither did it present proof
of errors of law or irregularities being
committed.
This
being
so,
this
Motion
for
Reconsideration of respondent is hereby
DENIED. The findings of this Office as
contained in the two (2) REINVESTIGATION
REPORTS (in OMB-V-C-02-0240-E and OMBV-A-02-0214-E) and RESOLUTION (in OMBC-C-03-0729-L) stand.
SO ORDERED.17
In the instant petition, Racho cites the
following issues:
I.

II.

III.
WHETHER OR NOT RESPONDENT
OMBUDSMAN DIRECTOR, AS WELL
AS
RESPONDENT
DEPUTY
OMBUDSMAN FOR THE VISAYAS
WHO SANCTIONED HER DEED,
COMMITTED GRAVE ABUSE OF
DISCRETION EQUIVALENT TO LACK
OR IN EXCESS OF JURISDICTION
WHEN
SHE
HELD
THAT
PETITIONERS
MOTION
FOR
RECONSIDERATION
DID
NOT
ADDUCE
PROOF
OF
ANY
IRREGULARITY
IN
THE
"REINVESTIGATION"; AND
IV.
WHETHER OR NOT BY REASON OF
THIS
HONORABLE
COURTS
INHERENT POWER TO DO ALL
THINGS REASONABLY NECESSARY
FOR THE ADMINISTRATION OF
JUSTICE, EVEN IF NOT PRAYED FOR

IN THE INSTANT PETITION, THE


SUBJECT OMBUDSMAN CASES OMBV-C-02-0240-E AND OMB-C-C-030729-L CAN BE DISMISSED.18
Stated simply, the issues now for
determination are as follows: (1) Whether
Ombudsman Director Palanca-Santiago
gravely abused her discretion when she
did
not
inhibit
herself
in
the
reinvestigation; (2) Whether petitioner
was denied due process of law on
reinvestigation; and (3) Whether there was
probable cause to hold petitioner liable for
falsification under Article 171(4) of the
Revised Penal Code.
Petitioner ascribes grave abuse of
discretion on the part of Ombudsman
Director Palanca-Santiago since she did
not inhibit herself in the reinvestigation.
He claims a denial of due process because
of the fact that Director Palanca-Santiago
handled the preliminary investigation as
well as the reinvestigation of the cases. In
both instances, the latter found probable
cause to indict petitioner for falsification.
For this reason, petitioner believes that
Director Palanca-Santiago has turned
hostile to him. He insists that respondent
director had lost the cold neutrality of an
impartial judge when she found probable
cause
against
him
on
preliminary
investigation.
Petitioner
penultimately
questions the haste with which the
reinvestigation was concluded and the
lack of hearing thereon. In essence, he
insists on the dismissal of his cases before
the OMB.
On November 6, 2006, the OMB thru the
Office of the Special Prosecutor (OSP) filed
a Memorandum19 dated October 23, 2006
for respondents. The OSP avers that the
instant petition stated no cause of action

since it did not implead the Hon.


Ombudsman Simeon Marcelo as a
respondent.
That
Director
PalancaSantiago
resolved
the
investigation
adverse to petitioner, the OSP contends,
did not necessarily indicate partiality. The
OSP explains that the Reinvestigation
Report was merely recommendatory and
the finding of probable cause was done in
line with official duty. It points out further
that petitioner failed to cite specific acts
by
which
Director
Palanca-Santiago
showed hostility towards him. Finally, the
OSP charges petitioner with forum
shopping since he had already raised the
issue of respondent directors impartiality
in his petition assailing the Memorandum
dated May 30, 2003, before the Court of
Appeals.
After considering the contentions and
submissions of the parties, we are in
agreement that the instant petition lacks
merit.
The prosecution of offenses committed by
public officers is vested primarily in the
OMB. For this purpose, the OMB has been
given a wide latitude of investigatory and
prosecutory powers under the Constitution
and
Republic
Act
No.
677020 (The
Ombudsman Act of 1989). Its discretion is
freed from legislative, executive or judicial
intervention to ensure that the OMB is
insulated from any outside pressure and
improper influence.21 Hence, unless there
are good and compelling reasons to do so,
the Court will refrain from interfering with
the exercise of the Ombudsmans powers,
and will respect the initiative and
independence inherent in the latter who,
beholden to no one, acts as the champion
of the people and the guardian of the
integrity of the public service.22

