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

RUBEN A. VILLALUZ, petitioner,vs.CALIXTO ZALDIVAR, ET AL., respondents.

Magtanggol C. Gunigundo and Juan T. David for petitioner.Office of the Solicitor General for respondents.

BAUTISTA ANGELO, J.:

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

He alleged that he was nominated as chief of said office on May 20, 1958 and two days thereafter his nomination was confirmed by the Commission on Appointments; that on May 26, 1958 he took his oath of office as such after having been informed of his nomination by then Acting Assistant Executive Secretary Sofronio C. Quimson; that in a letter dated January 28, 1960 addressed to the President of the Philippines by Congressman Joaquin R. Roces as Chairman of the Committee on Good Government of the House of Representatives, the latter informed the former of the findings made by his Committee concerning alleged gross mismanagement and inefficiency committed by petitioner in the Motor Vehicles Office which are summed up in the letter, as follows: (1) malpractice in office resulting in huge losses to the government; (2) failure to correct inadequate controls or intentional toleration of the same, facilitating thereby the commission of graft and corruption; and (3) negligence to remedy unsatisfactory accounting; that as a result of said findings. Congressman Roces recommended the replacement of petitioner and of his assistant chief Aurelio de Leon as well as the complete revamp of the offices coming under the Motor Vehicles Office by the new chief

who may be appointed thereafter; that having been officially informed of the content of said letter, then Secretary of Public Works and Communications furnished petitioner with a copy thereof requiring him to explain within 72 hours why no administrative action should be taken against him relative to the charges contained in the letter; that petitioner answered the letter as required wherein he explained and refuted in detail each and everyone of the charges contained in the letter of Congressman Roces; that on February 15, 1960, the then Executive Secretary Natalio P. Castillo suspended petitioner as Administrator of the Motor Vehicles Office, having thereupon created an investigating committee with the only purpose of investigating the charges against petitioner and his assistant Aurelio de Leon, and to undertake the investigation a prosecution panel was created headed by Special Prosecutor Emilio A. Gancayco; that after the investigation said committee submitted its report to the President of the Philippines who thereafter issued Administrative Order No. 332 decreeing the removal from office of petitioner; that as a result of petitioner's removal Apolonio Ponio was appointed to take his place as acting administrator; and that, after having been officially notified of his removal, petitioner filed a motion for reconsideration and/or reinstatement, and when this was denied, he filed the instant petition before this Court.

Respondents in their answer denied the claim of petitioner that the charges contained in the letter of Congressman Roces were not directed against him but against his office in general for the truth is that he was, specifically charged with mismanagement, gross inefficiency and negligence in the performance of his duties as Chief of the Motor Vehicles Office, and as a result he was required to the same within 72 hours to explain why no disciplinary action should be taken against him. Respondents also denied that petitioner was investigated without being accorded due process is required

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by law for in fact he was given every reasonable opportunity to present his defense, to secure the attendance of witnesses, and to produce documents in his behalf in a manner consistent with administrative due process. Respondent also averred that the President of thePhilippines, contrary to petitioner's claim, has jurisdiction to investigate and remove him since he is a presidential appointee who belongs to the non-competitive or unclassified service under Section 5 of Republic Act No. 2260. Respondents finally averred that the letter of Congressman Joaquin R. Roces is in effect a valid administrative complaint because it contained specific charges which constitute just causes for his suspension and removal; that said charges need not be sworn to for the Chief Executive, as administrative head of petitioner, is empowered to commence administrative proceedings motu proprio pursuant to Executive Order No. 370, series of 1941, without need of any previous verified complaint. And as special defense respondents averred that petitioner is guilty of laches for having allowed almost four years before instituting the present action.

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

There is some point in the argument that the power of control of the President may extend to the power to investigate, suspend or remove officers and employees who belong to the executive department if they are presidential appointees or do not belong to the classified service for

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

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

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

Let us now take up the power of control given to the President by the Constitution over all officers and employees in the executive departments which is now involved by

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

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

With regard to the claim that the administrative proceedings conducted against petitioner which led to his separation are illegal simply because the charges preferred against him by Congressman Roces were not sworn to as required by Section 72 of Republic Act No. 2260, this much we can say:

said proceedings having been commenced against petitioner upon the authority of the Chief Executive who was his immediate administrative head, the same may be commenced by him motu proprio without previous verified complaint pursuant to Executive Order No. 370, series of 1941, the pertinent provisions of which are is follows:

(1) Administrative proceedings may be commenced a government officer or employee by the head or chief of the bureau or office concerned motu proprio or upon complaint of any person which shall be subscribed under oath by the complainant: Provided, That if a complaint is not or cannot be sworn to by the complainant, the head or chief of the bureau or office concerned may in his discretion, take action thereon if the public interest or the special circumstances of the case, so warrant.1

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

WHEREFORE, petition is denied. No costs.

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

Zaldivar, J., took no part.

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Footnotes

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

G.R. No. 88211 October 27, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,vs.HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents.

R E S O L U T I O N

EN BANC:

In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition, after finding that the President did not act arbitrarily or with

grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances pose a threat to national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such time as the government, be it under this administration or the succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments:

1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the inherent right of citizens to return to their country of birth but also the protection of the Constitution and all of the rights guaranteed to Filipinos under the Constitution;

2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that the Court reconsider its decision, order respondents to issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin respondents from implementing President Aquino's decision to bar the return of the remains

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of Mr. Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view that no compelling reasons have been established by petitioners to warrant a reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual scenario under which the Court's decision was rendered. The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that the matter "should be brought to all the courts

of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.

That the President has powers other than those expressly stated in the Constitution is nothing new. This is recognized under the U.S. Constitution from which we have patterned the distribution of governmental powers among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the United States of America." In Alexander Hamilton's widely accepted view, this statement cannot be read as mere shorthand for the specific executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference between the sweeping language of article II, section 1, and the conditional language of article I, [section] 1: "All legislative Powers herein granted shall be vested in a Congress of the United States . . ." Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31 ought therefore to be considered, as intended merely to specify the principal

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articles implied in the definition of execution power; leaving the rest to flow from the general grant of that power, interpreted in confomity with other parts of the Constitution...

In Myers v. United States, the Supreme Court — accepted Hamilton's proposition, concluding that the federal executive, unlike the Congress, could exercise power from sources not enumerated, so long as not forbidden by the constitutional text: the executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear that the constitutional concept of inherent power is not a synonym for power without limit; rather, the concept suggests only that not all powers granted in the Constitution are themselves exhausted by internal enumeration, so that, within a sphere properly regarded as one of "executive' power, authority is implied unless there or elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the President's implied or residual powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual powers of the President under the Constitution should not be confused with the power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to

meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President under the 1987 Constitution and the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of the specific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

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G.R. No. 96409 February 14, 1992

CITIZEN J. ANTONIO M. CARPIO, petitioner,vs.THE EXECUTIVE SECRETARY, THE SECRETARY OF LOCAL GOVERNMENTS, THE SECRETARY OF NATIONAL DEFENSE and THE NATIONAL TREASURER, respondents.

PARAS, J.:

At the very outset, it should be well to set forth the constitutional provision that is at the core of the controversy now confronting us, thus:

Article XVI, Section 6:

The State shall establish and maintain one police force, which stall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law. 1

With the aforequoted provision in mind, Congress passed Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES" as the consolidated version of House Bill No. 23614 and Senate Bill No. 463.

Following the said Act's approval by President Corazon C. Aquino on December 13, 1990, it was published on December 17, 1990. 2

Presently, however, petitioner as citizen, taxpayer and member of the Philippine Bar sworn to defend the Constitution, filed the petition now at bar on December 20, 1990, seeking this Court's declaration of unconstitutionality of RA 6975 with prayer for temporary restraining order.

But in an en banc resolution dated December 27, 1990, We simply required the public respondents to file their Comment, without however giving due course to the petition and the prayer therein. Hence, the Act took effect after fifteen days following its publication, or on January 1, 1991. 3

Before we settle down on the merits of the petition, it would likewise be well to discuss albeit briefly the history of our police force and the reasons for the ordination of Section 6, Article XVI in our present Constitution.

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During the Commonwealth period, we had the Philippine Constabulary as the nucleus of the Philippine Ground Force (PGF), now the Armed Forces of the Philippines (AFP). The PC was made part of the PGF but its administrative, supervisory and directional control was handled by the then Department of the Interior. After the war, it remained as the "National Police" under the Department of National Defense, as a major service component of the AFP. 4

Later, the Integration Act of 1975 5 created the Integrated National Police (INP) under the Office of the President, with the PC as the nucleus, and the local police forces as the civilian components. The PC-INP was headed by the PC Chief who, as concurrent Director-General of the INP, exercised command functions over the INP. 6

The National Police Commission (NAPOLCOM) 7 exercised administrative control and supervision while the local executives exercised operational supervision and direction over the INP units assigned within their respective localities. 8

The set-up whereby the INP was placed under the command of the military component, which is the PC, severely eroded the INP's civilian character and the multiplicity in the governance of the PC-INP resulted in inefficient police service. 9 Moreover, the integration of the national police forces with the PC also resulted in inequities since the military component had superior benefits and privileges. 10

The Constitutional Commission of 1986 was fully aware of the structural errors that beset the system. Thus, Com. Teodulo C. Natividad explained that:

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MR. NATIVIDAD. . . . The basic tenet of a modern police

organization is to remove it from the military. 11

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Here in our draft Constitution, we have already made a constitutional postulate that the military cannot occupy any civil service position [in Section 6 of the Article on the Civil Service 12] Therefore, in keeping with this and because of the universal acceptance that a police force is a civilian function, a public service, and should not be performed by military force, one of the basic reforms we are presenting here is that it should be separated from the military force which is the PC. 13

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Furthermore:

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. . . the civilian police cannot blossom into full profession because most of the key positions are being occupied by the military So, it is up to this Commission to remove the police from such a situation so that it can develop into a truly professional civilian police. . . . 14

Hence, the "one police force, national in scope, and civilian in character" provision that is now Article XVI, Section 6 of the 1987 Constitution.

And so we now come to the merits of the petition at hand.

In the main, petitioner herein respectfully advances the view that RA 6975 emasculated the National Police Commission by limiting its power "to administrative control" over the Philippine National Police (PNP), thus, "control" remained with the Department Secretary under whom both the

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National Police Commission and the PNP were placed. 15

We do not share this view.

To begin with, one need only refer to the fundamentally accepted principle in Constitutional Law that the President has control of all executive departments, bureaus, and offices to lay at rest petitioner's contention on the matter.

This presidential power of control over the executive branch of government extends over all executive officers from Cabinet Secretary to the lowliest clerk 17 and has been held by us, in the landmark case of Mondano vs. Silvosa, 18 to mean "the power of [the President] to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter." It is said to be at the very "heart of the meaning of Chief Executive." 19

Equally well accepted, as a corollary rule to the control powers of the President, is the "Doctrine of Qualified Political Agency". As the President cannot be expected to exercise his control powers all at the same time and in person, 20 he will have to delegate some of them to his Cabinet members.

Under this doctrine, which recognizes the establishment of a single executive, 21 "all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person on the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, unless

disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive." 22 (emphasis ours)

Thus, and in short, "the President's power of control is directly exercised by him over the members of the Cabinet who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department." 23

Additionally, the circumstance that the NAPOLCOM and the PNP are placed under the reorganized Department of Interior and Local Government is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public safety agencies created under the assailed Act, 24 the funding of the PNP being in large part subsidized by the national government.

Such organizational set-up does not detract from the mandate of the Constitution that the national police force shall be administered and controlled by a national police commission as at any rate, and in fact, the Act in question adequately provides for administration and control at the commission level, as shown in the following provisions, to wit:

Sec. 14. Powers and Functions of the Commission. — The Commission shall exercise the following powers and functions:

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(i) Approve or modify plans and programs on education and training, logistical requirements, communications, records, information systems, crime laboratory, crime prevention and

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crime reporting;

(j) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the PNP;

(k) Exercise appellate jurisdiction through .the regional. appellate boards over administrative cases against policemen and over decisions on claims for police benefits;

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Sec. 26. The Command and direction of the PNP shall be vested in the Chief of the PNP . . . Such command and direction of the Chief of the PNP may be delegated to subordinate officials with respect to the units under their respective commands, in accordance with the rules and regulations prescribed by the Commission. . . .

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Sec. 35. . . . To enhance police operational efficiency and effectiveness, the Chief of the PNP may constitute such other support units as may be necessary subject to the approval of the Commission. . . .

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Sec. 37. . . . There shall be established a performance evaluation system which shall be administered in accordance with the rules, regulations and standards; and a code of conduct promulgated by the Commission for members of the PNP. . . .

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Petitioner further asserts that in manifest derogation of the power of control of the NAPOLCOM over the PNP, RA 6975 vested the power to choose the PNP Provincial Director and the Chiefs of Police in the Governors and Mayors, respectively; the power of "operational supervision and control" over police units in city and municipal mayors; in the Civil Service Commission, participation in appointments to the positions of Senior Superintendent to Deputy Director-General as well as the administration of qualifying entrance examinations; disciplinary powers over PNP members in the "People's Law Enforcement Boards" and in city and municipal mayors. 25

Once more, we find no real controversy upon the foregoing assertions.

It is true that when the Constitutional Commissioners of 1986 provided that the authority of local executives over the police units in their jurisdiction shall be provided by law, they intended that the day-to-day functions of police work like crime, investigation, crime prevention activities, traffic control, etc., would be under the operational control of the local executives as it would not be advisable to give full control of the police to the local executives. 26

They reasoned that in the past, this gave rise to warlordism, bossism, and sanctuaries for vices and abuses. 27

It would appear then that by vesting in the local executives the power to choose the officers in question, the Act went beyond the bounds of the Constitution's intent.

Not so. We find light in the principle of constitutional construction that every presumption should be indulged in favor of constitutionality and the court in considering the validity of the statute in question should give it such reasonable construction as can be reached to bring it within

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the fundamentallaw. 28

Under the questioned provisions, which read as follows:

D. PARTICIPATION OF LOCAL EXECUTIVES IN THE ADMINISTRATION OF THE PNP.

Sec. 51. Powers of Local Government Officials over the PNP Units or Forces.

Governors and mayors shall be deputized as representatives of the Commission in their respective territorial jurisdictions. As such, the local executives shall discharge the following functions:

a.) Provincial Governor — (1) . . .

The provincial governor shall choose the provincial director from a list of three (3) eligibles recommended by the PNP Regional Director.

4) . . . City and municipal mayors shall have the following authority over the PNP units in their respective jurisdictions:

i.) Authority to choose the chief of police from a list of five (5) eligibles recommended by the Provincial Police Director. . . . (Emphasis ours)

full control remains with the National Police Commission.

We agree, and so hold, with the view of the Solicitor General that "there is no usurpation of the power of control of the NAPOLCOM under Section 51 because under this very same provision, it is clear that the local executives are only acting as representatives of the NAPOLCOM. . . . As such deputies, they are answerable to the NAPOLCOM for their actions in

the exercise of their functions under that section. Thus, unless countermanded by the NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM." 29 It is significant to note that the local officials, as NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the general qualifications for appointment to the PNP) 30 to be recommended by PNP officials.

The same holding is true with respect to the contention on the operational supervision and control exercised by the local officials. Those officials would simply be acting as representatives of the Commission.

As regards the assertion involving the Civil Service Commission, suffice it to say that the questioned provisions, which read:

Sec. 31. Appointment of PNP Officers and Members. — The Appointment of the officers and members of the PNP shall be effected in the following manner:

a.) Police Officer I to Senior Police Officer IV. — Appointed by the PNP regional director for regional personnel or by the Chief of the PNP for national headquarters personnel and attested by the Civil Service Commission;

b.) Inspector to Superintendent. — Appointed by the Chief of the PNP, as recommended by their immediate superiors, and attested by the Civil Service Commission;

c.) Senior Superintendent to Deputy Director-General. — Appointed by the President upon recommendation of the Chief of the PNP, with proper endorsement by the Chairman of the Civil ServiceCommission . . .

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Sec. 32. Examinations for Policemen. — The Civil Service Commission shall administer the qualifying entrance examinations for policemen on the basis of the standards set by the NAPOLCOM.

precisely underscore the civilian character of the national police force, and will undoubtedly professionalize the same.

The grant of disciplinary powers over PNP members to the "People's Law Enforcement Boards" (or the PLEB) and city and municipal mayors is also not in derogation of the commission's power of control over the PNP.

Pursuant to the Act, the Commission exercises appellate jurisdiction, thru the regional appellate boards, over decisions of both the PLEB and the said mayors. This is so under Section 20(c). Furthermore, it is the Commission which shall issue the implementing guidelines and procedures to be adopted by the PLEB for in the conduct of its hearings, and it may assign NAPOLCOM hearing officers to act as legal consultants of the PLEBs (Section 43-d4, d5).

As a disciplinary board primarily created to hear and decide citizen's complaints against erring officers and members of the PNP, the establishment of PLEBs in every city, and municipality would all the more help professionalize the police force.

Petitioner would likewise have this Court imagine that Section 12 of the questioned Act, the pertinent portion of which reads:

Sec. 12. Relationship of the Department with the Department of National Defense. — During a period of twenty- four (24) months from the effectivity of this Act, the Armed Forces of the Philippines (AFP) shall continue its present role of preserving the internal and external security

of the State: Provided, that said period may be extended by the President, if he finds it justifiable, for another period not exceeding twenty-four (24) months, after which, the Department shall automatically take over from the AFP the primary role of preserving internal security, leaving to the AFP its primary role of preserving external security.

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constitutes an "encroachment upon, interference with, and an abdication by the President of, executive control and commander-in-chief powers."

That We are not disposed to do for such is not the case at all here. A rejection thus of petitioner's submission anent Section 12 of the Act should be in order in the light of the following exchanges during the CONCOM deliberations of Wednesday, October 1, 1986:

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MR. RODRIGO. Just a few questions. The President of the Philippines is the Commander-in-Chief of all the armed forces.

MR. NATIVIDAD. Yes, Madam President.

MR. RODRIGO. Since the national police is not integrated with the armed forces, I do not suppose they come under the Commander-in-Chief powers of the President of the Philippines.

MR. NATIVIDAD. They do, Madam President. By law they are under the supervision and control of the President of the Philippines.

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MR. RODRIGO. Yes, but the President is not the Commander-in-Chief of the national police.

MR. NATIVIDAD. He is the President.

MR. RODRIGO. Yes, the Executive. But they do not come under that specific provision that the President is Commander-in-Chief of all the armed forces.

MR. NATIVIDAD. No, not under the Commander-in-Chief provision.

MR. RODRIGO. There are two other powers of the President. The President has control over departments, bureaus and offices, and supervision over local governments. Under which does the police fall, under control or under supervision?

MR. NATIVIDAD. Both, Madam President.

MR. RODRIGO. Control and Supervision.

MR. NATIVIDAD. Yes, in fact, the National Police Commission is under the Office of the President. (CONCOM RECORDS, Vol. 5, p. 296)

It thus becomes all too apparent then that the provision herein assailed precisely gives muscle to and enforces the proposition that the national police force does not fall under the Commander-in-Chief powers of the President. This is necessarily so since the police force, not being integrated with the military, is not a part of the Armed Forces of the Philippines. As a civilian agency of the government, it properly comes within, and is subject to, the exercise by the President of the power of executive control.

Consequently, Section 12 does not constitute abdication of

commander-in-chief powers. It simply provides for the transition period or process during which the national police would gradually assume the civilian function of safeguarding the internal security of the State. Under this instance, the President, to repeat, abdicates nothing of his war powers. It would bear to here state, in reiteration of the preponderant view, that the President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the Commander-in-Chief provision "represent only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature." 31 His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that "civilian authority is, at all times, supreme over the military." (Article II, Section 3, 1987 Constitution)

Finally, petitioner submits that the creation of a "Special Oversight Committee" under Section 84 of the Act, especially the inclusion therein of some legislators as members (namely: the respective Chairmen of the Committee on Local Government and the Committee on National Defense and Security in the Senate, and the respective Chairmen of the Committee on Public Order and Security and the Committee on National Defense in the House of Representatives) is an "unconstitutional encroachment upon and a diminution of, the President's power of control over all executive departments, bureaus and offices."

But there is not the least interference with the President's power of control under Section 84. The Special Oversight Committee is simply an ad hoc or transitory body, established and tasked solely with planning and overseeing the immediate "transfer, merger and/or absorption" into the Department of the Interior and Local Governments of the "involved agencies." This it will undertake in accordance with the phases of implementation already laid down in

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Section 85 of the Act and once this is carried out, its functions as well as the committee itself would cease altogether. 32 As an ad hoc body, its creation and the functions it exercises, decidedly do not constitute an encroachment and in diminution of the power of control which properly belongs to the President. What is more, no executive department, bureau or office is placed under the control or authority, of the committee. 33

As a last word, it would not be amiss to point out here that under the Constitution, there are the so-called independent Constitutional Commissions, namely: The Civil Service Commission, Commission on Audit, and the Commission on Elections. (Article IX-A, Section 1)

As these Commissions perform vital governmental functions, they have to be protected from external influences and political pressures. Hence, they were made constitutional bodies, independent of and not under any department of the government. 34 Certainly, they are not under the control of the President.

The Constitution also created an independent office called the "Commission on Human Rights." (Article XIII, Section 17[1]).However, this Commission is not on the same level as the Constitutional Commissions under Article IX, although it is independent like the latter Commissions. 35 It still had to be constituted thru Executive Order No. 163 (dated May 5, 1987).

In contrast, Article XVI, Section 6 thereof, merely mandates the statutory creation of a national police commission that will administer and control the national police force to be established thereunder.

This commission is, for obvious reasons, not in the same category as the independent Constitutional Commissions of

Article IX and the other constitutionally created independent Office, namely, the Commission on Human Rights.

By way of resume, the three Constitutional Commissions (Civil Service, Audit, Elections) and the additional commission created by the Constitution (Human Rights) are all independent of the Executive; but the National Police Commission is not. 36 In fact, it was stressed during the CONCOM deliberations that this commission would be under the President, and hence may be controlled by the President, thru his or her alter ego, the Secretary of the Interior and Local Government.

WHEREFORE, having in view all of the foregoing holdings, the instant petition is hereby DISMISSED for lack of merit.

SO ORDERED.

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G.R. No. 85243 October 12, 1989

CESAR R. DE LEON, petitioner,vs.J. ANTONIO M. CARPIO, Director, National Bureau of Investigation, respondent.

G.R.No. 85442 October 12, 1989

FRANCISCO R. ESTAVILLO petitionervs.J. ANTONIO M. CARPIO, Director, National Bureau of Investigation, respondent.

Ramon E. Encarnacion for petitioner Cesar R. De Leon.

Doroteo B. Daguna for petitioner

CRUZ, J.:

These two cases have been consolidated because they involve the same issue against the respondent Director of the National Bureau of Investigation, who has refused to reinstate the petitioners in defiance of the orders of the Civil Service Commission as referred to him by the Secretary of Justice for implementation.

The services of Francisco R. Estavillo as Agent III and of Cesar R. de Leon as Head Agent in the National Bureau of Investigation were terminated by then Minister of Justice Neptali A. Gonzales in separate Orders both dated January 27, 1987. 1 Estavillo was notified of his dismissal on March 6,1987, and De Leon on February 6, 1987 . 2 Both appealed

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to the Review Committee created under Executive Order No. 17, but this body declined to act on their petitions for reconsideration on the ground that it had lost jurisdiction with the ratification of the new Constitution on February 2, 1987. They were advised instead to seek relief from the Civil Service Commission. 3 They did. In substantially similar Orders, 4 they were sustained by the Merit Systems Protection Board of the said Commission. It was held that their dismissals were invalid and unconstitutional, having been done in violation of their security of tenure under the 1987 Constitution, which had already become effective. Accordingly, the Board ordered their reinstatement with back salaries but without prejudice to the filing of appropriate administrative charges against them.

On September 29, 1987, Undersecretary of Justice Eduardo G. Montenegro referred the order reinstating Estavillo to the respondent as Director of the National Bureau of Investigation "for his information and appropriate action." 5 On March 14, 1988, Undersecretary of Justice Silvestre H. Bello III referred the order reinstating De Leon to the respondent "for appropriate action" and "immediate implementation." 6

The reaction of the respondent was to return the said orders to the Civil Service Commission "without action," claiming that they were null and void for having been rendered without jurisdiction. 7 This prompted the Board to issue another Order dated June 20, 1988, in which it rejected the respondent's contention and concluded that "it appearing that the reglementary period to appeal has long expired, the orders dated August 27,1987 and March 4,1988, of this Board have become final and executory and, therefore, should now be implemented." 8

On June 29, 1988, the Secretary of Justice sent the following memorandum 9 to the respondent:

June 29, 1988

MEMORANDUM

TO: NBI Director J. Antonio Carpio

RE: Order of the Merit Systems Protection Board of the Civil Service Commission, reiterating the reinstatement of Messrs. Cesario de Leon and Francisco Estabillo to their former positions.

Your attention is invited to the enclosed Order of the Merit Systems Protection Board, dated June 20, 1988, particularly the last paragraph thereof which reads as follows:

In view of the foregoing, and it appearing that the reglementary period to appeal has long expired, the orders dated August 27, 1987 and March 4,1988 of this Board have become final and executory and, therefore, should now be implemented.

You are therefore directed to implement immediately the aforecited Order of the Merit Systems Protection Board reiterating the reinstatement of Messrs. Cesario de Leon and Francisco Estabillo to their former positions.

SEDFREY A. ORDOÑEZ

Secretary of Justice

Instead of complying, the respondent issued the following memorandum: 10

1 July 1988

MEMORANDUM TO: NBI Assistant Director

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NBI Deputy Directors

Chief, Legal Division

Unit Chiefs of Agents Concerned

OIC Personnel Division

Cashier

1. This refers to the attached letter dated 21 June 1988 from the Merit Systems Protection Board of the Civil Service Commission, Quezon City, received by this Office on 28 June 1988, transmitting an unauthenticated duplicate of an alleged order of the said Board dated 20 June 1988 reiterating its orders of 27 August 1987 and March 4, 1988 requiring reinstatement of NBI Agents Francisco R. ESTABILLO and Cesar R. DE LEON.

2. As explicitly stated in detail in the 2nd Indorsements by the undersigned to the transmittal letters of the aforementioned orders of 27 August 1987 and 4 March 1988, the same are null and void ab initio for having been issued with want of jurisdiction by said Board;

WHEREFORE, you are hereby directed TO DISREGARD and NOT to give any faith and credence, or otherwise honor or give due course to said illegal and void orders of the Merit Systems Protection Board, Civil Service Commission, dated 20 June 1988, 27 August 1987 and 4 March 1988 ordering the reinstatement, with payment of back salaries, of Agents Francisco R. ESTABILLO and Cesar R. DE LEON.

J. ANTONIO CARPIO

Director

Unable to return to their respective positions, Estavillo and De Leon came to this Court in separate petitions for mandamus. The respondent was required to comment. He again questioned the jurisdiction of the Board, contending inter alia that it had no authority to review dismissals made under the Freedom Constitution and that the petitioners' dismissals were already final, not having been seasonably appealed. The Solicitor General also filed a Consolidated Comment to these and other cases involving the validity of the various ongoing government reorganizations. However, he did not touch on the vital issue which we feel is controlling in the two petitions before us.

That issue, simply, is whether or not the Director of the National Bureau of Investigation can disobey an explicit and direct order issued to him by the Secretary of Justice.

To ascertain the present attitude of the Secretary of Justice on this question, and on the possibility that he might have had a change of heart in regard to his orders, the Court issued on July 4, 1989, the following resolution:

In G.R. No. 85442 (FRANCISCO R. ESTAVILLO v. J. ANTONIO CARPIO), the Department of Justice issued the following directives to the respondent requiring him to reinstate the herein petitioner:

1 First Indorsement dated September 29,1987 from the Undersecretary of Justice Eduardo G. Montenegro (Annex "D"; p. 13 of Rollo).

2 Memorandum dated June 29, 1988 from Secretary of Justice Sedfrey A. Ordoñez (Annex "G"; p. 22 of Rollo).

In G.R. No. 85243 (CESAR DE LEON v. J. ANTONIO M. CARPIO), the Department of Justice issued the following

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directives to the respondent requiring him to reinstate the herein petitioner:

1. First Indorsement dated March 14,1988 from the Undersecretary of Justice Silvestre Bello III (Annex "D", p. 14 of Rollo).

2. Memorandum dated June 29,1988 from Secretary of Justice Sedfrey Ordoñez (Annex "G"; p. 24 of Rollo).

It appearing that the respondent NBI Director has not complied with the said orders in both cases, the Court Resolved to REQUIRE the Secretary of Justice to file a Consolidated Comment stating his position on the disregard of the said orders.

On August 9, 1989, Secretary Sedfrey A. Ordoñez filed his Consolidated Comment through Undersecretary Eduardo G. Montenegro and declared:

It is submitted that the Orders of the Merit Systems Protection Board reinstating Messrs. Estavillo and de Leon are valid and should be respected by the agency head concerned. Dismissals pursuant to E.O. No. 17 are summary and contemplate non-adversary proceedings. They are not dismissals for cause within the meaning of the security of tenure provisions of the Civil Service Law and of the Constitution. The dismissal from the service of Messrs. Estavillo and de Leon was made pursuant to E.O. No. 17; but as the Review Committee observed, the dismissal was effective upon receipt by the petitioners of their respective notices of termination on March 6, 1987 for Mr. Estavillo, and on February 6,1987, for Mr. de Leon, or several days after the ratification of the 1987 Constitution. Their dismissal was, therefore, virtually a dismissal under the 1987 Constitution then already in place; and because it was a summary dismissal as the intention really was to dismiss

them pursuant to E.O. No. 17, it did not conform with the requirements of due process consistent with the security of tenure clause embodied in the 1987 Constitution. The separate Orders of the Merit Systems Protection Board directing their reinstatement in office "but without prejudice to the filing of appropriate administrative charges against (them) as evidence warrants, in accordance with the Civil Service Law and Rules" (see Annexes "2" and "5") are, therefore consistent with the Constitutional mandate that "(n)o officer or employee of the civil service shall be removed or suspended except for cause provided by law" (Sec. 2[3], Art. IX-B, 1987 Constitution).

His conclusion reads as follows:

The Secretary of Justice reiterates the directives of the Department of Justice, namely, his Memorandum dated June 29, 1988, 1st Indorsement dated September, 29, 1987 of Undersecretary of Justice Eduardo G. Montenegro, and 1st Indorsement dated March 14, 1988 of Undersecretary of Justice Silvestre Bello III, all addressed to NBI Director J. Antonio Carpio, to reinstate Messrs. Francisco Estavillo and Cesar de Leon to their former positions in compliance with the Orders dated August 27, 1987, March 4, 1988 and June 20, 1988 of the Merit Systems Protection Board.

The Secretary of Justice finds no valid reasons why the aforesaid Orders of the Merit Systems Protection Board regarding the reinstatement of Messrs. Francisco Estavillo and Cesar de Leon, should not be implemented.

On August 15, 1989, the respondent filed a Reply without having previously been allowed or required by the Court to do so. He began by insinuating that as the above consolidated cases had already been submitted for decision, we should not have required additional pleadings. We can disregard this temerity as an unintentional insolence. But it

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cannot be as easily dismissed that in this Reply Director Carpio has again manifested his defiance of Secretary Ordoñez. More direct this time, the respondent insists "that the Secretary of Justice had no power to declare invalid or unconstitutional any Presidential proclamation, order, instruction or rule and regulation." "Neither could he ignore the final decision of the former Minister of Justice" "nor (could he) compel compliance to (sic) said order of the Civil Service Commission issued with want of jurisdiction."

One may well wonder how Secretary Ordoñez would react to this new challenge to his authority. Perhaps the forebearing Secretary would prefer to be tactful again as when he opted not to make a categorical statement in his Consolidated Comment on Director Carpio's obvious intransigence. At any rate, for all his restrained and courteous language, the Secretary's position is clear enough. There is not the slightest indication that he has relented on his memorandum of June 29, 1988, or that he now supports the Director's belligerent stand.

It is an elementary principle of our republican government, enshrined in the Constitution and honored not in the breach but in the observance, that all executive departments, bureaus and offices are under the control of the President of the Philippines. This precept, first embodied in the Commonwealth Constitution and 11 reiterated in the 1973 Constitution, 12 has been retained in Article VII, Section 17 of the present Constitution.

The President's power of control is directly exercised by him over the members of the Cabinet who, in turn and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department. The constitutional vesture of this power in the President is self-executing and does not require statutory implementation, nor may its be exercise be limited, much less withdrawn, by

the legislature.

Thus, in Lacson-Magallanes v. Pano, 13 the Court held that a statute making decisions of the department secretaries final and unappealable would nevertheless not prevent the President from reviewing and if necessary reversing such decisions by virtue of his constitutional power of control over the members of his Cabinet.

Theoretically, the President has full control of all the members of his Cabinet and may appoint them as he sees fit or shuffle them at pleasure, subject only to confirmation by the Commission on Appointments, and replace them in his discretion. Once in place, they are at all times under the disposition of the President as their immediate superior. Justice Laurel put it aptly in Villena v. Secretary of theInterior, 14 when he said that "without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the President." Hence, "their acts, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive."

It is recalled that in Noblejas v. Salas, 15 the fiscal who conducted the preliminary investigation recommended that no criminal action be taken against the petitioner in view of the insufficiency of evidence against him and the finding that he had acted in good faith. This recommendation was expressly approved by the Secretary of Justice. Subsequently, the new fiscal who had taken over the prosecution disregarded these acts and included the petitioner among the accused in the same criminal case covered by the Secretary's directive. The Court granted certiorari and set aside the resolution of the trial court denying the petitioner's motion to quash. We held that the fiscal was bound to obey the order of the Secretary of

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Justice, who was exercising over him the President's constitutional power of control.

In the case at bar, there is no question that when he directed the respondent to reinstate the petitioners, Secretary Ordoñez was acting in the regular discharge his functions as an alter ego of the President. His acts should therefore have been respected by the respondent Director of the National Bureau of Investigation, which is in the Department of Justice under the direct control of its Secretary. As a subordinate in this department, the respondent was (and is) bound to obey the Secretary's directives, which are presumptively the acts of the President of the Philippines.

It remains to observe that what the petitioners should have done in the first place was to complain to Secretary Ordoñez that his directives for their reinstatement had been disregarded by Director Carpio. Thus informed, the Secretary would have reiterated his orders and required immediate compliance therewith by the respondent. This is not to say that the doctrine of exhaustion of administrative remedies was strictly required in this case for the petitioners were raising a pure question of law. That is one of the exceptions to the rule. Even so, compliance with the usual procedure could have easily obtained for the petitioners the relief they now seek from this Court.

Our conclusion is that this regrettable controversy would not have arisen at all if the respondent had had the humility to recognize the limits of his authority and acted accordingly. Plainly put, Director Carpio should have dutifully obeyed the orders of Secretary Ordoñez as his immediate superior in the Department Justice. That is what we must now order the respondent to do.

WHEREFORE, the petitions are GRANTED. The respondent is

hereby ORDERED to immediately reinstate the petitioners as directed by the Secretary of Justice in implementation of the challenged orders of the Merit Systems Protection Board of the Civil Service Commission. No costs.

SO ORDERED.

G. R. No. 101469 September 4, 1992

MALAYAN INTEGRATED INDUSTRIES, CORPORATION, petitioner,vs.THE HON. COURT OF APPEALS, CITY OF MANDAUE, MAYOR ALFREDO M. OUANO, VICE MAYOR PATERNO P. CANETE, SANGGUNIANG PANGLUNGSOD MEMBERS MANUEL M. MASANGKAY, NOEL C. SOON, CESAR CABAHUG, JR., RAYMUNDO A. CENIZA, CYNTHIA S. BLANCO, PONTICO E. FORTUNA, RAFAEL J. MAYOL and PAULINO P. DY, F.F. CRUZ & CO., INC., CEBU CONTRACTORS ASSOCIATION, MANDAUE REALTY & RESOURCES CORPORATION AND PHILIPPINE ORION PROPERTIES, INC., respondents.

Sumcad, Senires & Associates for petitioner.

GRIÑO-AQUINO, J.:

In this special civil action of certiorari and prohibition,

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Malayan Integrated Industries Corporation (hereafter MALAYAN) prays that upon the filing of its verified petition, a restraining order or a writ of preliminary injunction be issued by this Court to stop the respondents from further proceeding in CA-G.R. SP No. 25621 and, after a consideration of the merits of the petition, judgment be rendered annulling the appellate court's resolutions dated August 9, 1991 and August 28, 1991, and the writ of preliminary injunction issued by it on August 29, 1991.

The only issue in this case is whether the Court of Appeals exceeded its jurisdiction, or acted with grave abuse of discretion, in issuing a writ of preliminary injunction in CA-G.R. SP No. 25621 entitled, "The City of Mandaue, et al. vs. Hon. Leonardo B. Cañares and Malayan Integrated Industries Corporation," "enjoining the respondents and anyone acting in their place and stead, from enforcing the Orders of December 18, 1990 and June 28, 1991 in Civil Case No. CEB-9658 until further orders. . ." (p. 1239, Rollo, Vol. II).

This is a simple case which has been made to appear complicated by the over-extended pleadings of the parties. The petition and its annexes consist of 1,273 pages. The respondents are not to be outdone with their comments of 395 pages. Running true to form, the petitioner filed a reply of 307 pages. The pleadings comprise 3 volumes, each several inches thick. Such profligacy with words is hard to match. Counsels on both sides should heed the admonition of Justice Isagani A. Cruz that:

Counsel should remember that they do a disservice to the administration of justice and contribute to its delay by imposing on the time of the courts with irrelevant discussions that only clutter the record. (Arturo E. Edudela, et al. vs. Hon. Court of Appeals, et al., G.R. No. 89265, July 17, 1992.)

The records show that on December 12, 1977, a reclamation contract was signed between the City of Mandaue and MALAYAN for the reclamation of some 180 (later increased to 360) hectares of offshore and foreshore land and their development into an industrial and trading center with a modern harbor and port facilities for both domestic and international commerce. The area would connect Cebu City harbor with the City of Mandaue from the Cabahug coastway up to the Cebu City-Mandaue boundary. The project was supposed to be completed within four (4) years after approval of the contract by the Office of the President.

However, that transaction appeared to be unauthorized under P.D. No. 3-A dated January 11, 1973 which provides that the reclamation of areas under water, whether foreshore or inland, will be done only by the national government or any person authorized by it with a proper contract.

Moreover, Executive Order No. 525 of President Marcos designated the Public Estates Authority (PEA) as "the central authority primarily responsible for integrating, directing and coordinating all reclamation projects for and in behalf of the National Government."