The Ombudsman is empowered to


determine
whether
there
exists
reasonable grounds to believe that a crime
has been committed and that the accused
is probably guilty thereof and, thereafter,
to file the corresponding information with
the appropriate courts.23 Such finding of
probable cause is a finding of fact which is
generally
not
reviewable
by
this
Court.24 The only ground upon which a
plea for review of the OMBs resolution
may be entertained is an alleged grave
abuse of discretion. By that phrase is
meant the capricious and whimsical
exercise of judgment equivalent to an
excess or lack of jurisdiction. The abuse of
discretion must be so patent and so gross
as to amount to an evasion of a positive
duty; or to a virtual refusal to perform a
duty enjoined by law; or to act at all in
contemplation of law, as when the power
is exercised in an arbitrary and despotic
manner by reason of passion or hostility.25
Considering the facts and circumstances
of this case, we find no grave abuse of
discretion on the part of respondents. As
already well-stated, as long as substantial
evidence supports the Ombudsmans
ruling,
his
decision
will
not
be
overturned.26 Here, the finding of the
Ombudsman that there was probable
cause to hold petitioner liable for
falsification
by
making
untruthful
statements in a narration of facts rests on
substantial evidence.
The OMB evaluated petitioners Statement
of Assets, Liabilities and Networth (SALN)
for the year 199927 against certified true
copies of his bank deposits during the
same year. In his SALN, petitioner
declared P15,000 cash in bank as of
December
31,
1999.
The
bank
certifications of petitioners deposits,

however, confirmed that he had an


aggregate balance of P5,793,881.39 in his
accounts with three banks. Original
certifications dated June 17, 1999 issued
by the Bank of the Philippine Islands
(BPI)28 and Equitable PCI Bank (Equitable
PCIB)29 revealed
accounts
for P1,632,282.59
andP1,228,702.53,
respectively. A photocopied certification
dated
June
16,
1999
from
Metrobank30indicated
a
deposit
of P2,932,896.27.
The OMB did not accord weight to the Joint
Affidavit31 submitted by petitioner. In said
Affidavit,
Vieto
and
Dean
Racho,
petitioners brothers, stated that they
entrusted
to
petitioner P1,390,000
andP1,950,000 respectively. On the other
hand, petitioners nephew, Henry Racho,
claimed that he delivered the amount
of P1,400,000 to petitioner. These sums
were purportedly their contribution as
stockholders of Angelsons Lending and
Investors, Inc. (Angelsons) and Nal Pay
Phone Services (NPPS) - businesses
managed by the spouses Racho. Ironically,
Dean Racho was not listed as a
stockholder of the lending company.
Moreover, the Articles of Incorporation32 of
Angelsons reflected that Vieto, Henry and
the spouses Racho individually paid
only P12,500 of the subscribed shares
ofP50,000 each. Petitioner did not present
proofs of succeeding contributions made
and their amounts. Curiously, affiants
allegedly
tendered
their
additional
contributions
during
family
reunions.33 Neither
did
the
affiants
describe the extent of their interest in
NPPS. Petitioner merely presented NPPS
Certificate of Registration of Business
Name34 secured by his wife Lourdes B.
Racho. Yet, said certificate did not operate
as a license to engage in any kind of
business, much more a proof of its

establishment
and
operation.
Even
assuming that said businesses exist,
petitioner should have similarly reported
his interests therein in his SALN.
Petitioner argues that his culpability
should not be ascertained on the basis of
photocopied bank certifications. Apparent
from the records, however, is the
Order35 dated August 27, 2004 of the OMB
which required petitioner to comment on
the certified true copies of bank
certifications issued by BPI and Equitable
PCIB. All the same, even if we exclude his
deposit in Metrobank, a significant
disparity between his declared cash on
hand of P15,000 and cash in bank
of P2,860,985.12 subsists when compared
to his total bank deposits duly certified for
the same year.
Indeed, the determination of probable
cause need not be based on clear and
convincing evidence of guilt, neither on
evidence establishing absolute certainty of
guilt.36 It is enough that it is believed that
the act or omission complained of
constitutes the offense charged. The trial
of a case is conducted precisely for the
reception of evidence of the prosecution in
support of the charge.37 A finding of
probable cause merely binds the suspect
to stand trial. It is not a pronouncement of
guilt.38
Moreover, we are unable to agree with
petitioners contention that he was denied
due process when no hearing was
conducted
on
his
motion
for
reinvestigation. In De Ocampo v. Secretary
of Justice,39we ruled that a clarificatory
hearing is not required during preliminary
investigation.
Rather
than
being
mandatory, a clarificatory hearing is
optional on the part of the investigating

officer as evidenced by the use of the


term "may" in Section 3(e) of Rule 112,
thus:
(e) If the investigating officer believes that
there are matters to be clarified, he may
set a hearing to propound clarificatory
questions to the parties or their witnesses,
during which the parties shall be afforded
an opportunity to be present but without
the right to examine or cross-examine.40
This rule applies equally to a motion for
reinvestigation. As stated, the Office of the
Ombudsman has been granted virtually
plenary investigatory powers by the
Constitution and by law. As a rule, the
Office of the Ombudsman may, for every
particular
investigation,
whether
instigated by a complaint or on its own
initiative, decide how best to pursue such
investigation.41 In the present case, the
OMB found it unnecessary to hold
additional clarificatory hearings. Notably,
we note that a hearing was conducted
during preliminary investigation where
petitioner invoked his right to remain
silent and confront witnesses who may be
presented against him, although there was
none presented.
Besides, under the Rules of Procedure of
the
Office
of
the
Ombudsman
(Administrative Order No. 07), particularly
Rule II, Section 7(a),42 in relation to Section
4(f),43 a complainants active participation
is no longer a matter of right during
reinvestigation. Admittedly, technical rules
of procedure and evidence are not strictly
applied in administrative proceedings.
Thus, it is settled that administrative due
process cannot be fully equated with due
process in its strict judicial sense.44

Petitioner complains of how quickly the


reinvestigation
proceedings
were
terminated.
The
OMB
issued
the
Reinvestigation Report on January 10,
2005, barely a week after petitioner filed
his Comment dated January 4, 2005. Thus,
the latter surmises that no reinvestigation
was actually made. However, a review of
the facts would reveal that after the Court
of Appeals directed a reinvestigation of
the case, the OMB issued an Order dated
August 27, 2004 requiring petitioner to
submit a comment within 10 days from
receipt. The latter failed to comply. On
December 1, 2004, petitioner filed a
Motion for Extension of Time to File
Comment45 of 30 days; the OMB granted
the same for 15 days. On December 17,
2004, petitioner asked for another
extension of 30 days reckoned from
December 19, 2004 within which to
submit a comment; the OMB gave him up
to December 28, 2004. On December 28,
2004, petitioner moved for a third
extension. Then, without waiting for the
OMBs resolution of his latest motion,
petitioner filed his Comment on January 4,
2005. But with his repeated motions for
extensions, he already contributed to
palpable delay in the completion of the
reinvestigation.
Clearly, the requirements of due process
have been substantially satisfied in the
instant
case.46 In
its
Order47 dated
December 22, 2004, the OMB warned
petitioner that no further extension will be
given such that if he fails to file a
comment on December 28, 2004, the
cases against him will be submitted for
resolution. Even so, the OMB considered
petitioners belatedly-filed Comment and
the documents attached therewith in its
Reinvestigation Report. In our view,
petitioner cannot successfully invoke
deprivation of due process in this case,