Acting Minister of Justice Catalino Macaraig, Jr., in his Opinion No. 70, Series of 1979 dated July 16, 1979, opined that P.D. No. 3-A impliedly withdrew or repealed the right of Mandaue City under its charter (Sec. 94, R.A. 5519) to reclaim its submerged or foreshore lands. He added, however, that "if the PEA decides to authorize the City of Mandaue to reclaim its own foreshore, the former may execute a contract with the latter pursuant to the above-scored provision of Executive Order No. 3-A in connection with Sec. 1, of P.D. No. 3-A,. . . ." (p. 332, Rollo, Vol. I).

Accordingly, the Sangguniang Panlungsod of Mandaue, in its

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session of October 12, 1979, passed Resolution No. 116 authorizing the City Mayor to sign a Memorandum of Understanding with the PEA. Its Resolution No. 117 of the same date authorized the City Mayor to enter into a contract with the PEA for the reclamation of 360 hectares, more or less, of the foreshore and submerged lands of Mandaue City.

On November 26, 1979, the City of Mandaue and MALAYAN signed a Confirmatory Agreement whereby MALAYAN bound itself to undertake and prepare at its own expense, the detailed and integrated development plan on land use, including technical, economic, marketing and financial feasibility studies required by the Office of the President, and to submit the completed study "not later than July 31, 1980" (p. 344, Rollo, Vol. I).

On August 13, 1980, MALAYAN submitted to PEA documents relating to the Metro Cebu Reclamation and Development Project. Two days later, or on August 15, 1980, MALAYAN submitted a detailed land use and development strategy and an overview of the project.

On September 29, 1980, PEA Chairman, Ruben Ancheta, recommended approval of the project.

Although President Marcos "approved in principle" the reclamation and development project, the contract of reclamation and development between the City of Mandaue and MALAYAN remained hanging in the air (p. 338, Rollo, Vol. I).

After the 1986 "People Power" Revolution, the project was resubmitted to President Corazon C. Aquino for approval.

On June 13, 1988, the City of Mandaue reiterated its request to President Aquino "for approval and go-signal to commence the reclamation work" (p. 417, Rollo, Vol. I). The

letter was referred by the President to PEA.

As of May 24, 1989, the detailed and integrated plan on land use, including technical, economic, marketing and financial feasibility studies submitted by MALAYAN remained "still pending approval by the Office of the President." (p. 441, Rollo, Vol. I.)

On February 13, 1989, PEA's General Manager, Eduardo C. Zialcita, advised MALAYAN that the feasibility study should be updated.

Since the Office of the President seemed to have reservations concerning the contract between MALAYAN and the City of Mandaue, and in view of the City's desire to undertake the reclamation project without further delay, City Mayor Alfredo M. Ouano informed the PEA on April 15, 1989 that the City was negotiating with F.F. Cruz & Co., Inc., in consortium with the Cebu Contractors Association, to undertake the preparation of the detailed feasibility and development plan for the reclamation project. Mayor Ouano pointed out that F.F. Cruz & Co., Inc. is a reputable private construction firm in Manila, "with international prestige and proven capability as a reclamation contractor with its own dredging equipment and the financial capacity to undertake, on its own, the Mandaue reclamation project" (p. 483, Rollo, Vol. I).

On April 19, 1989, the Sangguniang Panlungsod of Mandaue passed Resolution No. 134/89 authorizing the City Mayor to enter into a reclamation contract with F.F. Cruz & Co., Inc. subject to the President's approval.

This contract with F.F. Cruz & Co., Inc., was signed a week later, on April 26, 1989.

Upon learning about the city's contract with F.F. Cruz & Co.,

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Inc., MALAYAN inquired from the Office of the President whether Section 7 of R.A. 5519, known as the Charter of the City of Mandaue, providing that the City alone shall have authority to reclaim its offshore land, had been repealed, revoked, amended or superseded by Section 1 of P.D. No. 3-A, promulgated on January 11, 1973, and Section 1 of E.O. No. 525 dated February 14, 1979.

The query was answered in the affirmative on August 31, 1989 by the Chief State Counsel, Elmer T. Bautista, citing Justice Secretary Macaraig's Opinion No. 70, S. 1979, "which opinion still stands" (p. 498, Rollo, Vol. I).

On May 6, 1989, the PEA recommended the approval in principle of the proposed reclamation project subject to the following conditions:

(a) Submission to PEA by the City of Mandaue, for review and approval a Master Development Plan for the planned reclamation, within six (6) months from date hereof, otherwise project approval shall be deemed automatically revoked.

(b) Undertaking of Detailed Engineering Studies for the major physical infrastructures involved.

(c) Supervision by PEA of the reclamation and related infrastructure works and the cost of such supervision to be charged to the Project.

(d) Delegation of authority to Mandaue City to negotiate with a reputable Contractor that shall undertake physical reclamation works under a proper contrast, which shall contain stipulations on the compensation, costs of the projects and other relevant conditions subject to the review and approval of the Public Estates Authority as provided under existing laws.

(e) That the previous approval in principle granted to Malayan Integrated Industries Corporation for a similar reclamation project, jointly with the Province of Cebu, City of Cebu, City of Mandaue, Municipality of Cordova and the City of Lapu-Lapu, by former President Marcos be deemed abandoned, and set aside, by reason of the failure of Malayan Integrated Industries Corporation to execute/implement the project for a long period of time reckoned from 1979 to the present. Moreover, there appears to be a lack of indorsement by the local government of Cebu Province and Mandaue City of this undertaking by Malayan Integrated Industries Corporation. (Emphasis supplied; pp. 530-531, Rollo, Vol. I.)

MALAYAN filed a protest with the Office of the President against the reclamation contract between the City of Mandaue and F.F. Cruz & Co. (pp. 542-545, Rollo, Vol. I).

On PEA's recommendation, Executive Secretary Catalino Macaraig, Jr., by authority of the President, approved on, June 27, 1989, the proposed Mandaue reclamation project, covering approximately 180 hectares of foreshore and submerged lands, subject to certain conditions, and declared that "the Contract of Reclamation and Development entered into by and between the City of Mandaue and Malayan Integrated Industries Corporation on December 12, 1977 is hereby DISAPPROVED, and/or is hereby declared as without force and effect, it appearing from the records that the same was entered in violation of the provisions of Section 1 of Presidential Decree No. 3-A, and/or for the failure of said corporation to implement, as stipulated, the project within a reasonable period of time." (pp. 583-584, Rollo, Vol. I; emphasis supplied.)

On November 26, 1990, MALAYAN filed in the Regional Trial Court, Branch 10, Cebu City (originally in the Regional Trial

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Court, Manila but it withdrew the case) a petition for prohibitory and mandatory preliminary injunction against the City of Mandaue, F.F. Cruz & Co., Inc., the Cebu Contractors Association, the Mandaue Realty Resources Corporation and Philippine Orion Properties, Inc. The case was docketed as Civil Case No. CEB-9658 in which MALAYAN prayed the Court to restrain the implementation of the reclamation contract between the City of Mandaue and F.F. Cruz & Co., Inc. as it would work injustice to MALAYAN and violate MALAYAN's valid and previously perfected contract with the City of Mandaue, and it would cause damages to MALAYAN which has already incurred expenses and invested huge sums of money in the Mandaue Reclamation Project. MALAYAN also prayed the Court to issue a writ of preliminary mandatory injunction allowing MALAYAN to immediately undertake actual reclamation works in the Mandaue Reclamation Project.

On November 29, 1990, the trial court issued a temporary restraining order enjoining the respondents "from further continuing with the implementation of the aforementioned contract being questioned, until further orders from this Court" (p. 649, Rollo, Vol. I).

An Urgent Motion to Quash the Restraining Order and a separate Motion to Dismiss the petition filed by the respondent did not prosper.

After a proper hearing, Judge Leonardo B. Cañares granted on December 18, 1990 the writ of preliminary prohibitory injunction prayed for by MALAYAN upon its posting a P5 million injunction bond. The dispositive part of his order reads as follows:

WHEREFORE, upon the filing of an injunction bond with this Court amounting to P5,000,000.00, let a writ of preliminary prohibitory injunction be issued, enjoining all of the

respondents, their assigns, agents, representatives or anybody acting for them or in their behalf from implementing the Contract of Reclamation dated April 26, 1989, executed by and between Mandaue City and respondents F.F. Cruz & Co., Inc. and Cebu Contractors Association and all other reclamation contracts executed in favor of said respondents and/or assigns by the City of Mandaue and/or Public Estates Authority, and from conducting any kind of works in any part of the area covered by the Mandaue Reclamation Project.

The motions to dismiss and other incidents filed by the respondents are hereby denied for being premature. (pp. 677-678, Rollo, Vol. I.)

After the respondents' motions for reconsideration were denied by the Court, they filed in the Court of Appeals on August 9, 1991, a petition for certiorari with prohibitory and mandatory preliminary restraining order and/or preliminary injunction (CA-G.R. SP No. 25621, entitled, "City of Mandaue, F.F. Cruz & Co., Inc., et al, petitioners vs. Judge Leonardo B. Cañares and Malayan Integrated Industries Corporation, respondents" praying that the preliminary writ of injunction issued by Judge Cañares be nullified, that respondent MALAYAN be prohibited from interfering with the reclamation works of the petitioners, City of Mandaue and F.F. Cruz; that respondents Judge Cañares and MALAYAN be restrained from enforcing the orders dated December 19, 1990 and June 28, 1991 of respondent Judge; that the petition of MALAYAN in the Case No. CEB-9658 be dismissed; and that MALAYAN be prohibited from interfering with the contract of reclamation between the City of Mandaue and F.F. Cruz & Co., Inc., the Memorandum of Agreement between the PEA, the City of Mandaue and MARECO, and all other related contracts and activities concerning the Mandaue Reclamation Project.

The Court of Appeals issued on August 9, 1991 a temporary

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restraining order to preserve the status quo and enjoined the respondents and anyone acting in their place from enforcing Judge Cañares' orders of December 19, 1990 and June 28, 1991, until further orders from said court.

On August 28, 1991, the Court of Appeals issued a writ of preliminary injunction upon a P10,000,000.00 bond posted by F.F. Cruz & Co., Inc.

Upon the denial of its motion for reconsideration of the appellate court's resolution, MALAYAN filed a petition for certiorari and prohibition in this Court to annul it.

After a careful consideration of the voluminous petition and the equally voluminous responses of the public and private respondents, the Court finds that the Court of Appeals did not abuse its discretion in stopping Judge Cañares and MALAYAN from interfering with the prosecution of the Mandaue reclamation project by respondents F.F. Cruz &. Co., Inc. and its associates, the Cebu Contractors Association, Mandaue Realty Resources Corporation and Philippine Orion Properties, Inc.

In the first place, as explained in the Appellate Court's resolution, the contract between the City of Mandaue and F.F. Cruz & Co., Inc., et al. "had been approved by the Office of the President," while the reclamation contract with MALAYAN "was disapproved" (pp. 1236-1237, Rollo, Vol. II).

. . . the Mandaue Reclamation Project, subject of the contract between the Mandaue local government and private petitioners, has been approved by the Office of the President of the Philippines (Annex "M" of the Petition). In the same official document, the "Contract Reclamation and Development" entered into by and between the City of Mandaue and respondent Malayan Integrated Industrial Corporation on December 12, 1977 was disapproved. And

pursuant to the approved reclamation project and the contract entered into by and between them, petitioners undertook the reclamation of foreshore and submerged lands from the Cabahug Causway in Mandaue City towards the boundary with Cebu City. In the course thereof at least a total of 23.4710 hectares of said lands have been reclaimed by private petitioners after spending the sum of P181,476,690.59 as of December 31, 1990. (Emphasis supplied.)

Secondly, Judge Cañares' writ of preliminary prohibitory injunction, halting the prosecution of the Mandaue reclamation project, violated P.D. No. 1818 which prohibits courts from issuing such writ to stop any person, entity, or government official, from proceeding with or continuing the execution or implementation of an infrastructure project, such as the reclamation of foreshore and submerged lands along the coast of Mandaue City up to the Cebu City boundary for the purpose of developing the reclaimed area into an industrial and trading center with a modern harbor and port facilities for both domestic and international commerce. P.D. No. 1818 provides:

P.D. 1818 –– Prohibiting courts from issuing restraining orders or preliminary injunctions in cases involving infrastructure and natural resource development projects of, and public utilities operated by, the Government.

WHEREAS, Presidential Decree No. 605 prohibits the issuance by the courts of restraining orders or injunctions in cases involving concessions, licences, and other permits issued by administrative officials or bodies for the exploitation, development and utilization of natural resources of the country;

WHEREAS, it is in the public interest to adopt a similar prohibition against the issuance of such restraining orders or

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injunctions in other areas of activity equally critical to the economic development effort of the nation, in order not to disrupt or hamper the pursuit of essential government projects;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby decree and order as follows:

Sec. 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

The Court of Appeals further observed that "in the balance of inconveniences the petitioners appear to stand to suffer grave and irreparable injury, and much more damages than MIIC (MALAYAN) which has not done any reclamation works on the area subject of the dispute."(p.1239, Rollo, Vol. II.)

Although the letter to the PEA advising it of the approval of the reclamation contract between the City of Mandaue and F.F. Cruz & Co., Inc. and the disapproval of the earlier agreement between the City of Mandaue and MALAYAN, was signed by the Executive Secretary, "by authority of the President," and not by the President's own hand, the Executive Secretary's action is presumed to be valid and to

have been regularly performed in behalf of the President (Section 2[m], Rule 131, Revised Rules on Evidence) and thus should be accorded due respect (Lacson-Magallanes vs. Paño, 129 Phil. 123; GSIS vs. CIR, December 30, 1961; Soriano vs. Ancheta, March 18, 1985; Rogue vs. Director of Lands, July 1, 1976). As head of the Executive Office, the Executive Secretary, is an alter ego of the President (Sec. 22, Chap. 8, Title II, Book II, 1987 E.O. 292, Adm. Code of 1987). One of his myriad functions is "to exercise primary authority to sign papers "By authority of the President," attest executive orders and other presidential issuances unless attestation is specifically delegated to other officials by him or by the President; assist the President in the administration of special projects; and perform such other functions as the President may direct" (Sec. 22, subpars. 10, 14 and 18, Ibid). Paraphrasing Villena vs. Secretary of the Interior, 67 Phils. 451, his personality is in reality "but the projection of that of the President," his acts, "performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive." The approval by the Office of the President of the reclamation contract in favor of F.F. Cruz & Co., Inc. and the rejection of the contract with MALAYAN, is not subject to review by the courts in view of the principle of separation of powers which accords co-equal status to the three great branches of the government, absent any showing that the President, in doing so, acted with grave abuse of discretion amounting to lack or excess of jurisdiction (Sec. 1, Art. VIII, 1987 Constitution). Only on that ground may this Court justifiably intervene in a transaction that otherwise would be the exclusive preserve of the Chief Executive.

In fact, while MALAYAN has asked the courts to nullify the reclamation contract between the City of Mandaue and F.F. Cruz & Co., Inc., it did not assail the Office of the President for having approved it. Its petition for prohibitory and

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mandatory injunction in the Regional Trial Court of Cebu City (CEB-9658), did not implead, as respondents, nor charge with grave abuse of discretion, the President of the Philippines, Executive Secretary Catalino Macaraig, Jr., Deputy Executive Secretary Magdangal Elma, Jr., and PEA General Manager Eduardo Zialcita, for having approved or recommended the approval, by the President, of the said reclamation contract with F.F. Cruz & Co., Inc. and the disapproval of the prior agreement between the City of Mandaue and MALAYAN.

WHEREFORE, finding no grave abuse of discretion in the assailed resolution dated August 28, 1991 of the Court of Appeals in CA-G.R. SP No. 25621, the petition for certiorari and prohibition is DENIED for lack of merit. Costs against the petitioner.

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G.R. No. L-21607 January 30, 1970

RAFAEL MACAILING, SILVESTRE MACAILING DOMINICO NECESITO and RAFAEL NECESITO, plaintiffs-appellees,vs.TOMAS ANDRADA, MARIA ANDRADA, FEDERICO ANDRADA, FLORENCIA VDA. DE ANDRADA, Jesus ANDRADA, ANDREA R. GAURANA (HEIRS OF SALVADOR ANDRADA) and ASSISTANT EXECUTIVE SECRETARY ENRIQUE C. QUEMA (in behalf of the President), defendants-appellants.

Clemente M. Aliño for plaintiffs-appellees.

Melquiades S. Sucaldito for defendants-appellants.

Office of the Solicitor General for nominal party only.

SANCHEZ, J.:

In this appeal from a judgment of the Court of First Instance of Cotabato ruling that defendant heirs of Salvador Andrada have lost their right to appeal from a decision of the Secretary of Agriculture and Natural Resources1 and that, accordingly, defendant Executive Secretary, in behalf of the President, may no longer review such decision, we have for factual backdrop the following:

A dispute over four (4) parcels of land in Lebak, Cotabato, arose between plaintiffs, settlers thereon occupying four hectares each, and Salvador Andrada (later substituted by his heirs), sales applicant of a bigger parcel, which includes the lands occupied by plaintiffs. The District Land Officer of

Cotabato decided in plaintiffs' favor, excluded the four parcels of land claimed by plaintiffs. The Director of Lands, however, reversed, declared that the portions adjudged to the four plaintiffs "shall be restored to the heirs (of Salvador Andrada) who should include them proportionately in the new application to be filed by them respectively."

Appeal having been taken to the Secretary of Agriculture and Natural Resources, the latter, on October 27, 1956, in turn reversed the Director of Lands by awarding to plaintiffs the lands they claimed. Defendants sought reconsideration. On May 30, 1957, the Secretary denied. Defendants moved once more to reconsider. On September 12, 1957, the Secretary rejected the reconsideration, ruled that his judgment in the case "had long become final and executory," and said: "Upon a review of the records, we found that the decision sought to be reconsidered in the present motion had long become final and executory. Consequently, this Office has no more jurisdiction to entertain the said motion." The Secretary categorically stated that the case was "considered a closed matter insofar as this Office is concerned." Defendants received copy of this denial on October 14, 1957.

On October 23, 1957, defendants appealed to the Office of the President.

On August 20, 1959, in a letter-decision, Assistant Executive Secretary Enrique C. Quema, "[b]y authority of the President reversed the decision of the Secretary and declared that the lands involved "should be restored to the heirs of Andrada to be included in their individual applications."

Plaintiffs, on December 23, 1959, started the present suit in the Cotabato court. They raised the issue of finality of the decision of the Secretary.

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On January 21, 1963, upon a stipulation of facts entered into by the parties, the court rendered judgment, viz:

WHEREFORE, the Court hereby declares the decision of the Secretary of Agriculture and Natural Resources, dated October 27, 1956, marked as Exhibit "G" of the STIPULATION OF FACTS valid, final and executory, and is hereby given due course and effect. A copy of said Exhibit "G" of the STIPULATION OF FACTS is hereby attached and appended as part and parcel of this decision, as Annex "A" thereof.

The decision signed by Assistant Executive Secretary Enrique C. Quema by authority of the President dated August 20, 1959, marked as Exhibit "L" of the Stipulation of Facts is hereby declared null and void and without any effect.

The Court refrains from making any special pronouncement as to costs.

Defendants appealed direct to this Court.

1. Defendants take the view that plaintiffs' remedy is certiorari, not an ordinary civil action before the Court of First Instance. They aver that since plaintiffs did not avail of the proper remedy, the action should be dismissed.

In the matter of judicial review of administrative decisions, some statutes especially provide for such judicial review; others are silent. Mere silence, however, does not necessarily imply that judicial review is unavailable. Modes of judicial review vary according to the statutes; appeal, petition for review or a writ of certiorari. No general rule applies to all the various administrative agencies. Where the law stands mute, the accepted view is that the extraordinary remedies in the Rules of Court are still available.2

Deducible from the foregoing is that where administrative agencies have original jurisdiction in the premises, the court's interference with administrative action is necessarily limited. A review thereof cannot be done through an ordinary civil action if constitutional or legislative authority therefor is wanting. The remedies that can be availed of where the statute is silent, as in the present case, are the special civil actions for certiorari, prohibition and/or mandamus specified in the Rules of Court. In this case, therefore, we have no alternative but to hold that the plaintiffs' appropriate remedy is certiorari, not an ordinary civil action.

Certiorari appears to be the real course of action here taken by plaintiffs. While the petition by itself does not conform to the formal requirements, the allegations thereof show that plaintiffs charge defendant Assistant Executive Secretary with grave abuse of discretion in upholding defendants' appeal "in desecration of a solemn decision" of the Secretary of Agriculture and Natural Resources "that had already become 'final and executory'." No necessity there was for plaintiffs to aver that there was no plain, speedy or adequate remedy in the ordinary course of law. This can be clearly read from the factual narration in the complaint. After all, the case has already reached the administrativepeak — the Office of the President has already acted thereon. The fact that the petition was not verified may be excused. The case presented was one which shaped out a question of law. There were no facts that really needed confirmation under oath. In fact, no trial was conducted by the court below. Absence of verification here is not fatally defective.3

Thus it is, that plaintiffs' case, as we see it, is the special civil action of certiorari.

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2. The next question is whether or not the Court of First Instance of Cotabato has jurisdiction to issue a writ of certiorari in this case, considering that defendant Assistant Executive Secretary holds office in Manila outside the territorial boundaries of said court.

The pertinent statutory provision, Section 44 (h) of the Judiciary Act of 1948, reads: "Courts of First Instance shall have original jurisdiction ... (h) Said court and their judges, or any of them, shall have the power to issue writ of injunction, mandamus, certiorari, prohibition, quo warranto and habeas corpus in their respective provinces and district in the manner provided in the Rules of Court." Complementary thereto is Section 4, Rule 65, Rules of Court,4 providing that: "The petition may be filed ... if it relates to the acts or omissions of an inferior court, or of a corporation, board, officer or person, in a Court of First instance having jurisdiction thereof."

As early as Castaño vs. Lobingier, 7 Phil. 91, 93-94, under previous legislation similar to Section 44(h) aforequoted, this Court has held that the writs of injunction and certiorari cannot be issued by the Court of First Instance of Leyte against the Justice of the Peace of Manila, who is outside the territorial boundaries of the issuing court. In Acosta vs. Alvendia, L-14598, October 31, 1960, the Court of First Instance of Manila issued a writ of preliminary injunction against the provincial sheriff of Nueva Ecija restraining the latter from executing the judgment rendered in a tenancy case by the Court of Agrarian Relations in Nueva Ecija. Upon Section 44 (h) and Section 2, Rule 58,5 this Court nullified the injunctive writ because "the jurisdiction or authority of courts of first instance to control or restrain acts by means of the writ of injunction is limited to acts which are being committed or about to be committed within the territorial boundaries of their respective provinces and districts."

Illuminating is Samar Mining Co., Inc. vs. Arnado, L-17109, June 30, 1961, 2 SCRA 782, 786. in that case, a petition for certiorari and prohibition with preliminary injunction was filed in the Court of First Instance of Manila against the Regional Administrator and Labor Attorney of the Department of Labor assigned to Cebu City, to review the latter's acts in a workmen's compensation case. The case was dismissed below upon the ground of wrong venue. This Court affirmed. Speaking through then Associate, now Chief, Justice Roberto Concepcion, we pronounced that the ordinary rules of venue in Rule 4 do not apply; the Section 4, Rule 65, heretofore transcribed, contemplates of venue, not jurisdiction, although it makes the former co-terminous with or dependent upon, the latter; that the jurisdiction therein alluded to is that over "the corporation, board, officer, or person" whose acts are in question, not jurisdiction over the subject matter of the case; and that the rule-making power of this Court is limited to matters of pleading, practice and procedure and the admission to the practice of law, whereas the power to define, prescribe and apportion the jurisdiction of the various courts is within the exclusive province of Congress (Section 2, Article VIII, Constitution). We there concluded that the issuance of the writs prayed for over persons outside the territorial boundaries of the courts of first instance is denied said courts by the Judiciary Act of 1948.

In Hacbang vs. The Leyte Autobus Co., Inc., L-17907, May 30, 1963, 8 SCRA 103, injunctive relief was sought in the Court of First Instance of Cebu to restrain the sheriff of Leyte from proceeding with the sale of a passenger bus upon a writ of execution of a judgment rendered by the Leyte court. It was held that the Cebu court acted in excess of its jurisdiction.

In Alhambra Cigar and Cigarette Mfg. Co., Inc. vs. National Administrator of Regional Office No. 2, L-20491, August 31,

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1965, 14 SCRA 1019, a petition for certiorari and prohibition was lodged in the Court of First Instance of Manila against the Hearing Officer and Regional Administrator of the Department of Labor in Tuguegarao, Cagayan, in connection with a workmen's compensation case. We held that the Manila court was without power to issue the writs of certiorari and prohibition, relying upon the authority of Samar Mining, and was bereft of authority to issue a writ of injunction, citing Acosta.

In People vs. Mencias, L-19633, November 28, 1966, 18 SCRA 807, the Court of First Instance of Rizal enjoined the Manila fiscals, amongst others, from proceeding with the preliminary investigation of a criminal complaint. This Court declared the Rizal court to be devoid of authority to so enjoin in line with Alhambra. Then in 1967, the case of Santos vs. Moreno, L-15829, December 4, 1967, 21 SCRA 1141, 1152, affirmed Castaño vs. Lobingier, supra. This was followed by Cudiamat vs. Torres L-24225, February 22, 1968, 22 SCRA 695, 698. There, preliminary injunction emanated from the Court of First Instance of Rizal restraining the implementation of an award on a Public bidding for the supply of a police call and signal box system for Manila. Enjoined were the members of the on awards of Manila and the winner of the bid. This Court, thru Mr. Justice J.B.L. Reyes, ruled that: "The Preliminary injunction that may be granted by a court of first instance under said Section 2 [Rule 58] is, in its application, co-extensive with the territorial boundaries of the province or district in which the said court sits." This doctrine was reiterated in NAWASA vs. Reyes, L-28597, February 29, 1968, 22 SCRA 905, where the Court of First Instance of Rizal enjoined NAWASA with its offices in Manila from proceeding with a particular bidding to be conducted in that city.

3. Worth remembering, of course, is that in the foregoing jurisprudence, injunctive or prohibitory writs are involved.

Where the sole issue in court, however, is the legality of the decision of administrative officials, a different rule obtains.

Instructive on this point is Gayacao vs. Executive Secretary, L-21066, April 30, 1965, 13 SCRA 753, 756-757. There, plaintiff Gayacao instituted proceedings for certiorari and mandamus in the Court of First Instance of Basilan City against the Executive Secretary, the Secretary of Agriculture and Natural Resources, the Director of Lands, and a private respondent. Gayacao sought nullification of the decision of the Director of Lands, and the affirmatory decisions of the Secretary of Agriculture and Natural Resources and the Executive Secretary, for being contrary to law. Respondent officials moved to dismiss. They averred that the Basilan court had no jurisdiction to issue writs of certiorari or mandamus against them because the administrative orders and decisions complained of were promulgated by officers holding office outside the court's territorial jurisdiction. They invoked Section 44(h) of the Judiciary Act of 1948 and Castaño vs. Lobingier, supra, Acosta vs. Alvendia, supra, and Samar Mining Co., Inc. vs. Arnado, supra. The lower court dismissed the case. Gayacao appealed. We reversed. This Court, speaking thru Mr. Justice J.B.L. Reyes, pronounced that: "The doctrines invoked in support of the theory of non-jurisdiction (Castaño vs. Lobingier, 7 Phil 91; Acosta vs. Alvendia, L-14598, Oct. 31, 1960; Samar Mining vs. Arnado, L-17109, June 30, 1961) are inapplicable, in that those cases involved petitions for writs of injunction seeking to control the actions of courts or officers outside the territorial jurisdiction of the respondent courts involved. Here the sole point in issue is whether the decision of the respondent public officers was legally correct or not, and, without going into the merits of the case, we see no cogent reason why this power of judicial review should be confined to the courts of first instance of the locality where the offices of respondents are maintained, to the exclusion of the courts of first instance in those localities where the plaintiffs reside,

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and where the questioned decisions are being enforced." We there emphasized that: "It is easy to see that if the contested ruling of the court below is sustained the same would result not only in hardship to litigants of limited means, practically amounting to denial of access to the courts, but would also unnecessarily encumber the Manila courts whose dockets are already overburdened. Actually, since Ortua vs. Singson, 59 Phil. 440, the power of provincial courts of first instance to review administrative decisions of national officials, has been consistently recognized."

Palanan Lumber & Plywood Co., Inc. vs. Arranz, L-27106, March 20, 1968, 22 SCRA 1186, then drew the line between the precept enunciated in Gayacao and previous case law. This Court, again speaking thru Mr. Justice J.B.L. Reyes, there said that "the ruling in Gayacao vs. Executive Secretary, L-21066, April 30, 1965, has not varied the rule, at least in so far as prohibitory writs are concerned. The Gayacao case conceded the power of the provincial Court of First Instance to take cognizance of cases involving judicial review of administrative decisions, where the sole issue before the Court, is 'whether the decision of respondent public officials was legally correct or not'; but it clearly reaffirmed the non-jurisdiction rulings previously cited where writs of injunction are issued or sought in order to control acts of non-resident officials."6

In Palanan, which concerned a petition for certiorari and prohibition filed in the Court of First Instance of Isabela against, amongst others, the Director of Forestry, the Secretary of Agriculture and Natural Resources and the Executive Secretary, it was thus ruled that: "Since the petition before the respondent Court of First Instance of Isabela not only questioned the legal correctness of the decision of the Office of the President, in splitting the forest concession between both contending logging companies, but also sought to enjoin enforcement of that decision, it is

evident that even under the Gayacao ruling, the respondent Court could not validly issue the writ of injunction complained of when the officials sought to be restrained were not stationed within its territory."7

Clearly then does the Gayacao case hold sway in the controversy before us.

Indeed, numerous are the cases where courts of first instance of provinces have rightly assumed jurisdiction over petitions to review acts of the Director of Lands and the Secretary of Agriculture and Natural Resources, both of whom may be found in Manila. For instance, in the 1949 case of Alejo vs. Garchitorena, 83 Phil. 924, 928, this Court impliedly upheld the power of the Court of First Instance of Nueva Ecija to review land decisions of the Director of Lands and the Secretary of Agriculture and Natural Resources.

But more to the point here is the recent case of Desiata vs. Executive Secretary,L-21894, February 28, 1967, 19 SCRA 487, where we affirmed the decision of the Court of First Instance of Agusan nullifying the decision of the Executive Secretary, acting for and in behalf of the President, rendered on appeal from the decision of the Secretary of Agriculture and Natural Resources.

We hold that the Cotabato court has jurisdiction.

4. We now go to the merits of the appeal. Plaintiffs' position is that defendants' appeal to the President was time-barred. The trial court sustained. The provisions of Lands Administrative Order No. 6 are thus brought to the fore. Section 12 thereof provides:

12. Finality of decision promulgated by the Secretary.—The decision of the Secretary of Agriculture and Commerce (now

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Agriculture and Natural Resources) or the Under Secretary on an appealed case shall become final, unless otherwise specifically stated therein, after the lapse of thirty (30) days from the date of its receipt by the interested parties.

Section 13 following reads:

13. No reconsideration of final decision or order.—After a decision or order of the Secretary of Agriculture and [Natural Resources], the Under Secretary or the Director of Lands has become final, no motion or petition for reconsideration of such decision or reinvestigation of the case shall be entertained by the Secretary of Agriculture and [Natural Resources] the Under Secretary or the Director of Lands, as the case may be, except as provided in Section 14 hereof.

And Section 14 is to this effect: "Upon such terms as may be considered just, the Secretary of Agriculture and [Natural Resources], the Under Secretary or the Director of Lands may relieve a party or his legal representative from a decision, order, or other proceeding taken against him through his mistake, inadvertence, surprise, default or excusable neglect: Provided, That application therefor be made within a reasonable time but in no case exceeding one (1) year after such decision, order or proceeding was taken."

Defendants do not dispute plaintiffs' averment that they (defendants) did not move to reconsider or appeal from the Secretary's decision of October 27, 1956 — within 30 days from their receipt thereof. Indeed, they attempted to appeal only on October 23, 1957. They merely contend that their appeal was but 9 days after October 14, 1957, the date defendants received the September 12, 1957 ruling of the Secretary denying their second motion for reconsideration. That ruling, it must be remembered, drew attention to the fact that the Secretary's decision "had long become final and executory." By reason of which, declaration was made

that "this (Secretary's) Office had no more jurisdiction to entertain the said motion."

It is the thesis of defendants that the power of review on appeal is inherent in the President; that the Constitution fixes no period for such appeal, and that, therefore, appeal can be entertained by the President even outside the 30-day period provided in Section 12, Lands Administrative Order No. 6.

Controlling in this case is Desiata vs. Executive Secretary, supra. Desiata was also a public lands case originating from the Bureau of Lands and appealed to the Secretary of Agriculture and Natural Resources. After the decision of the Secretary, the case was taken to the Office of the President outside the 30-day period mentioned in Section 12 of Lands Administrative Order No. 6 afore-quoted. The Executive Secretary revoked the decision of the Secretary of Agriculture and Natural Resources. Whereupon, the aggrieved party went to the Court of First Instance of Agusan on a special civil action for certiorari and prohibition. The Agusan court and this Court on appeal both held that there was grave abuse of discretion on the part of the Executive Secretary in entertaining the appeal from a decision of the Secretary of Agriculture and Natural Resources which has become final; and, therefore, the decision of the Executive Secretary was null and void. This Court stressed in clear terms that — "The decision having become final, the Executive Secretary had no more power to review it ... .8

Argument has been made in Desiata "that Administrative Order No. 6 itself recognized certain exceptions wherein decisions of the Secretary of Agriculture do not become final even after 30 days, particularly citing Section 14 thereof." Nonetheless, this Court pronounced: "But this proviso is unavailing to him because he does not contend that in his

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case there obtains any of the recognized exceptions to finality listed thereunder, to wit: mistake, inadvertence, default or excusable negligence."9

We find no reason to retreat from the foregoing precepts enunciated by this Court in Desiata. Indeed, it is not contended that Lands Administrative Order No. 6 does not have the force and effect of law. Nor can it be, with success. In administrative law, an administrative regulation adopted pursuant to law, is law. Administratively speaking then, 30 days after receipt by the interested parties, the decision of the Secretary of Agriculture and Natural Resources becomes final, except in cases of mistakes, inadvertence, surprise, default or excusable neglect. In which case, the Secretary may relieve a party of a decision, order or other proceeding taken against him upon application made within a reasonable time but in no case exceeding one (1) year after such decision, order or proceeding was taken. Defendants do not come within the exception just noted.

The executive power itself has laid down the rules for the parties in administrative conflicts to follow. To be borne in mind is that a Department Secretary is the alter ego of the President. We must assume then that an administrative rule laid down by a Department Secretary is, to all intents and purposes, that of the President, unless countermanded by the latter. It is illogical, unreasonable and unfair for the executive branch of the government itself to set aside administrative rules — unless previously changed beforehand — in a specific case for the convenience of one of the parties thereof. Closed proceedings should remain closed; vested rights should not be unsettled. A contrary view would, as correctly pointed out by plaintiffs, throw the rule of law to the winds.

In Antique Sawmills, Inc. vs. Zayco, L-20051, May 30, 1966, 17 SCRA 316, 320 321, we find the following pertinent

passage:

The appellees' view that the period fixed in Administrative Order No. 6-2 of the Director of Forestry cannot bind the Office of the President since the latter has supervision and control over the former cannot commend itself to sound Public policy. Even administrative decisions must end sometime, as fully as public policy demands that finality be written on judicial controversies (Manila Electric Co. vs. Public Service Commission, 61 Phil. 456).

In other words, public interest requires that proceedings already terminated should not be altered at every step. The rule of non quieta movere prescribes that what was already terminated should not be disturbed (Espiritu vs. San Miguel Brewery, 63 Phil. 615). 10 We do not doubt that even the Office of the President subscribes to the above rule. As aptly remarked by Justice Malcolm in Dy Cay vs. Crossfield & O'Brien, 38 Phil. 527:

Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. The very object for which courts were instituted was to put an end to controversy. To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. ...

Indeed, "[t]he rule which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of public, executive, or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers. 11

We, accordingly, hold that the August 20, 1959 letter decision of the Assistant Executive Secretary "by authority

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of the President" reversing the decision of the Secretary of Agriculture and Natural Resources in this case is null and void and of no force and effect.

For the reasons given, the lower court's decision (labeled Order) of January 31, 1963 appealed from is hereby affirmed. No costs allowed. So ordered.

G.R. No. 127249 February 27, 1998

CAMARINES NOTE ELECTRIC COOPERATIVE, INC. (CANORECO); RUBEN, N. BARRAMEDA; ELVIS L. ESPIRITU; MERARDO G. ENERO, JR.; MERCELITO B. ABAS; and REYNALDO V. ABUNDO, petitioners,vs.HON. RUBEN D. TORRES, in his capacity as Executive Secretary; REX TANTIONGCO; HONESTO DE JESUS; ANDRES

IBASCO; TEODULO M. MEA; and VICENTE LUKBAN, respondents.

DAVIDE, JR., J.:

May the Office of the President validly constitute an ad hoc committee to take over and manage the affairs of an electric cooperative?

This is the key issue in this original action for certiorari and prohibition under Rule 65 of the Rules of Court wherein the petitioners seek to (a) annul and set aside Memorandum Order No. 409 of the Office of the President dated 3 December 1996 constituting an Ad Hoc Committee to take over and manage the affairs of the Camarines Norte Electric Cooperative, Inc., (hereafter CANORECO) "until such time as a general membership meeting can be called to decide the serious issues affecting the said cooperative and normalcy in operations is restored"; and (b) prohibit the respondents from performing acts or continuing proceedings pursuant to the Memorandum Order.

The factual backdrop of this case is not complicated.

Petitioner CANORECO is an electric cooperative organized under the provisions of P.D. No. 269, otherwise known as the National Electrification Administration Decree, as amended by P.D. No. 1645.

On 10 March 1990, then President Corazon C. Aquino signed into law R.A. No. 6938 and R.A. No. 6939. The former is the Cooperative Code of the Philippines, while the latter created the Cooperative Development Authority (CDA) and vested solely upon the CDA the power to register cooperatives.

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Article 122 of the Cooperative Code expressly provides that electric cooperatives shall be covered by the Code. Article 128 of the said Code and Section 17 of R.A. No. 6939 similarly provide that cooperatives created under P.D. No. 269, as amended by P.D. No. 1645, shall have three years within which to qualify and register with the CDA and that after they shall have so qualified and registered, the provisions of Sections 3 and 5 of P.D. No. 1645 shall no longer be applicable to them. These Sections 3 and 5 read as follows:

Sec. 3. Section 5(a), Chapter II of Presidential Decree No. 269 is hereby amended by adding sub-paragraph (6) to read as follows:

(6) To authorize the NEA Administrator to designate, subject to the confirmation of the Board Administrators, an Acting General Manager and/or Project Supervisor for a Cooperative where vacancies in the said positions occur and/or when the interest of the Cooperative and the program so requires, and to prescribe the functions of said Acting General Manager and/or Project Supervisor, which powers shall not be nullified, altered or diminished by any policy or resolution of the Board of Directors of the Cooperative concerned.

xxx xxx xxx

Sec. 5. Section 10, Chapter II of Presidential Decree No. 269 is hereby amended to read as follows:

Sec. 10. Enforcement Powers and Remedies. — In the exercise of its power of supervision and control over electric cooperatives and other borrower, supervised or controlled entities, the NEA is empowered to issue orders, rules and regulations and motu proprio or upon petition of third parties, to conduct investigations, referenda and other

similar actions in all matters affecting said electric cooperatives and other borrower, or supervised or controlled entities.

xxx xxx xxx

Finally, the repealing clause (Article 127) of the Cooperative Code provides:

Provided, however, That nothing in this Code shall be interpreted to mean the amendment or repeal of any provision of Presidential Decree No. 269: Provided, further, That the electric cooperatives which qualify as such under this Code shall fall under the coverage thereof.