where as a party he was given the chance


to be heard, with ample opportunity to
present his side.48
Equally clear to us, there was no manifest
abuse of discretion on the part of Director
Palanca-Santiago for her refusal to inhibit
herself in the reinvestigation. Even if a
preliminary investigation resembles a
realistic judicial appraisal of the merits of
the case,49 public prosecutors could not
decide whether there is evidence beyond
reasonable doubt of the guilt of the person
charged.50 They are not considered judges,
by the nature of their functions, but
merely
quasi-judicial
officers.51 Worthstressing, one adverse ruling by itself
would not prove bias and prejudice
against a party sufficient to disqualify
even a judge.52 Hence, absent proven
allegations of specific conduct showing
prejudice and hostility, we cannot impute
grave abuse of discretion here on
respondent director. To ask prosecutors to
recuse themselves on reinvestigation upon
every unfavorable ruling in a case would
cause
unwarranted
delays
in
the
prosecution of actions.
Finally, we note that petitioner failed to
attach a certified true copy of the assailed
Resolution
in
OMB-C-C-03-0729-L
in
disregard of paragraph 253 of Section 1,
Rule 65 on certiorari. As previously ruled,
the requirement of providing appellate
courts with certified true copies of the
judgments or final orders that are the
subjects of review is indispensable to aid
them in resolving whether or not to give
due course to petitions. This necessary
requirement cannot be perfunctorily
ignored, much less violated.54In view,
however, of the serious matters dealt with
in this case, we opted to tackle the

substantial merits hereof with least regard


to technicalities.
WHEREFORE, the instant petition is
DISMISSED for lack of merit. The Regional
Trial Court of Cebu City, Branch 8 is hereby
ORDERED to proceed with the trial of
Criminal Case No. CBU-66458 against
petitioner.
Costs against petitioner.
SO ORDERED.

Eulogio B. Alzaga for petitioner.

decision acquitting
offense charged.

petitioner

of

the

The Solicitor General for respondents.

BELLOSILLO, J.:
Petitioner comes to us on a petition for
review on certiorari of the decision of 23
July 1985 of respondent Commission on
Audit (COA) denying his claim for payment
of back wages, after he was reinstated to
the service pursuant to an executive
clemency. He prays for the extraordinary
remedy
of mandamus against
public
respondents to enforce his claim.

G.R. No. 75025 September 14, 1993


VICENTE
GARCIA, petitioner,
vs.
THE
HONORABLE
CHAIRMAN,
COMMISSION
ON
AUDIT,
THE
HONORABLE
MINISTER,
LAND
TRANSPORTATION
AND
COMMUNICATIONS, THE REGIONAL
DIRECTOR,
TELECOM
REGIONAL
OFFICE NO. IV, respondents.

Petitioner was a Supervising Lineman in


the Region IV Station of the Bureau of
Telecommunications in Lucena City. On 1
April 1975, petitioner was summarily
dismissed from the service on the ground
of dishonesty in accordance with the
decision of the then Ministry of Public
Works,
Transportation
and
Communications in Adm. Case No. 975 for
the loss of several telegraph poles which
were located at the Sariaya-Lucena City
and Mauban-Sampaloc, Quezon, telecom
lines. Petitioner did not appeal from the
decision.
Based on the same facts obtaining in the
administrative action, a criminal case for
qualified theft was filed against petitioner
with the then Court of First Instance (now
Regional Trial Court) of Quezon. On 23
January 1980, the trial court rendered its

Consequently,
petitioner
sought
reinstatement to his former position
in view of his acquittal in the criminal
case. In an indorsement dated 7 April
1980, petitioner's request to be reinstated
was
denied
by
the
Bureau
of
Telecommunications. Hence, petitioner
pleaded to the President of the Philippines
for executive clemency.
On 26 August 1981, acting on the
favorable indorsements of the then
Ministry
of
Transportation
and
Communications and the Civil Service
Commission,
Deputy
Presidential
Executive Assistant Joaquin T. Venus, Jr.,
by authority of the President, per
Resolution
No.
O.P.
1800,
granted
executive clemency to petitioner.
Petitioner thereafter filed with respondent
COA a claim for payment of back salaries
effective 1 April 1975, the date of his
dismissal from the service. This was
denied by the COA in its 5th Indorsement
dated 12 October 1982 on the ground that
the executive clemency granted to him did
not provide for the payment of back
salaries and that he has not been
reinstated in the service.
It appears that petitioner was recalled to
the service on 12 March 1984 but the
records do not show whether petitioner's
reinstatement was to the same position of
Supervising Lineman. 1

Petitioner again filed a claim to recover his


back salaries for the period from 1 April
1975, the date of his dismissal, to 12
March 1984, when he was reinstated. In
Decision No. 362 embodied in its 3rd
Indorsement
dated
23
July
1985,
respondent COA denied the claim stating
that the executive clemency was silent on
the payment of back wages and that he
had not rendered service during the period
of his claim.
Aggrieved, petitioner appealed the COA
decision of 23 July 1985 to the Office of
the President. On 21 April 1986, Deputy
Executive Secretary Fulgencio S. Factoran,
Jr., by authority of the President, denied
the appeal "due to legal and constitutional
constraint," 2 holding that this Court is the
proper forum to take cognizance of the
appeal oncertiorari from the decision of
the COA, citing Art. XII-(D), Sec. 2, par. 2,
of the 1973 Constitution (now Art. IX-[A],
Sec. 7, of the 1987 Constitution).
Hence, petitioner filed the instant petition
on the issue of whether he is entitled to
the payment of back wages after having
been reinstated pursuant to the grant of
executive clemency.
In his comment to the petition, the
Solicitor General recommends that the
petition be given due course and the
petitioner be awarded back wages to be
determined in the light of existing laws
and jurisprudence. The Solicitor General
submits that the award is implicit in the
grant of executive clemency, the ultimate

objective of which is to accord full justice


to petitioner.
On the other hand, the COA asks this
Court to deny the petition for the following
reasons: (a) petitioner's acquittal in the
criminal case did not necessarily free him
from administrative liability; (b) petitioners
unexplained failure to appeal the decision
in the administrative case was tantamount
to a waiver or renunciation of his right to
back wages; (c) the executive clemency
was granted to petitioner for the purpose
of reinstatement only since it was silent on
the matter of back wages; (d) the award of
back wages is allowed only if the
respondent is exonerated from the
administrative charge that his suspension
or dismissal is declared illegal or
unjustified by the court; and, (e) petitioner
did not render any service during the
period before his reinstatement, hence, he
is not entitled to back wages based on the
"no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and
has therefore provided for, the pardoning
power to be exercised as an act of grace
and humanity, in proper cases. Without
such a power of clemency, to be exercised
by some department or functionary of a
government, a country would be most
imperfect and deficient in its political
morality and in that attribute of Deity
whose judgments are always tempered
with money. 3

Our Constitution reposes in the President


the power and the exclusive prerogative to
extend executive clemency under the
following circumstances:
Except
in
cases
of
impeachment
or
as
otherwise provided in this
Constitution, the President
may
grant
reprieves,
commutations, and pardons,
and
remit
fines
and
forfeitures, after conviction
by final judgment.
He shall also have the
power to grant amnesty
with the concurrence of a
majority of all the Members
of the Congress. 4
From among the different acts of
executive clemency spelled out above, the
clemency granted to petitioner in the
instant case partakes of the nature of an
executive pardon. A reading of Resolution
No. 1800 partly quoted hereunder is
enlightening:
In a 3rd Indorsement dated
September 5, 1980, the
Director
of
Telecommunications
interposed no objection to
the petition, while the
Minister of Transportation
and Communications, in his
4th
Indorsement
dated
November
17,
1980,
favorably recommended the