CANORECO registered with the CDA pursuant to R.A. No. 6938 and R.A. No. 6939. On 8 March 1993, the CDA issued a Certificate of Provisional Registration (T-003-93) to CANORECO effective for two years. 1 On 1 March 1995, the CDA extended this provisional registration until 4 May 1997. 2 However, on 10 July 1996, CANORECO filed with the CDA its approved amendments to its Articles of Cooperation converting itself from a non-stock to a stock cooperative pursuant to the provisions of R.A. No. 6938 and the Omnibus Implementing Rules and Regulations on Electric Cooperatives. On the same date the CDA issued a Certificate of Registrations 3 of the amendments to CANORECO Articles of Cooperation certifying that CANORECO is "registered as a full-[f]ledged cooperative under and by virtue of R.A. 6938."

Previously, on 11 March 1995, the Board of Directors of CANORECO 4 approved Resolution No. 22 appointing petitioner Reynaldo V. Abundo as permanent General Manager. The Board was composed of

Ruben N. Barrameda — President

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Elvis L. Espiritu — Vice president

Merardo G. Enero, Jr. — Secretary

Marcelito B. Abas — Treasurer

Antonio R. Obias — Director

Luis A. Pascua — Director

Norberto Z. Ochoa — Director

Leonida Z. Manalo — OIC GM/Ex-Officio

On 28 May 1995, Antonio Obias, Norberto Ochoa, Luis Pascua, and Felicito Ilan held a special meeting of the Board of Directors of CANORECO. The minutes of the meeting 5 showed that President Ruben Barrameda, Vice-President Elvis Espiritu, and Treasurer Marcelito Abas were absent; that Obias acted as temporary chairman; that the latter informed those present that it was the responsibility of the Board after the annual meeting to meet and elect the new set of officers, but that despite the fact that he had called the attention of President Barrameda and Directors Abas and Espiritu for the holding thereof, the three chose not to appear; and that those present in the special meeting declared all positions in the board vacant and thereafter proceeded to hold elections by secret balloting with all the directors present considered candidates for the positions. The following won and were declared as the newly elected officers of the CANORECO:

President Norberto Ochoa

Vice President Antonio Obias

Secretary Felicito Ilan

Treasurer Luis Pascua

Thereupon, these newly elected officers approved the following resolutions:

1) Resolution No. 27, c.s. — confirming the election of the new set of officers of the Board of Directors of CANORECO

2) Resolution No. 28, c.s. — recalling Resolution No. 22, c.s. appointing Mr. Reynaldo V. Abundo as permanent General Manager in view of the fact that such appointment was in violation of the provisions of R.A. 6713; declaring the position of General Manager as vacant; and designating Mr. Oscar Acobera as Officer-in-Charge

3) Resolution No. 29, c.s. — authorizing the Board President, or in his absence, the Vice-President, countersigned by the Treasurer, or in his absence, the Secretary, to be the only officers who can transfer funds from savings to current accounts; and authorizing the Officer-in-Charge, Mr. Acobera, to issue checks without countersignature in an amount not to exceed P3,000.00 and in excess thereof, to be countersigned by the President and/or the Treasurer

4) Resolution No. 30, c.s. — hiring the services of Atty. Juanito Subia as retainer-lawyer for CANORECO. 6

The petitioners challenged the above resolutions and the election of officers by filing with the CDA a Petition for Declaration of Nullity of Board Resolutions and Election of Officers with Prayer for Issuance of Injunction/Temporary Restraining Order, which the CDA docketed CDA-CO Case No. 95-010.

In its Resolution of 15 February 1996, 7 the CDA resolved the petition in favor of the petitioners and decreed as

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follows:

WHEREFORE, premises considered, the Board Meeting of May 28, 1995, participated by the respondents, and all the Resolutions issued on such occasion, are hereby declared NULL AND VOID AB INITIO.

Likewise, the election of respondents Norberto Ochoa, Antonio Obias, Felicito Ilan, and Luis Pascua, as President, Vice-President, Secretary, and Treasurer, respectively, of CANORECO is hereby declared NULL AND VOID AB INITIO.

Hence, respondents Norberto Ochoa, Antonio Obias, Felicito Ilan, and Luis Pascua are hereby ordered to refrain from representing themselves as President, Vice-President, Secretary, and Treasurer, respectively, of CANORECO. The same respondents are further ordered to refrain from acting as authorized signatories to the bank accounts of CANORECO.

Further respondent Felicito Ilan is hereby ordered to refrain from exercising the duties and functions of a member of the Board of CANORECO until the election protest is resolved with finality by the proper forum. In the meantime, the incumbency of petitioner Merardo Enero, Jr. as Director of the CANORECO Board is hereby recognized.

A status quo is hereby ordered as regards the position of General Manager, being held by Mr. Reynaldo Abundo, considering that the recall of his appointment was done under a void Resolution, and that the designation of Mr. Oscar Acodera as Officer-in-Charge, under the same void Resolution, has no force and effect.

Finally, respondents Antonio Obias, Norberto Ochoa, Luisito Pascua, and petitioners Ruben Barrameda, Elvis Espiritu, Marcelito Abas and Merardo Enero, Jr. are hereby ordered to

work together, as Board of Directors, for the common good of CANORECO and its consumer-members, and to maintain an atmosphere of sincere cooperation among the officers and members of CANORECO.

On 28 June 1996, in defiance of the abovementioned Resolution of the CDA and with the active participation of some officials of the National Electrification Administration (NEA), the group of Norberto Ochoa, Antonio Obias, Felicito Ilan, and Luis Pascua forcibly took possession of the offices of CANORECO and assumed the duties as officers thereof. 8

On 26 September 1996, pursuant to the writ of execution and order to vacate issued by the CDA, the petitioners were able to reassume control of the CANORECO and to perform their respective functions. 9

On 3 December 1996, the President of the Philippines issued Memorandum Order No. 409 10 constituting an Ad Hoc Committee to temporarily take over and manage the affairs of CANORECO. It reads as follows:

To efficiently and effectively address the worsening problem of the Camarines Norte Electric Cooperative, Inc. (CANORECO) and in order not to prejudice and endanger the interest of the people who rely on the said cooperative for their supply of electricity, an AD HOC Committee is hereby constituted to take over and manage the affairs of CANORECO until such time as a general membership meeting can be called to decide the serious issues affecting the said cooperative and normalcy in operations is restored. Further, if and when warranted, the present Board of Directors may be called upon by the Committee for advisory services without prejudice to the receipt of their per diems as may be authorized by existing rules and regulations.

The AD HOC Committee shall be composed of the following:

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REX TANTIONGCO — Chairman

Presidential Assistant on Energy Affairs

HONESTO DE JESUS — Member

Cooperative Development Authority Nominee

ANDRES IBASCO — Member

Cooperative Development Authority Nominee

TEODULO M. MEA — Member

National Electrification Administration Nominee

VICENTE LUKBAN — Member

National Electrification Administration Nominee

The said Committee shall have the following functions:

1. Designate the following upon the recommendation of the Chairman:

1.1 an Acting General Manager who shall handle the day-to-day operations of the Cooperative. In the meantime, the General Manager shall be deemed to be on leave without prejudice to the payment of his salaries legally due him; and

1.2 a Comptroller who shall handle the financial affairs of the Cooperative.

2. Ensure that:

xxx xxx xxx

The AD HOC Committee shall submit a written report to the President, through the Office of the Executive Secretary, every two (2) weeks from the effectivity of this Order.

A General Membership Meeting shall be called by the AD HOC Committee to determine whether or not there is a need to change the composition of the membership of the Cooperative's Board of Directors. If the need exists, the AD HOC Committee shall call for elections. Once composition of the Board of Directors is finally settled, it shall decide on the appointment of a General Manager in accordance with prescribed laws, rules and regulations. Upon the appointment of a General Manager, the Committee shall become functus officio.

This Memorandum Order shall take effect immediately.

On 11 December 1996, the petitioners filed this petition wherein they claim that

I. THE PRESIDENT HAS NO POWER TO TAKE OVER AND MANAGE OR TO ORDER THE TAKE-OVER OR MANAGEMENT OF CANORECO.

II. [THE] TAKE-OVER OF CANORECO BY THE AD HOC COMMITTEE IS UNLAWFUL DESPITE DESIGNATION OF CANORECO CONSUMERS AS MEMBERS OF AD HOC COMMITTEE.

III. [THE] RELEGATION OF PETITIONERS AS MERE ADVISERS TO THE AD HOC COMMITTEE AMOUNTS TO REMOVAL FROM OFFICE WHICH THE PRESIDENT HAS NO POWER TO DO. MOREOVER, PETITIONERS' REMOVAL VIOLATES PETITIONERS' RIGHT TO DUE PROCESS OF LAW.

IV. THE PRESIDENT IS LIKEWISE WITHOUT POWER TO

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DESIGNATE OR ORDER THE DESIGNATION OF AN ACTING GENERAL MANAGER FOR CANORECO AND TO CONSIDER THE INCUMBENT REYNALDO V. ABUNDO TO BE ON LEAVE.

The petitioners assert that there is no provision in the Constitution or in a statute expressly, or even impliedly, authorizing the President or his representatives to lake over or order the take-over of electric cooperatives. Although conceding that while the State, through its police power, has the right to interfere with private business or commerce, they maintain that the exercise thereof is generally limited to the regulation of the business or commerce and that the power to regulate does not include the power to take over, control, manage, or direct the operation of the business. Accordingly, the creation of the Ad Hoc Committee for the purpose of take-over was illegal and void.

The petitioners further claim that Memorandum Order No. 409 removed them from their positions as members of the Board of Directors of CANORECO. The President does not have the authority to appoint, much less to remove, members of the board of directors of a private enterprise including electric cooperatives. He cannot rely on his power of supervision over the NEA to justify the designation of an acting general manager for CANORECO under P.D. No. 269 as amended by P.D. No. 1645, for CANORECO had already registered with the CDA pursuant to R.A. 6938 and R.A. No. 6939; hence, the latter laws now govern the internal affairs of CANORECO

On 3 January 1997, the petitioners filed an Urgent Motion for Issuance of a Temporary Restraining Order.

On 9 January 1997, the petitioners filed a Manifestation and Motion informing the Court that on 8 January 1997 respondent Rex Tantiongco notified the petitioners that the Ad Hoc Committee was taking over the affairs and

management of CANORECO effective as of that date. 11 They reiterated their plea for the issuance of a temporary restraining order because the Ad Hoc Committee has taken control of CANORECO and usurped the functions of the individual petitioners.

In the Resolution dated 13 January 1997, we required respondents to comment on the petition.

Despite four extensions granted it, the Office of the Solicitor General (OSG) failed to file its Comment. Hence, in the resolution of 16 July 1997 we deemed the OSG to have waived the filing of its Comment and declared this case submitted for decision. The OSG's motion to admit its Comment, as well as the attached Comment, belatedly filed on 24 July 1997 was merely noted without action in the resolution of 13 August 1997. We also subsequently denied for lack of merit its motion for reconsideration.

We find the instant petition impressed with merit.

Having registered itself with the CDA pursuant to Section 128 of R.A. No. 6938 and Section 17 of R.A. No. 6939, CANORECO was brought under the coverage of said laws. Article 38 of R.A. No. 6938 vests upon the board of directors the conduct and management of the affairs of cooperatives, and Article 39 provides for the powers of the board of directors. These sections read:

Art. 38. Composition of the Board of Directors. — The conduct and management of the affairs of a cooperative shall be vested in a board of directors which shall be composed of not less than five (5) nor more than fifteen (15) members elected by the general assembly for a term fixed in the by-laws but not exceeding a term of two (2) years and shall hold office until their successors are duly elected and qualified, or until duly removed. However, no director shall

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serve of more than three (3) consecutive terms.

Art. 39. Powers of the Board of Directors. — The board of directors shall direct and supervise the business, manage the property of the cooperative and may, by resolution, exercise all such powers of the cooperative as are not reserved for the general assembly under this Code and the by-laws.

As to the officers of cooperatives, Article 43 of the Code provides:

Art. 43. Officers of the Cooperative. — The board of directors shall elect from among themselves only the chairman and vice-chairman, and elect or appoint other officers of the cooperative from outside of the board in accordance with their by-laws. All officers shall serve during good behavior and shall not be removed except for cause and after due hearing. Loss of confidence shall not be a valid ground for removal unless evidenced by acts or omissions causing loss of confidence in the honesty and integrity of such officer. No two (2) or more persons with relationship up to the third degree of consanguinity or affinity shall serve as elective or appointive officers in the same board. 12

Under Article 34 of the Code, the general assembly of cooperatives has the exclusive power, which cannot be delegated, to elect or appoint the members of the board of directors and to remove them for cause. Article 51 thereof provides for removal of directors and officers as follows:

Art. 51. Removal. — An elective officer, director, or committee member may be removed by a vote of two-thirds (2/3) of the voting members present and constituting a quorum, in a regular or special general assembly meeting called for the purpose. The person involved shall be given an opportunity to be heard at said assembly.

Memorandum Order No. 409 clearly removed from the Board of Directors of CANORECO the power to manage the affairs of CANORECO and transferred such power to the Ad Hoc Committee, albeit temporarily. Considering that (1) the take-over will be "until such time that a general membership meeting can be called to decide the serious issues affecting the said cooperative and normalcy in operations is restored, and (2) the date such meeting shall be called and the determination of whether there is a need to change the composition of the membership of CANORECO's Board of Directors are exclusively left to the Ad Hoc Committee, it necessarily follows that the incumbent directors were, for all intents and purposes, suspended at the least, and removed, at the most, from their office. The said Memorandum did no less to the lawfully appointed General Manager by directing that upon the settlement of the issue concerning the composition of the board of directors the Committee shall decide on the appointment of a general manager. In the meantime, it authorized the Committee to designate upon the recommendation of the Chairman an Acting Manager, with the lawfully appointed Manager considered on leave, but who is, however, entitled to the payment of his salaries.

Nothing in law supported the take-over of the management of the affairs of CANORECO, and the "suspension," if not "removal," of the Board of Directors and the officers thereof.

It must be pointed out that the controversy which resulted in the issuance of the Memorandum Order stemmed from a struggle between two groups vying for control of the management of CANORECO. One faction was led by the group of Norberto Ochoa, while the other was petitioners' group whose members were, at that time, the incumbent directors and officers. It was the action of Ochoa and his cohorts in holding a special meeting on 28 May 1995 and then declaring vacant the positions of cooperative officers

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and thereafter electing themselves to the positions of president, vice-president, treasurer, and secretary of CANORECO which compelled the petitioners to file a petition with the CDA. The CDA thereafter came out with a decision favorable to the petitioners.

Obviously there was a clear case of intra-cooperative dispute. Article 121 of the Cooperative Code is explicit on how the dispute should be resolved; thus:

Art. 121. Settlement of Disputes. — Disputes among members, officers, directors, and committee members, and intra-cooperative disputes shall, as far as practicable, be settled amicably in accordance with the conciliation or mediation mechanisms embodied in the by-laws of the cooperative, and in applicable laws.

Should such a conciliation/mediation proceeding fail, the matter shall be settled in a court of competent jurisdiction.

Complementing this Article is Section 8 of R.A. No. 6939, which provides:

Sec. 8. Mediation and Conciliation. — Upon request of either or both or both parties, the [CDA] shall mediate and conciliate disputes with the cooperative or between cooperatives: Provided, That if no mediation or conciliation succeeds within three (3) months from request thereof, a certificate of non-resolution shall be issued by the commission prior to the filing of appropriate action before the proper courts.

Even granting for the sake of argument that the party aggrieved by a decision of the CDA could pursue an administrative appeal to the Office of the President on the theory that the CDA is an agency under its direct supervision and control, still the Office of the President could

not in this case, motu proprio or upon request of a party, supplant or overturn the decision of the CDA. The record does not disclose that the group of Norberto Ochoa appealed from the decision of the CDA in CDA-CO Case No. 95-010 to the Office of the President as the head of the Executive Department exercising supervision and control over said agency. In fact the CDA had already issued a Cease and Desist Order dated 14 August 1996 ordering Antonio Obias, Norberto Ochoa, Luis Pascua, Felicito Ilan and their followers "to cease and desist from acting as the Board of Directors and Officers of Camarines Norte Electric Cooperative (CANORECO) and to refrain from implementing their Resolution calling for the District V Election on August 17 and 24, 1996." 13 Consequently, the said decision of the CDA had long become final and executory when Memorandum Order No. 409 was issued on 3 December 1996. That Memorandum cannot then be considered as one reversing the decision of the CDA which had attained finality.

Under Section 15, Chapter III of Book VII of the Administrative Code of 1987 (Executive Order No. 292), decisions of administrative agencies become final and executory fifteen days after receipt of a copy thereof by the party adversely affected unless within that period an administrative appeal or judicial review, if proper, has been perfected. One motion for reconsideration is allowed. A final resolution or decision of an administrative agency also binds the Office of the President even if such agency is under the administrative supervision and control of the latter.

We have stated before, and reiterate it now, that administrative decisions must end sometime, as fully as public policy demands that finality be written on judicial controversies. Public interest requires that proceedings already terminated should not be altered at every step, for the rule of non quieta movere prescribes that what had

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already been terminated should not be disturbed. A disregard of this principle does not commend itself to sound public policy. 14

Neither can police power be invoked to clothe with validity the assailed Memorandum Order No. 409. Police power is the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society. 15 It is lodged primarily in the legislature. By virtue of a valid delegation of legislative power, it may also be exercised by the President and administrative boards, as well as the lawmaking bodies on all municipal levels, including the barangay. 16 Delegation of legislative powers to the President is permitted in Sections 23(2) and 28(2) of Article VI of the Constitution. 17 The pertinent laws on cooperatives, namely, R.A. No. 6938, R.A. No. 6939, and P.D. No. 269 as amended by P.D. No. 1645 do not provide for the President or any other administrative body to take over the internal management of a cooperative. Article 98 of R.A. 6938 instead provides:

Art. 98. Regulation of Public Service Cooperatives. — (1) The internal affairs of public service cooperatives such as the rights and privileges of members, the rules and procedures for meetings of the general assembly, board of directors and committees; for the election and qualification of officers, directors, and committee members; allocation and distribution of surpluses, and all other matters relating to their internal affairs shall be governed by this Code.

We do not then hesitate to rule that Memorandum Order No. 409 has no constitutional and statutory basis. It violates the basic underlying principle enshrined in Article 4(2) of R.A. No. 6938 that cooperatives are democratic organizations

and that their affairs shall be administered by persons elected or appointed in a manner agreed upon by the members. Likewise, it runs counter to the policy set forth in Section 1 of R.A. No. 6939 that the State shall, except as provided in said Act, maintain a policy of non-interference in the management and operation of cooperatives.

WHEREFORE, the instant petition is GRANTED and Memorandum Order No. 409 of the President is hereby declared INVALID.