grant of executive clemency


to petitioner for the reason
that "while it is a rule that
an administrative case is
separate and distinct from a
criminal
case
and
an
acquittal in the latter case
dos not ipso facto result in
the exoneration in the
former
case,
yet
an
exception could arise if the
basis for the acquittal was
the
innocence
of
the
accused as in the case of
petitioner Garcia.
Asked
for
comment
pursuant to Section 43 of
Presidential Decree No. 807,
the Civil service Commission
recommends the grant of
executive
clemency
to
petitioner in view of the
findings of the court that
instead
of
coming
forward to the
defense
of
the accused
who actually
was
authorized to
uproot
or
recover
the
poles
in
question and
of
commending
the latter for

his high sense


of
responsibility
in preventing
losses to the
government,
said
high
officials
had
even
the
temerity
to
disown
and
deny
the
authority they
gave to the
accused
resulting
in
his separation
from
the
service
and
having him all
alone
in
defending
himself
against
the
accusation of
the
very
government
he tried to
protect.
After a careful study, this
Office is inclined to grant
executive
clemency
to
petitioner in the light of this
decision
of
the
court
acquitting him of the crime
of qualified theft which was
based on the same acts
obtaining in Administrative
Case No. 975 against him,

coupled with the favorable


recommendation
of
the
Minister of Transportation
and Communications and
the
Civil
Service
Commission.
In view of the foregoing,
petitioner Vicente Garcia is
hereby granted executive
clemency. 5
Time and again this Court has unfolded
the effects of a pardon upon the individual
to whom it is granted. InMonsanto
v. Factoran, 6 we have firmly established
the general rule that while a pardon has
generally been regarded as blotting out
the existence of guilt so that in the eyes of
the law the offender is as innocent as
though he never committed the offense, it
does not operate for all purposes. The
very essence of a pardon is forgiveness or
remission of guilt and not forgetfulness . It
does not erase the fact of the commission
of the crime and the conviction thereof.
Pardon frees the individual from all the
penalties and legal disabilities and
restores to him all his civil rights. Unless
expressly grounded on the person's
innocence, it cannot bring back lost
reputation for honesty, integrity and fair
dealing. The pardoned offender regains his
eligibility for appointment to public office
which was forfeited by reason of the
conviction of the offense. But since pardon
does not generally result in automatic
reinstatement because the offender has to
apply for reappointment, he is not entitled
to back wages.

But, stated otherwise, if the pardon is


based on the innocence of the individual,
it affirms this innocence and makes him a
new man and as innocent; as if he had not
been found guilty of the offense
charged. 7 When a person is given pardon
because he did not truly commit the
offense, the pardon relieves the party from
all punitive consequences of his criminal
act, thereby restoring to him his clean
name, good reputation and unstained
character prior to the finding of guilt.
In the case at bar, petitioner was found
administratively liable for dishonesty and
consequently dismissed from the service.
However, he was later acquitted by the
trial court of the charge of qualified theft
based on the very same acts for which he
was dismissed. The acquittal of petitioner
by the trial court was founded not on lack
of proof beyond reasonable doubt but on
the fact that petitioner did not commit the
offense imputed to him. Aside from finding
him innocent of the charge, the trial court
commended petitioner for his concern and
dedication as a public servant. Verily,
petitioner's innocence is the primary
reason behind the grant of executive
clemency to him, bolstered by the
favorable
recommendations
for
his
reinstatement
by
the
Ministry
of
Transportation and Communications and
the Civil Service Commission.
The bestowal of executive clemency on
petitioner in effect completely obliterated
the adverse effects of the administrative
decision which found him guilty of
dishonesty and ordered his separation

from the service. This can be inferred from


the executive clemency itself exculpating
petitioner from the administrative charge
and thereby directing his reinstatement,
which is rendered automatic by the grant
of the pardon. This signifies that petitioner
need no longer apply to be reinstated to
his former employment; he is restored to
his office ipso facto upon the issuance of
the clemency.
Petitioner's automatic reinstatement to
the government service entitles him to
back wages. 8 This is meant to afford relief
to petitioner who is innocent from the start
and to make reparation for what he has
suffered as a result of his unjust dismissal
from the service. To rule otherwise would
defeat the very intention of the executive
clemency, i.e., to give justice to petitioner.
Moreover, the right to back wages is
afforded to those with have been illegally
dismissed
and
were
thus
ordered
reinstated or to those otherwise acquitted
of the charges against them. 9 There is no
doubt that petitioner's case falls within the
situations aforementioned to entitle him to
back wages.
Further, it is worthy to note that the
dismissal of petitioner was not the result
of any criminal conviction that carried with
it forfeiture of the right to hold public
office, but is the direct consequence of an
administrative decision of a branch of the
Executive Department over which the
President, as its head, has the power of
control. The President's control has been
defined to mean "the power of an officer
to alter or modify or nullify or set aside

what a subordinate officer had done in the


performance of his duties and to the
judgment of the former for the latter."10 In
pardoning petitioner and ordering his
reinstatement,
the
Chief
Executive
exercised his power of control and set
aside the decision of the Ministry of
Transportation and Communications. The
clemency nullified the dismissal of
petitioner
and
relieved
him
from
administrative liability. The separation of
the petitioner from the service being null
and void, he is thus entitled to back
wages.
After having been declared innocent of the
crime of qualified theft, which also served
as basis for the administrative charge,
petitioner should not be considered to
have left his office for all legal purposes,
so that he is entitled to all the rights and
privileges that accrued to him by virtue of
the office held, including back wages. 11
Established jurisprudence fixes recovery of
back wages to a period of five (5) years to
be paid an illegally dismissed government
employee
who
has
been
ordered
12
reinstated. The
cases
heretofore
decided by this Court show that
petitioners therein were employees of
local governments who were removed
from office by their local officials. The
reasons given for their removal were
abolition of office or position, reduction of
work force, or lack of funds on the part of
the local governments concerned, which
reasons were found by this Court to be
either devoid of factual basis or not
sufficiently
proven,
otherwise,
their

dismissal would have been valid and


justified. In contrast, the case before us is
different,
involving
as
it
does
circumstances that impel us to deviate
from the general rule previously laid down
on the recovery of back wages for five
(15) years. Petitioner's reinstatement in
the instant case which was ordered
pursuant to a grant of executive clemency
was effected not because of lack of
sufficient proof of his commission of the
offense but that, more importantly, he did
not commit the offense charged. Verily,
law, equity and justice dictate that
petitioner be afforded compassion for the
embarrassment, humiliation and, above
all, injustice caused to him and his family

by his unfounded dismissal. This Court


cannot help surmising the painful stigma
that must have caused petitioner, the
incursion on his dignity and reputation, for
having been adjudged, albeit wrongfully, a
dishonest man, and worse, a thief.
Consequently, this Court finds it fair and
just to award petitioner full back wages
from 1 April 1975 when he was illegally
dismissed, to 12 March 1984 when he was
reinstated. The payment shall be without
deduction or qualification.

ordering public respondents, the Chairman


of the Commission on Audit, the Minister
(now Secretary) of Land Transportation
and
Communications,
the
Regional
Director of Telecom Regional Office No. IV,
or whoever may be sitting in office in their
stead, to pay the full amount of
petitioner's back salaries from 1 April 1975
to 12 March 1984 based on his latest
salary scale.

WHEREFORE, the petition is GRANTED.


The decision of respondent Commission on
Audit dated 23 July 1985 is REVERSED and
SET ASIDE, and a new one entered

Cruz, Grio-Aquino,
Quiason, JJ., concur.

SO ORDERED.
Davide,

Jr.

and