SO ORDERED

G.R. No. 90336 August 12, 1991

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

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

Juan G. Atencia for private respondent.

GANCAYCO, J.:p

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

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

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

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

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

Thereafter, the following were elected officers of the FABC:

President — Ruperto Taule

Vice-President — Allan Aquino

Secretary — Vicente Avila

Treasurer — Fidel Jacob

Auditor — Leo Sales 1

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

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

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

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

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

Petitioner raises the following issues:

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

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

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

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

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

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

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

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

panlalawigan. The katipunang panlungsod and the katipunang bayan shall be composed of the punong barangays of cities and municipalities, respectively.

xxx xxx xxx

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

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

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

Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on Elections shall exercise "exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional,

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provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or elective barangay officials decided by trial courts of limited jurisdiction. 9

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

The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. 12 It involves the choice or selection of candidates to public office by popular vote. 13 Specifically, the term "election," in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the

votes 14 which do not characterize the election of officers in the Katipunan ng mga barangay. "Election contests" would refer to adversary proceedings by which matters involving the title or claim of title to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute 15 and in the case of elections of barangay officials, it is restricted to proceedings after the proclamation of the winners as no pre-proclamation controversies are allowed. 16

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

However, the Secretary of Local Government is not vested with jurisdiction to entertain any protest involving the election of officers of the FABC.

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

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

P a g e | 47

of local autonomy and monitor compliance thereof by said units."

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

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

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

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

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

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

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

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

Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to

P a g e | 48

be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments. 27

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

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

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

The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not substantially complied with, the election shall be declared null and void by the Department of Local Government and an election shall conduct and being invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989 elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and regulations 34 cannot be applied retrospectively. 35 Moreover, such provision is null and void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon itself.

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

As presiding officer of the sagguniang panlalawigan, the

P a g e | 49

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

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

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

The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merelypermissive, 37 as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the rules would have provided so, as it did in the elections at the town and city levels 38 as well as the regional level.. 39

It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of

Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections should be nullified.

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

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

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

Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging that public respondent Local Government Secretary, in his memorandum dated June 7, 1990, designated Augusto Antonio as temporary representative of the Federation to the sangguniang panlalawigan of Catanduanes. 41 By virtue of this memorandum, respondent governor swore into said office Augusto Antonio on June 14, 1990. 42

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

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

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

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

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

xxx xxx xxx

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

In Ignacio vs. Banate Jr. 45 the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the sangguniang panlungsod, 46 declared as null and void the appointment of private respondent Leoncio Banate Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked the elegibility and qualification required by law, not being a barangay captain and for not having been elected president of the association of barangay councils. The Court held that an unqualified person cannot be appointed a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, 47 the appointment of Nemesio L. Rasgo Jr. as representative of the youth sector to the sangguniang panlungsod of Davao City was declared invalid since he was never the president of the kabataang barangay city federation as required by Sec. 173, Batas Pambansa Blg. 337.

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

Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the

P a g e | 51

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

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

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

The Supplemental petition is hereby GRANTED. The

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

No costs.

SO ORDERED.

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G.R. No. L-61998 February 22, 1983

ROGELIO DE JESUS, petitioner,vs.PEOPLE OF THE PHILIPPINES, et al., respondents.

Jaime G. Fortes for petitioner.

The Solicitor General for respondents.

ESCOLIN, J.:

The question of law posed for determination in this petition for review on certiorari of the resolution of the Sandiganbayan may be propounded thus: Which of these entities have the power to investigate, prosecute and try election offenses committed by a public officer in relation to his office — the Commission on Elections and the Court of First Instance [now the regional trial court] or the Tanodbayan and the Sandiganbayan?

After the local elections of January 18, 1980, Ananias Hibo defeated candidate of the Nacionalista Party for the office of mayor of the Municipality of Casiguran, Sorsogon filed with the COMELEC a complaint charging petitioner Rogelio de Jesus, then COMELEC registrar of Casiguran, with violation of

the 1978 Election Code. Copy of the complaint was sent to the Ministry of Justice which endorsed the same to the Provincial Fiscal of Sorsogon for investigation. Noting that petitioner was being charged in relation to his office, Asst. Fiscals Manuel Genova and Delfin Tarog in their capacity as deputized Tanodbayan prosecutors, conducted an investigation. Thereafter Fiscal Genova issued a resolution finding the existence of a prima facie case against petitioner for violation of section 89 1 and sub-sections [x] 2 and [mm] 3 of Section 178 of the Election Code of 1978. After approval thereof by the Tanodbayan, the following information, dated January 27, 1982, was filed before the Sandiganbayan:

That on or about January 30, 1980 and sometime thereafter to February 6, 1980, in the Municipality of Casiguran Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused while discharging the Office of the Election Registrar in the Municipality of Casiguran, Province of Sorsogon, taking advantage and abusing his official position, did there and there wilfully unlawfully and feloniously by reason of his being a registrar knowingly registered persons in order to vote on January 30, 1980 being an election day and at the same time issuing Identification cards during election day, thereby violating the provision of the Election Code of 1978 and at the same time tampering with the election reports by mag it appear that 10,727 persons were the total number of registered voters for the election of January 30, 1980, when in truth and in fact the actual total number of voters as - sported on January 27, 1980 by the accused was only 10,532 but then changed to 10,727, thereby violating the provisions of Section '89' and Section.'178' under Article XVI specifically sub- section 'X' and sub-section 'MM' which is a violation of the Election Code of 1978 to the erosion of public faith and confidence.

The case, docketed as SB Criminal Case No. 5054, was

P a g e | 53

raffled to the Second Division of the Sandiganbayan.

Petitioner filed a motion to quash the information, contending that neither the Tanodbayan nor the Sandiganbayan has the authority to investigate, prosecute and try the offense

xxx xxx xxx

[x] Any election registrar or any person acting in his behalf who issues or causes the issuance of a voter's certificate of registration or cancels or causes the cancellation thereof the violation of the provisions of this Code.

xxx xxx xxx

[mm] Any person who, without authority, acts as, or assumes r performs any -function of a member of the election committee, or the board of canvassers, or deputy of representative of the Commission.

charged in the information, the same being an election offense over which the power to investigate, prosecute and try is lodged by law in the COMELEC and the Court of First Instance. In its opposition, the prosecution maintained the Tanodbayan's exclusive authority to investigate and prosecute offenses committed by public officers and employees in relation to their office, and consequently, the Sandiganbayan's jurisdiction to try and decide the charges against petitioner.

The COMELEC, having learned of the pendency of the case, entered its appearance as amicus curiae, and through its law department manager, Atty. Zoilo Gomez, Jr., submitted a memorandum supporting petitioner's stand. 4

On August 13, 1982, the Sandiganbayan issued the

questioned resolution denying the motion to quash. Petitioner's motion for reconsideration was likewise denied. Hence, this petition for review on certiorari.

The legal question posed being one of first impression, this, Court resolved to give due course to the petition, treating the same as an original petition for certiorari under Rule 65 of the Rules of Court, the proper mode by which relief from the resolution of the Sandiganbayan could be obtained from this Tribunal. Petitioner and respondents rely on different provisions of the 1973 Constitution as bases for their respective contentions. Petitioner invokes Section 2 of Article XII[c] of the 1973 Constitution which vests upon the COMELEC the power "to enforce and administer all laws relative to the conduct of elections," and its implementing legislation, Section 182 of the 1978 Election Code, which provides the following:

Section 182 — Prosecution. The Commission shall, thru its duly authorized legal officer, have the power to conduct preliminary investigation of all election offenses punishable under this Code and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government.

Petitioner further cites Section 184 of the same Code which invests the court of first instance with "exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this code except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the city or municipal courts. ... The Solicitor General supports the petitioner's views. 5

Upon the other hand, the Sandiganbayan, in its resolution of August 13, 1982, 6 asserts its jurisdiction over Criminal Case No. 5054 on the authority of Section 5, Article XIII of the Constitution, which mandated the creation by the Batasan

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Pambansa of "a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices, and such other offenses committed by public officers and employees, including those in government-owned and controlled corporations, in relation to their office as may be determined by law."

To the Sandiganbayan, as set forth in the challenged resolution, ... the key phrase in the determination as to which of the Sandiganbayan or the regular courts of first instance should take cognizance of an election offense, is the phrase, 'in relation to their office'." Thus, it would distinguish between election offenses committed by public officers and employees in relation to their office and those committed not in relation to their office, in this manner:

If the election offense is committed by a public officer or employee NOT in relation to their office, generally, jurisdiction will be assumed by the regular courts. If, on the other hand, the offense was committed by a public officer or employee in relation to their office, then there is no other tribunal vested with jurisdiction to try such offense but this court, in consonance with the mandate of the Constitution that the Sandiganbayan has jurisdiction, lover ... offenses committed by public officers and employees in relation to their office.

We find the position of the Sandiganbayan devoid of merit.

The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in

the frustration of the true will of the people and make a mere Idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.

From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceive neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office, as contra-distinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978.

Under the Constitution, the Sandiganbayan shall have jurisdiction over ... offenses committed by public officers ... in relation to their office as may be determined by law" [Sec. 5, Art. XIII]; while the Office of the Tanodbayan shall "receive and investigate complaints relative to public office." [Sec. 6, Art. XIII]. The clause, "as may be determined by law" is, to Our mind imbued with grave import. It called for a legislation that would define and delineate the power and jurisdiction of both the Tanodbayan and the Sandiganbayan, as what, in fact had been provided for in Presidential Decree Nos. 1606 and 1607, creating the said entities.

Thus, under Section 4 of P.D. No. 1606, the Sandiganbayan shall have jurisdiction over:

[a] Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379;

P a g e | 55

[b] Crimes committed by public officers and employees, including those employed in government-owned or controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other crimes; and,

[c] Other crimes or offenses committed by public officers or employees, including those employed in government-owned or controlled corporations, in relation to their office.

Plainly, the above quoted paragraph [c] is but a re-statement of the constitutional provision relating to the Sandiganbayan. It is also to be noted that it is phased in terms so broad and general that it cannot be legitimately construed to vest said entity with exclusive jurisdiction over election offenses committed by public officers in relation to their office. Neither can it be interpreted to impliedly repeal the exclusive and original jurisdiction granted by Section 184 of the Election Code of 1978 to the court of first instance to hear and decide all election offenses, without qualification as to the status of the accused.

Apart from the fact that repeals by implication are not favored. it is noted that while Section 184 of the Election Code deals specifically with election offenses, Section 4[c] of P.D. No, 1606 speaks generally of "other crimes or offenses committed by public officers ... in relation to their office." Needless to state, as between specific and general statute, the former must prevail since it evinces the legislative intent more clearly than a general statute does. 7 And where a reconciliation between the statute is possible, as in the case at bar, the former should be deemed an exception to the latter. 8

The same principle of statutory construction should be applied with respect to the powers vested upon the

COMELEC and the Tanodbayan in so far as election offenses are concerned.

Moreover, as aptly observed by the COMELEC as well as the Solicitor General, splitting the jurisdiction over election offenses would serve no beneficial purpose but would rather spawn much controversy — "complaints about unequal protection, about inconsistent decisions, etc. (which are) not conducive to a fair and speedy administration of justice." [p. 17, Comment, Solicitor General].

WHEREFORE, the resolution of the Sandiganbayan Second Division dated August 13, 1982 is hereby set aside and Criminal Case No. 5054. entitled "People of the Philippines versus Rogelio de Jesus" is ordered dismissed. The COMELEC is hereby directed to forthwith conduct an investigation, and if the evidence so warrants, to prosecute the complaint against petitioner before the proper court of first instance. No costs.

SO ORDERED.

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G.R. No. 109113 January 25, 1995

CONCERNED OFFICIALS OF THE METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), petitioners,vs.HON. OMBUDSMAN CONRADO M. VASQUEZ AND MEMBERS OF THE PHILIPPINE LARGE DIAMETER PRESSURE PIPE MANUFACTURERS ASSOCIATION (PLDPPMA), respondents.

VITUG, J.:

The Ombudsman, in its 19th October 1992 Order, 1 directed the Board of Trustees of Metropolitan Waterworks and Sewerage System ("MWSS") (a) to set aside the recommendation of its Pre-qualification, Bids and Awards Committee for Construction Services and Technical Equipment ("PBAC-CSTE") that Contract No. APM-01 be

given to a contractor offering fiberglass pipes and (b) to instead award the contract to a complying and responsive bidder pursuant to the provisions of Presidential Decree No. 1594. 2 The subsequent motion for reconsideration was denied by the Ombudsman in its Order 01 March 1993.

These two Orders are now sought to be annulled in this petition for certiorari, with prayer for preliminary injunction or a restraining order, lodged by the "Concerned Officials of the Metropolitan Waterworks and Sewerage System" 3 led by its former Administrator Teofilo I. Asuncion. Let us first touch on the factual backdrop.

In order to provide about 1.3 million liters of water daily to about 3.8 million people in the metropolitan area, 4 MWSS launched the Angat Water Supply optimization ("AWSOP") consisting of several phases. The entire project would be, in most part, financed by funds loaned by the Overseas Economic Cooperation Fund ("OECF") of Japan to the national government and allocated to MWSS in the form of equity. 5 With the completion of the construction of the main aqueduct from Angat Dam all the way down to La Mesa Dam in Novaliches, Quezon City, from where water mains for the distribution system of the entire Metro Manila begin, MWSS focused its attention to the Distribution System Phase of the AWSOP. The projects were denominated Projects APM-01 and APM-02 which consist of the construction of the Distribution System Phase of the AWSOP, that would particularly call for the supply of labor, materials and equipment, and of the installation of new watermains (43,305 linear meters for APM-01 and 31,491 linear meters for APM-02), 6 comprising of fittings, valves and pipes of different sizes. 7 Under Clause IB-34 of the contract documents for APM-01 and APM-02 the permitted alternative pipe materials for the projects were to include the following items:

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(millimeters)

Asbestos cement Pipe (ACP)

—

100 mm to 600 mm

Cast Iron Pipe (CIP)

—

50 and larger

Polyethylene Pipe (PE)

—

50 mm to 250 mm

Polyvinyl Chloride Pipe (DIP)

—

50 mm and larger

Steel Pipe (SP)

—

400 mm and larger

Fiberglass Pressure Pipe (FPP)

—

300 mm and larger 8

On 30 August 1991, MWSS caused the publication in two (2) leading newspapers of an "Invitation for Pre-qualification and Bids" for Projects were opened for international competitive bidding, copies of the "Invitation for pre-qualification and Bids" were sent to the respective embassies and trade missions of member countries of the OECF. The advertisement and invitation to prospective bidders announced that "(g)oods and services to be supplied under (the) contract must have their origin from countries defined in the Guidelines for Procurement of Goods under OECF loans" and that "(j)oint ventures between foreign and domestic firms as encouraged." While there were twenty-five (25) prospective applicants who secured pre-qualification documents, only fourteen (14) contractors submitted corresponding applications to the PBAC-CSTE.

On 20 November 1991, the PBAC-CSTE, after evaluating the applications for pre-qualification, issued a report 9 concluding that only eleven (11) 10 out of the fourteen (14) contractors were pre-qualified to bid for the 31st March 1992 scheduled bidding covering both the APM-01 and APM-

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02 proposed contracts. The major factors considered in the evaluation were the applicants' financial condition, technical qualifications and experience to undertake the project under bid.

Meanwhile, private respondent Philippine Large Diameter pressure Pipes Manufacturers' Association ("PLDPPMA"), 11 sent seven (7) letters, between 13 January and 23 March 1992, to the MWSS requesting clarification, as well as offering some suggestions, on the technical specifications for APM-01 and APM-02.

The first letter, dated 13 January 1992, 12 sought clarification on the design criteria of thickness used for fiberglass and ductile iron pipes which varied from the standard thickness given by manufacturers.

The second letter, dated 29 January 1992, 13 suggested that all alternative pipes for Projects APM-01 and APM-02 should have the same design criteria on stiffness class, pressure class, rating, elevated temperature and wall thickness and should be manufactured in accordance with American water Works Association ("AWWA") standards.

PLDPPMA, in its third letter of 13 February 1992, 14 sought to be elaborated on the imposition of the testing procedure of stiffness factor on steel pipes used in Fiberglass Reinforced Pipes ("FRP") and suggested that the 5-year minimum experience by manufacturers be required for alternative pipes.

In its fourth letter, dated 25 February 1992, 15 PLDPPMA reiterated their request that the deflection allowance of 3% under the AWWA standards on steel pipes be also applied to all alternative pipes and suggested that a comparative study should be undertaken by the MWSS on the feasibility of using filament wound fiberglass pipes ("FRP") and

centrifugally cast fiberglass pipes ("GRP").

In their fifth letter, dated 05 March 1992, 16 PLDPPMA appealed to the MWSS to have steel pipes placed in equal footing with other alternative pipes, specifically filament wound and centrifugally cast fiberglass pipes, in order to avoid an unfair requirement on stiffness value.

In their penultimate letter of 16 March 1992, 17 PLDPPMA informed MWSS of their computation for wall thickness and stiffness values for cement lined/cement coated and epoxy lined/coal tar enamel coated steel pipes based on AWWA standards.

Finally, in their seventh letter of 23 march 1992, 18 PLDPPMA reiterated their request for correcting the specifications for steel and fiberglass pipes, particularly on wall thickness and deflections, because of MWSS Addendum #5 where the wall thickness for steel pipes were noted to be more than the wall thickness computed in the previously agreed agenda.

Former Administrator Luis Sison issued, between 10 February and 24 March 1992, six (6) addenda to the bidding documents that embodied the meritorious suggestions of PLDPPMA on various technical specifications. In his 24th March 1992 letter to the PLDPPMA, in response to the latter's 23rd march 1992 (seventh) letter, Sison explained that the additional thickness for steel pipes was so required in order to serve as a pipe corrosion allowance to counter imperfection in the preparation and application of lining and coating, the limit service life of epoxy resin lining and the corrosive element of the local soil.

The bidding was conducted by PBAC on the previously scheduled date of 31 March 1992. The prequalified bidders using steel and fiberglass pipes submitted their respective

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bid proposals. The approved agency cost estimate for Project APM-01 was Three Hundred Sixty Six Million Six Hundred Fifty Thousand Pesos (P366,650,000,00). 19 The Three (3) lowest bidders for the said project (APM-01) were the following:

BIDDER

BID PRICE

1

DYWIDAG/TITAN/WILPER

PLDPPMA/GREEN JADE (Joint Venture)

P267,345,574.00

2

F.F. CRUZ & CO., INC.

P268,815,729.00

3

J.V. ANGELES CONST. CORP./JA

DEVT. CORP.

P278,205,457.00 20

while the three lowest bidders for Project APM-02 included:

BIDDER

BID PRICE

1

ENG'G. EQUIPMENT, INC. (EEI)

P219,574,538.00

2

FF CRUZ & CO., INC.

P233,533,537.00

3

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J.V ANGELES CONST. CORP./JA

DEVT. CORP.

P277,304,604.00 21

In APM-01, Joint Venture and F.F. Cruz and Co., Inc. proposed to use fiberglass pipes. In APM-02, Eng'g. Equipment Inc. and F.F. Cruz likewise preferred to use fiberglass pipes.

After the three lowest bidders for both projects were known, a meeting was held on 27 May 1992 by the PBAC-CSTE, composed of MWSS Deputy Administrator for Engineering Eduardo M. del Fierro, as Acting Chairman, and deputy Administrator for Operations Ruben A. Hernandez, Acting Chief of Legal office Precioso E. Remolacio, and Project Manager Cesar S. Guevarra, as members, to decide on what should be done about Contract APM-01. Three of the members, namely, Hernandez, Guevarra and Asuncion, recommended for the contract on the following grounds:

a. Ambiguity of Addendum No. 6 — The Addendum is subject to different interpretations because there was no illustrations provided. Further, it could also be said that some contractors did not use the FRP because said Addendum was not clearly explained.

b. There was no provision for maintenance/repair materials for bidders who opted to use FRP which is relatively new pipe to be used in the country. It was suggested that a 5% to 10% allowance be provided for maintenance purposes.

c. Further review of pipe design should be made by the Consultant (NJS) in order to accommodate the load to be carried in the Umiray-Angat Loop. 22

Precioso E. Remolacio abstained; he felt that "technical evaluation (was) more essential in deciding the issues in (the) Contract." For his part, Acting Chairman Eduardo M. del Fierro recommended that no rebidding should be undertaken and that an award should be made to either the lowest or the second lowest bidder.

On 29 May 1992, PBAC-CSTE met again to discuss and evaluate the bids in APM-02. Here again, three members, namely, Guevarra, Hernandez and Asuncion, opined that a rebidding should be conducted, while Acting Chairman del Fierro and Remolacio believed that the contract should be awarded to the lowest bidder.

Finally, on 02 June 1992, the PBAC-CSTE formally submitted its report 23 on its bid evaluation on APM-01. The PBAC-CSTE held that while Joint Venture's bid might have been the lowest it was, however, invalid due to its failure to acknowledge Addendum No. 6, a major consideration, that could not be waived. It accordingly recommended that the contract be instead awarded to the second lowest but complying bidder, F.F. Cruz & Co., Inc., subject to the latter's manifestation that it would only hire key personnel with experience in the installation of fiberglass pressure pipes (due to PBAC-CSTE's observation in the report that the company and its key personnel did not have previous experience in the installation of fiberglass reinforced pipes). Acting Chairman del Fierro, together with members Guevarra and Asuncion, approved the PBAC-CSTE's findings and recommendation. Hernandez and Remolacio both disagreed with the findings of the PBAC-CSTE; the former opted for a rebidding while the latter batted for awarding the contract to Joint Venture.

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On the following day, or on 03 June 1992, the MWSS Board Committee on Construction Management and the Board Committee on Engineering, acting jointly on the recommendation of Administrator Sison, recommended that Contract No. APM-01 be awarded to F.F. Cruz & Co., Inc., being the lowest complying bidder. 24

Prior thereto, or on 07 April 1992 (seven days after the submission of the bid proposals on 31 March 1992), private respondent PLDPPMA, through its President Ramon Pastor, filed with the Office of the Ombudsman a letter-complaint 25 (docketed Case No. OMB-0-92-0750) protesting the public bidding conducted by the MWSS for Projects APM-01 and APM-02, detailing charges of an "apparent plan" on the part of the MWSS to favor suppliers of fiberglass pipes, and urging the Ombudsman to conduct an investigation thereon and to hold in abeyance the award of the contracts. PLDPPMA's letter-complaint, in part, read:

Even before the bidding had started, there appears to be an apparent plan on the part of the MWSS to favor a particular supplier of pipes for the project considering the following events:

Firstly, the bid documents particularly the specifications for alternative pipes when first released in December 1991 whimsically and arbitrarily set such rigid standards for steel pipes so that MWSS had to issue six addenda to the bidding documents and had to postpone the bidding several times in a vain attempt to correct the apparent prejudice against the use of steel pipes for the APM 01 and 02 projects;

Secondly, despite our prior agreement with MWSS Engineering Department that the alternative pipes to be used for the project should comply with internationally accepted AWWA specifications was written arbitrarily and in

complete disregard of AWWA specifications increased by 1 mm. the thickness required for steel pipes thereby effectively increasing the cost of steel pipes for the APM 01 project bid by about P30 Million, or more than twice the difference between the lowest bid and the bid that utilized steel pipes;

Thirdly, despite the fact that it was/is of common knowledge that FRP and GRP (Fiberglass) pipes have had a long history of failures in the United States such that even MWSS Pre-qualification, Bidding and Awards Committee resolved in a meeting held in March 1992 not to use FRP and GRP pipes for large projects, bids utilizing such pipes were still accepted for the FRP and GRP pipes for large projects, bids utilizing such pipes were still accepted for the APM 01 and 02 projects; and

Lastly, the undue preference for the use of GRP pipes became more apparent when the supposed lowest bidder for the APM 01 project (who did not participate in the bidding for APM 02 project), and the supposed lowest bidder for the APM 02 project (who also did not participate in the bidding for APM 01 project), both submitted bids utilizing GRP pipes.

On 10 June 1992, the Ombudsman referred PLDPPMA's 07th April 1992 letter-complaint to the MWSS Board of Trustees for comment along with a directive to it to hold in abeyance the awarding of the subject contract. 26 MWSS asked for an extension of time within which to submit its comment but called, at the same time, the attention of the Ombudsman to Presidential Decree No. 1818 27 prohibiting the issuance of restraining orders/injunctions in cases involving government infrastructure projects.

After the submission by the parties of their respective pleadings, the case was referred to the Fact-Finding and

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Intelligence Bureau of the Office of the Ombudsman for Investigation and report 28 was submitted to, and approved by, the Ombudsman which became the basis for the issuance of the now challenged order, dated 19 October 1992, 29 reading as follows:

In view of the findings of this Office on the above-entitled case as contained in the Fact-Finding Report, dated September 14, 1992, of the Fact Finding Investigation Bureau (copy attached), and pursuant to the Powers, Functions and Duties of the Office of the Ombudsman as mandated under Section 15 of Republic Act 6770 (Ombudsman Act), the MWSS Board of Trustees in hereby directed to:

1) Set aside the recommendation of the MWSS Pre-qualification, Bids and Awards Committee for Construction Services and Technical Equipment (PBAC-CSTE) to award Contract APM-01 to a contractor offering fiberglass pipes;

2) Award the subject contract to a complying and responsive bidder pursuant to the provisions of PD 1594, Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts.

The Board of Trustees is further directed to inform this Office of the action taken thereon.

SO ORDERED.

A motion by herein petitioners for the reconsideration of the order was denied on 01 March 1993. 30

Petitioners cite to us the following reasons for its petition for certiorari.

I

RESPONDENT OMBUDSMAN ACTED BEYOND THE COMPETENCE OF HIS OFFICE WHEN HE ASSUMED JURISDICTION OVER THE COMPLAINT AT BAR NOTWITHSTANDING THAT THE SAME IS CLEARLY AMONG THE CASES EXCEPTED BY SECTION 20 OF THE OMBUDSMAN ACT OF 1989 (RA NO. 6770) WHICH ENUMERATED THE ADMINISTRATIVE ACT OR OMISSION THAT MAY NOT BE THE SUBJECT OF INVESTIGATION BY HIS OFFICE.

II

RESPONDENT OMBUDSMAN, AFTER HAVING TAKEN COGNIZANCE OF THE COMPLAINT, ARBITRARILY ISSUED A DIRECTIVE IN THE NATURE OF A RESTRAINING ORDER OR WRIT OF PRELIMINARY INJUNCTION TO PETITIONERS "TO HOLD IN ABEYANCE THE AWARDING OF THE CONTRACT . . . UNTIL FURTHER ORDER FROM THIS OFFICE," A POWER OR AUTHORITY NOT VESTED IN HIS OFFICE.

III

RESPONDENT OMBUDSMAN ACTED WITHOUT JURISDICTION IN ISSUING THE ORDER OF OCTOBER 1993, CONSIDERING THAT UNDER THE LAW THE OMBUDSMAN'S JURISDICTION CANNOT AND SHOULD NOT BE EXPANDED TO INCLUDE THE DECISION MAKING POWER OVER A CIVIL ADJUDICATORY MATTER SUCH AS THE MWSS BIDDING PROCESS.

IV

RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION, BY ARBITRARILY AND CAPRICIOUSLY INTERPRETING WITH THE EXERCISE OF SOUND DISCRETION BY THE MWSS WHICH IS A SPECIALIZED AGENCY OF GOVERNMENT WITH WHICH EVEN COURTS OF

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JUSTICE GENERALLY DO NOT INTERFERE TO ISSUE THE ORDERS.

V

RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION, IN ISSUING THE SUBJECT ORDERS IN GROSS DISREGARD OF THE CARDINAL PRINCIPLES OF DUE PROCEEDINGS, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE SAID ORDERS.

VI

RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION, IN GROSSLY MISAPPREHENDING THE RECORD BY FAILING TO TAKE INTO ACCOUNT THE FINDINGS OF EXPERTS THAT THE MWSS SPECIFICATIONS ARE FAIR, AND BY CONCLUDING BASELESSLY THAT MWSS FORMULATED ITS SPECIFICATIONS TO FAVOR FIBERGLASS PIPES OVER STEEL PIPES, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE THE SUBJECT ORDERS.

VII

RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF LAW, AND ACTED ARBITRARILY AND CAPRICIOUSLY, IN IMPLYING BASELESSLY THAT MWSS ACTED UNFAIRLY, OPPRESSIVELY AND WITH GRAVE ABUSE OF DISCRETION, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE THE SUBJECT ORDERS.

VIII

IN CONSEQUENCE, THE ORDERS OF OCTOBER 19, 1992 AND

MARCH 1, 1993 MUST BE REVERSED, ANNULLED AND SET ASIDE. 31

After the required pleadings were filed by the parties, this Court, in its resolution of 19 May 1994 gave due course to the petition and required the parties to submit memoranda. In compliance therewith, the parties filed their respective memoranda, petitioners (MWSS) on 07 July 1994, the Solicitor-General on 28 June 1994, and PLDPPMA on 19 July 1994. Petitioners opposed Titan's intervention. This Court, ultimately, denied the motion for leave to intervene.

The various alleged errors raised by petitioners can be grouped into two basic issues, i.e., (a) whether or not the rudiments of due process have been properly observed in the issuance of the assailed 19th October 1992 and 01st march 1993 orders of the Ombudsman; and, more pivotal that the first, (b) whether or not the Ombudsman has jurisdiction to take cognizance of PLDPPMA's complaint and to correspondingly issue its challenged orders directing the Board of Trustees of the MWSS to set aside the recommendation of the PBAC-CSTE.

Relative to the first issue, we are more than convinced, after a scrutiny of the records of this case, that petitioners have been amply accorded the opportunity to be heard.

Petitioners were asked to comment on the letter-complaint of PLDPPMA. On 25 June 1992, petitioners moved for an extension of time within which to comment. On July 16, 1992, petitioners filed their letter-comment. Responding to the reply of PLDPPMA, petitioners later filed a rejoinder. When an adverse order was rendered against them, petitioners moved for its reconsideration, albeit to no avail.

The absence of due process is an opportunity to be heard. 32 One may be heard, not solely by verbal presentation but

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also, and perhaps even many times more creditably and practicable than oral argument, through pleadings. 33 In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due process in its strict judicial sense.

On the threshold matter that puts to issue the Ombudsman's directive to the Board of Trustees of MWSS to set aside the recommendation of the PBAC — CSTE to award Contract No. APM-01 to the lowest complying bid, we find, this time, the petition to be impressed with merit.

Petitioners maintain that while Republic Act ("R.A.") No. 6770, otherwise known as the Ombudsman Act of 1989, extends certain well-defined powers and authority to the Office of the Ombudsman to, among other functions, investigate and prosecute complaints filed therewith, the same law, however, expresses limits to the exercise of such jurisdictional power and authority. Section 20 of the Act is cited; viz:

Sec. 20. Exceptions. — The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that:

(1) The Complainant has an adequate remedy in another judicial or quasi-judicial body;

(2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman;

(3) The complaint is trivial, frivolous interest in the subject matter of the grievance; or

(4) The complaint is trivial, frivolous, vexations or made in

bad in bad faith;

(5) The complaint was filed after one year from the occurrence of the act or omission complained of.

Petitioners contend that PLDPPMA's complaint falls under exceptions (1) to (4) of Sec. 20 of R.A. No. 6770, and that, therefore, the Ombudsman should not have taken cognizance of the complaint.

Asserting, upon the other hand, that the Ombudsman has jurisdiction over PLDPPMA's complaint, the Solicitor-General enumerations various constitutional and statutory provisions; to wit:

(a) Section 13, Article XI of the 1987 Constitution providing thusly:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct, the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine,

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censure, or prosecution, and ensure compliance therewith

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission of Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

(7) determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

(8) Promulgate its rule of procure and exercise such other powers or perform such functions or duties as may be provided by law.

(b) Section 13 of republic Act No. 6770 which reads:

Sec. 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the

Government to the to the people.

(c) Section 15, paragraphs (1) to (7), of republic Act No. 6770 which reproduced verbatim the aforequoted provisions of Section 13 of the 1987 Constitution with some additional salient statutory provisions; hence:

Sec. 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties:

xxx xxx xxx

(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the same penalties provided therein;

(10) delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions and duties herein or hereinafter provided;

(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein;

The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties.

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(d) And, finally, Section 26 of the Ombudsman Act which expresses, as follows:

Sec. 26. Inquiries. — The Office of the Ombudsman shall inquire into acts or omissions of the public officer, employee, office or agency which, from the reports or complaints it has received the Ombudsman or his Deputies consider to be:

(a) contrary to law or regulation;

(b) unreasonable, unfair, oppresive, irregular or inconsistent with the general course of the operations and functions of a public officer, employee, office or agency;

(c) an error in the application or interpretation of law, rules or regulations, or a gross or palpable error in the appreciation of facts;

(d) based on improper motives or corrupt considerations;

(e) unclear or inadequately explained when reasons should have been revealed; or

(f) inefficiently performed or otherwise objectionable.

2. The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt thereof. If the answer is found satisfactory, it shall dismiss the case.

3. When the complaint consists in delay or refusal to perform a duty required by law, or when urgent action is necessary to protect or preserve the rights of the Ombudsman shall take steps or measures and issue such orders directing the officer, employee, office or agency concerned to:

(a) expedite the performance of duty;

(b) cease or desist from the performance of a prejudicial act;

(c) correct the omission;

(d) explain fully the administrative act in question; or

(e) take any steps as may be necessary under the circumstances to protect and preserve the rights of the complainant.

4. Any delay or refusal to comply with the referral or directive of the Ombudsman or any of his Deputies shall constitute a ground for administrative disciplinary action against the officer or employee to whom it was rendered.

On the basis of all the foregoing provisions of law, the Solicitor-General insists that the authority of the Ombudsman is sufficiently broad enough to cloth it with sufficient power to look into the alleged irregularities in the bidding conducted on 31 March 1992 leading to the recommendation made by the PBAC-CSTE on contract APM-01. He argues that even if no criminal act could be attributed to the former MWSS Administrator and members of the PBAC-CSTE, the questioned report could still be embraced in the all-encompassing phrase "all kinds of malfeasance, misfeasance, and non-feasance," and falls within the scope of the constitutional provision calling for an

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investigation of "any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient."

Indeed, in Deloso v. Domingo, 35 this Court had occasion to explain not only the rationale for the creation of an office of the Ombudsman but also the grant to it of broad investigative authority, thus:

The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office."

To begin with, the owners, functions and duties of the Ombudsman have generally been categorized into the following headings: Investigatory Power; Prosecutory Power; Public Assistance Functions; Authority to Inquire and Obtain Information; and Function to Adopt, Institute and Implement Preventive Measures.Although the Solicitor-General has practically enumerated all the constitutional and statutory provisions describing the ample authority and responsibilities of the Ombudsman, the

particular aspect of his functions that, however, really finds relevance to the present case relates to his investigatory power and public assistance duties which can be found in the first and second paragraphs, respectively, of Section 13, Article XI, of the Constitution, along with the corresponding provisions of the Ombudsman Act. This much can be gleaned from the findings of the Office of the Ombudsman leading to its questioned orders. We quote:

a. There is an evident on the part of the MWSS under then Administrator Sison to favor suppliers of fiberglass when it prescribed rigid standards for steel pipes but set lenient requirements for pipes made of fiberglass, for the following reasons:

1. MWSS management rely on the AWWA standards for fiberglass pipe but neglect the same AWWA standards for steel pipes. The MWSS management under Administrator Sison disregarded the AWWA specifications by increasing 1mm thickness for steel pipes.

2. Complainant sent seven letters to the MWSS questioning and making suggestions of the rules of the bidding it set but only one was answered by Administrator Sison dated and received (by the complainant) after the bidding.

3. The MWSS' original specification for stiffness of fiberglass (36 psi) was [c]hanged to 54 psi (pounds per square inch) in its Addendum No. 1 as a result of the complaints of the PLDPPMA members. But in its Addendum No. 4, the MWSS reverted to the original stiffness class of 36 psi. In the letter-comment dated July 26, 1992 of the MWSS, thru Acting Administrator Teofilo I. Asuncion, the MWSS tried to mislead this office by stating that the stiffness class of fiberglass pipes was increased from 36 psi to 54 psi when in truth, as appearing in its Addendum No. 4, the MWSS reverted to the original stiffness class of 36 psi. there is nothing in the

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subsequent Addenda (Nos. 5 and 6) that will show that the MWSS finally settled for the stiffness class of 54 psi.

4. The MWSS failed to prescribe specific pipe laying procedure for fiberglass pipes. Contrary to the claim of the MWSS that pipes is not a complicated procedure as it is similar with other types of pipes, the installation of fiberglass pipes seems to be a critical factor in the successful implementation of a project as shown in the findings of experts, attached by the MWSS in its motion, and quoted as follows: . . .

5. The MWSS failed to include in the Specifications a provision for the maintenance/repair materials for bidders who opted to use fiberglass pipes. The importance of a provision for repair of fiberglass pipes can be inferred in the findings of experts cited by the MWSS and quoted as follows: . . .

6. The MWSS tried to limit the acceptable joints for fiberglass pipes favorable to a fiberglass manufacturer by issuing Addendum No. 6 which was undated. The provision of Addendum No. 6 "The only acceptable joints are gasketted bell and Spigot and Mechanical Type" appears to be vague and ambiguous as it cannot be determined clearly whether the bidders will be using the Mechanical Type of Joint. As stated in the Report, the cost of the Bell and Spigot Joint is cheaper than the cost of mechanical Type Joint. Moreover, it was only June 1, 1992 or two (2) months after the bidding that the MWSS issued clarification to the effect that fiberglass pipes bidders can use either the Bell and Spigot type or Mechanical type.

7. In connection with Addendum No. 6, this office recently got hold of a copy of a letter dated January 31, 1992 (found on Folder I, records) of Joseph Albanese, Gruppo Sarplast, Milan, Italy (Manufacturer/Supplier of fiberglass pipes for F.F.

Cruz & Co. Inc.), addressed to Felipe Cruz. The letter was officially stamped/received by the Office of the MWSS Administrator on February 12, 1992. It also has a veriño From: Mr. F.F. Cruz." The pertinent portion of the letter in the light of Addendum No. 6 is quoted as follows:

8. Conclusion "During the pre-bid meeting our friends should stay: our Spec TS-23 is a general one, but for this case only the pipes produced with discontinuing filament winding will be accepted and only bell and spigot joint."

The existence of such a letter in such a situation can only mean that F.F. Cruz and Sarplast, Italy had previous communications with the top officials of the MWSS even before the opening of the bids on march 31, 1992. Clearly, the issuance of Addendum No. 6 would only fit well for F.F. Cruz Co., Inc. and Sarplast who is proposing the use of discontinuous filament winding fiberglass pipe with bell and Spigot joint.

b. MWSS has no experience and sufficient knowledge on the use of fiberglass pipes.

c. The Contractors who proposed to use fiberglass pipes have no tract record or experience in the installation of the same. Thus, they are not qualified to undertake projects pursuant to the provisions of PD 1594 and under the guidelines of the Overseas Economic Cooperation Fund.

d. The would-be manufacturers of fiberglass pipes has no manufacturing plant at this stage and there is no guarantee whether such manufacturing plants will be operational.

e. There is no assurance that the manufacturers of fiberglass would be able to produce the kind of pipe desired. 36

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In sum, the Office of the Ombudsman has considered three issues: (1) whether or not the technical specifications prescribed by the MWSS in projects APM 01 and 02 have been so designed as to really favor Fiberglass Pipes-Contractors/Bidders; (2) whether or not the MWSS has the technical knowledge and expertise with fiberglass pipes; and (3) whether or not the contractors and local manufacturers of fiberglass pipes; and (3) whether or not the contractors and local manufacturers of fiberglass pipes have the experience and qualification to undertake the APM-01 and APM-02 projects.

While the broad authority of the Ombudsman to investigate any act or omission which ". . . appears illegal, unjust, improper, or inefficient" may be yielded, it is difficult to equally concede, however, that the Constitution and the Ombudsman Act have intended to likewise confer upon it veto or revisory power over an exercise of judgment or discretion by an agency or officer upon whom that judgment or discretion is lawfully vested. It would seem to us that the Office of the Ombudsman, in issuing the challenged orders, has not only directly assumed jurisdiction over, but likewise pre-empted the exercise of discretion by, the Board of Trustees of MWSS. Indeed, the recommendation of the PBAC-CSTE to award Contract APM-01 appears to be yet pending consideration and action by the MWSS Board of Trustees.

We can only view the assailed 19th October 1992 Order to be more of an undue interference in the adjudicative responsibility of the MWSS Board of Trustees rather than a mere directive requiring the proper observance of and compliance with law. The report submitted by the Fact-Finding and Intelligence Bureau of the Office of the Ombudsman reveals its predisposition against the use of fiberglass pipes, a technical, rather than a legal, matter. The fact-finding report has dealt with such matters as (1) the

wall thickness of pipes; (2) the joints; (3) the pipe laying procedure; (4) the technical expertise of the MWSS, on the one hand, and the fiberglass proponements, on the other; and (5) the supposed negative international feedback on the use of fiberglass pipes.

The question could be asked: Was the 31st March 1992 bidding really that faulty? During the bidding, the people present were the PBAC members, a COA representative, the bidders and the general public. The eleven (11) prequalified contractors, according to the prequalification evaluation 37 of the PBAC, possessed the required experience, technical qualification and financial condition to undertake the project. It should not be amiss to mention that the PBAC, under the implementing rules and regulations of P.D. No. 1594, 38 was tasked with the responsibility "for the conduct of prequalification, bidding, evaluation of bids and recommending award of contracts." In evaluating the bids, PBAC stated in its report that it had examined the three lowest bids. Part of PBAC's review was to verify whether the proposed pipe materials were in conformity with the permitted alternative materials specified in Clause IB-34 of the bid document. 39 In thereafter recommending that the award be made to F.F. Cruz, Inc., instead of Joint venture, PBAC explained:

As presented above, evaluation of the bid results touches on a number of parameters to determine whether the bids are "substantially responsive to the bidding documents and has offered the lowest evaluated bid, and that the bidder has the capacity and resources to effectively carry out the Contract Works." The evaluation was conducted as fairly and accurately as possible to come up with a recommendation that satisfies the interest of the MWSS which in the final analysis, shall bear the consequences if the contract is not fully performed. Conclusions of the important issues are hereunder presented.

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A. Establishing the validity of the Bid of the Lowest Bidder

The deficiencies with respect to the bidding requirements enumerated in Section 4.2.1, page 4 were discussed to wit:

a) Authority of the Signing Official

b) Acknowledgment of Addenda received

c) Currency Exchange Rate

After the discussion, the PBAC agreed that the deficiencies on the a) authority of the signing official and the c) currency exchange rate may be waived as they do not affect the validity of the bid. PBAC believes that the authority given to Fernando M. Sopot by the Consortium in the Joint Venture Agreement substantially complies with Clause IB-20-7 of the Contract Documents. On the currency exchange rate, in the absence of BF-14, the MWSS may provide the exchange rate.

With regard to the acknowledgment of Addendum No. 6, which is a material provision of the documents, it is ascertained that the Joint Venture has not made allowance for the provision of said Addenda. The Joint Venture indicated in the bid, as originally submitted, the acknowledgment of Addenda #1 to #5 only. The alteration made during the bidding acknowledging Addendum #6 was done after the 12 noon deadline of submittal of bids and, hence, cannot be entertained. Moreover, the person who made the alteration is also not authorized to make such alteration and affix his signature to the bid.

It is therefore, the position of the PBAC that the deficiency in the acknowledgment of Addendum No. 6 is a major defect and cannot be waived as it affects the validity of the bid of

the Consortium. The bid has to be rejected as non-complying.

The lowest complying becomes the bid submitted by the second lowest Bidder, F.F. CRUZ, & CO., INC. as discussed above. 40

PBAC was evidently guided by the rule that bids should be evaluated based on the required documents submitted before, and not after, the opening of bids, 41 that should further dispel any indiscriminate or whimsical exercise of discretion on its part.

The MWSS, a government-owned and controlled corporation created by law through R.A. No. 6234, 42 is charged with the construction, maintenance and operation of waterwork system to insure an uninterrupted and adequate supply and distribution of potable water. 43 It is the agency that should be in the best position to evaluate the feasibility of the projections of the bidders and to decide which bid is compatible with its development plans. The exercise of this discretion is a policy decision that necessitates among other things, prior inquiry, investigation, comparison, evaluation, and deliberation — matters that can best be discharged by it. 44 MWSS has passed resolution No. 32-93 45 to likewise show its approval of the technical specifications for fiberglass. All these should deserve weight.

In Razon Inc. v. PPA, 46 we have said that neither this Court nor Congress, and now perhaps the Ombudsman, could be expected to have the time and technical expertise to look into matters of this nature. While we cannot go so far as to say that MWSS would have the monopoly of technical know-how in the waterworks system, by the very nature of its functions, however, it obviously must enjoy an advantage over other agencies on the subject at hand. In Felipe Ysmael, Jr. & Co. Inc. vs. deputy Executive Secretary, 47

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citing numerouscases, 48 this Court has held:

Thus, while the administration grapples with the complex and multifarious problems caused by unbridled exploitation of these resources, the judiciary will stand clear. A long line of cases establish the basic rule that the courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies.

It stands to reason for, in Bureau Veritas v. Office of the President, 49 we have further observed:

The discretion to accept or reject a bid and award contracts is vested in the Government agencies entrusted with that function. The discretion given to the authorities on this matter is of such wide latitude that the Courts will not interfere therewith, unless it is apparent that it is used as a shield to a fraudulent award.

All considered, it is our view that the issue here involved, dealing, such as they do, on basically technical matters, dealing, such as they do, on basically technical matters, deserve to be disentangled from undue interference from courts and so from the Ombudsman as well.

G. R. No. 120014 November 26, 2002

FRANCISCO Q. AURILLO, JR., petitioner,vs.NOEL RABI, and THE REGIONAL TRIAL COURT, Branch 9, Tacloban City, respondents.

D E C I S I O N

CALLEJO, SR., J.:

On January 10, 1995, Noel Rabi was arrested without a warrant of arrest and charged in the Office of the City Prosecutor of Tacloban City with violation of Presidential Decree No. 1866 (possession of unlicensed firearm). The matter was docketed as I.S. No. 95-043. Public Prosecutor Zenaida Camonical Isidro conducted an inquest investigation of the case and issued a resolution on January 11, 1995, recommending that the case be dismissed for lack of probable cause on her findings that the material averments of the Joint Affidavit1 executed by the arresting police officers were hearsay due to the absence of any affidavit of the complainant Rodolfo Cabaluna; and that the knife, gun and the live ammunitions referred to in said affidavit were not found under the chair occupied by Rabi.

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However, Regional State Prosecutor Francisco Aurillo, Jr. of Region VIII decided to assume jurisdiction over the case and to order the conduct of a new preliminary investigation thereof. On January 12, 1995, he issued a Regional Memorandum Order2 to the City Prosecutor of Tacloban City directing him to elevate to his office the complete records of I.S. No. 95-043 within 24 hours from receipt thereof, pursuant to Presidential Decree No. 1275 in relation to Department Order No. 318 of the Department of Justice. Aurillo designated the assistant regional state prosecutor to conduct the new preliminary investigation of I.S. No. 95-043. On January 20, 1995, Aurillo issued another Memorandum Order3 to the City Prosecutor directing him to elevate the affidavit of Rodolfo Cabaluna as well as the subject firearm and knife to the Office of the Regional State Prosecutor with the information that it had taken over the preliminary investigation of the said complaint pursuant to PD 1275 and existing rules.4 The City Prosecutor of Tacloban complied with the order of Aurillo and on January 23, 1995, the Assistant Regional State Prosecutor issued a subpoena notifying Noel Rabi and Margot Villanueva of the preliminary investigation of I.S. No. 95-043 at 9:00 a.m. on February 2, 1995, not only for violation of PD 1866 but also for the crimes of "Violation of Comelec Resolution No. 2323 (gun banned) [sic], Batas Pambansa Bilang 9" (possession of deadly weapon) and "Malicious Mischief."5

When served with the subpoena on January 27, 1995, Rabi was aghast at the sudden turn of events. On the same date and barely a week before the scheduled preliminary investigation, his counsel forthwith filed with the Regional Trial Court of Tacloban City a petition for prohibition with prayer for a temporary restraining order or a writ of preliminary injunction. Rabi alleged that under the 1987 Revised Administrative Code and PD 1275 as implemented by Department Order No. 318 of the Department of Justice, a regional state prosecutor was vested only with

administrative supervision over the city prosecutor and had no power to motu proprio review, revise, or modify the resolution of the city prosecutor on the latter’s conduct of a preliminary or inquest investigation of a criminal complaint filed directly therewith. Rabi contended that by taking over the preliminary investigation of I.S. No. 95-043 and conducting a new preliminary investigation of said case, Aurillo acted without jurisdiction or with grave abuse of discretion amounting to excess or lack of jurisdiction. Rabi thus prayed that, pending resolution of his plea for a writ of preliminary injunction, a temporary restraining order be issued to enjoin Aurillo from proceeding with the preliminary investigation of I.S. No. 95-043.6

Acting on the petition, the RTC issued a Temporary Restraining Order7 dated January 30, 1995, enjoining and prohibiting Aurillo and all others acting for and in his behalf from taking over and conducting a new preliminary investigation of I.S. No. 95-043 until the court shall have resolved the motion for issuance of a writ of preliminary injunction and the other issues raised in the petition. Aurillo received said order on January 30, 1995.8

In answer to the petition, Aurillo alleged that the same was premature as Rabi failed to exhaust all administrative remedies from the Secretary of Justice before filing the petition. He explained that he took over and ordered a new preliminary investigation by virtue of his prosecutorial powers under PD 1275, in relation to Department Order No. 318, the 1985 Rules of Criminal Procedure and Section 38(1), Chapter 7, Book No. IV of the Revised Administrative Code, vesting on him supervision and control over field prosecution officers in the region. He averred that such powers included the authority for him to take over the preliminary investigation of I.S. No. 95-043. Aurillo also claimed that he was not liable for damages for performing an ordinary and routinary function, the regularity of which is

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presumed.9 He further argued that claims for damages and attorney’s fees under Rule 65 of the Revised Rules of Court is proscribed.

During the February 15, 1995 hearing on Rabi’s motion for issuance of a writ of preliminary injunction, the parties marked in evidence their documentary evidence and orally argued their respective positions. Rabi did not testify to prove his claim for damages and attorney’s fees. On the same date, the RTC issued an order declaring that the issue of whether or not the court will issue a writ of preliminary injunction was submitted for resolution and that it will issue a resolution thereon in five days time. However, the RTC failed to do so. Instead, on March 29, 1995, the RTC issued an order directing the parties to file their respective memoranda within five days from receipt thereof after which the petition will be deemed submitted for resolution.10 The parties did not object to the order. Nevertheless, on March 24, 1995, the assistant regional state prosecutor continued with his preliminary investigation of I.S. No. 95-043. Thereafter, with Aurillo’s approval, he filed with the RTC on April 4, 1995 an Information against Rabi for violation of PD 1866.11

On April 12, 1995, the RTC rendered judgment in favor of Rabi. The trial court nullified the preliminary investigation of I.S. No. 95-043 by the Office of the Regional State Prosecutor and the Information filed with the RTC against Rabi. It also ordered Aurillo to pay the amounts of P50,000.00 as moral damages, P50,000.00 as exemplary damages and P30,000.00 as attorney’s fees.12

The RTC declared that under Department Order No. 318 of the Department of Justice, the power of a regional state prosecutor to conduct a preliminary investigation was confined solely to specific criminal cases and only when the Secretary of Justice directs him to do so. The trial court

further held that without any order from the Secretary of Justice, Aurillo cannot motu proprio take over the preliminary investigation of a case already investigated by the city prosecutor or conduct a new one.

The RTC awarded damages and attorney’s fees to Rabi for Aurillo’s wanton disregard of the court’s authority as shown by his filing of an Information against Rabi without authority from the Secretary of Justice. The trial court also nullified the Information filed by Aurillo against Rodolfo Cabaluna, Jr. and held that the filing thereof was made in utter disregard of simple demands of courtesy to the RTC, thereby preempting said court’s resolution of the issues raised in the petition.

Aurillo thereafter filed the instant petition for review on certiorari, on questions of law, against Rabi and the Regional Trial Court, Branch 9, Tacloban City.

When required by the Court to file his comment on the petition, Rabi failed to do so. The petition shall thus be resolved by the Court on the basis of the petition and the annexes thereof.

The issues posed in this case, as synthesized by the Court, are whether or not (a) the petition filed by Rabi with the RTC was premature; (b) Aurillo is empowered to motu proprio take over and conduct a preliminary investigation of I.S No. 95-043, after the inquest investigation thereof had already been terminated and approved by city prosecutor; (c) the Information filed by Aurillo against Rabi with the RTC for violation of PD 1866 may be nullified by said court, and (d) Aurillo is liable for damages and attorney’s fees to Rabi.

On the first issue, the general rule is that an aggrieved party is mandated to first exhaust all administrative remedies before filing a judicial action for redress from acts of administrative bodies or offices in the performance of their

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quasi-judicial functions; otherwise, said action may be dismissed for prematurity.13 However, the principle is not without exceptions. The aggrieved party may validly resort to immediate judicial action where the (a) question raised is purely legal; (b) when the act complained of is patently illegal; (c) when there is an urgent need for judicial intervention;14 (d) when the disputed act is performed without jurisdiction or in excess of jurisdiction; (e) the administrative remedy does not provide for a plain, speedy and adequate remedy; and (f) when due process is disregarded.15

In this case, the Investigating Prosecutor terminated the inquest investigation and came out with her resolution dismissing the case as approved by the City Prosecutor. On January 11, 1995, barely a day thereafter, Aurillo decided to take over the preliminary investigation of I.S. 95-043 and ordered the City Prosecutor to elevate the records of said case to the Office of the Regional State Prosecutor. Rabi was completely unaware of the takeover by Aurillo of the preliminary investigation of the case or the reasons therefor. Rabi learned about Aurillo’s action for the first time when he received the subpoena from the Assistant Regional State Prosecutor on January 27, 1995 setting the preliminary investigation of the case anew on February 2, 1995. Being a resident of Tacloban City, Rabi did not have adequate time to seek redress from the Secretary of Justice whose offices is located in Manila and request that the scheduled investigation be forestalled.

Given this factual milieu, time was of the essence. Inaction was not an option; it was, in fact, sheer folly. Judicial intervention was imperative. There was no need for Rabi to still wait for Aurillo to complete his preliminary investigation of I.S. No. 95-043, find probable cause against Rabi for violation of PD 1866 and file an Information against him for said crime nor wait for the issuance by the trial court of a

warrant for his arrest. If Rabi tarried, the acts sought to be assailed by him would by then have been a fait accompli to his gross prejudice, and his prayer for a writ of prohibition and for injunctive relief, an exercise in utter futility. Aurillo acted without authority and with grave abuse of discretion amounting to excess or lack of jurisdiction when he took over motu proprio the preliminary investigation of I.S. No. 95-043 and ordered a new preliminary investigation thereof; hence, his actuations were a nullity.

Aurillo’s reliance on Section 8, paragraph (b) of PD 1275 is misplaced. Said law provides that a regional state prosecutor exercises immediate administrative supervision over all provincial and city fiscals and other prosecuting officers of provinces and cities comprised within his region and prosecutes any case arising within his region.16

The "administrative supervision" which shall govern the administration relationship between a department or its equivalent and an agency under its jurisdiction is limited to the authority of such department to generally oversee the operation of the agency under it to insure that the same is managed effectively and economically, without interfering with its day-to-day activities; and to take such action as may be necessary for the proper performance of official functions, including the rectification of violations, abuses or other forms of maladministration.17 It bears stressing that in administrative law, administrative supervision is not synonymous with control. The Court distinguished supervision from control in Jose Mondano vs. Francisco Silvosa,18 thus:

"x x x In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties.

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Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. x x x."

"Supervision and control," on the other hand, includes the authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; todirect the performance of duty; and to approve, revise or modify acts and decision of subordinate officials or units.19

In Hon. Franklin Drilon, et al. vs. Mayor Alfredo S. Lim, et al.,20 the Court declared that an officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinates or he may even decide to do it himself. The Court, likewise, decreed in an avuncular case that "control" means the power of an official to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.21

In this case, when Aurillo motu proprio took over the preliminary investigation of I.S. No. 95-043 after the same had already been dismissed by the city prosecutor and ordered the assistant regional state prosecutor to conduct a preliminary investigation of the case, he exercised not only administrative supervision but control over the city prosecutor in the performance of the latter’s quasi-judicial functions

.. By doing so, Aurillo nullified the resolution of the inquest prosecutor as approved by the city prosecutor and deprived Rabi as the aggrieved party in I.S. 95-043 of his right to file a motion for the reconsideration of the resolution of the inquest prosecutor under Section 2 of Department Circular

No. 7 of the Department of Justice, as amended by Department Order No. 223,22 and if said motion were denied to appeal therefrom to the Secretary of Justice.

Aurillo threw a monkey wrench to the appeal process and deprived the Secretary of Justice of the authority to resolve any appeal by the losing party from the resolution of the city prosecutor in I.S. No. 95-043. What is so palpable and condemnable is that, Aurillo decided to conduct a preliminary investigation of the crimes for malicious mischief, violation of the Omnibus Election Code and violation of Batas Pambansa Blg. 9 without any complaint for said cases filed directly with the Office of the Regional State Prosecutor.

There is no inconsistency between Department Order No. 318 of the Secretary of Justice, PD 1275 and Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as amended; nor is Department Order No. 318 a surplusage. Section 2, Rule 112 provides that regional state prosecutors are authorized to conduct preliminary investigations of crimes committed in their territorial jurisdiction:23

"SEC. 2. Officers authorized to conduct preliminary investigation.

The following may conduct a preliminary investigation:

x x x

(c) National and Regional State Prosecutors; and

(d) Such other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction."

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As a practical matter, however, criminal complaints are filed in a proper case for preliminary investigation with the municipal trial court or with the office of the city or provincial prosecutor which has territorial jurisdiction over the offense complained of and not with the office of the regional state prosecutor. Hence, the office of the regional state prosecutor does not conduct any preliminary investigation or prosecute any criminal case in court at all. The bulk of the work of the office of the regional state prosecutor consists of administrative supervision over city or provincial or city fiscals and their assistants. The Secretary of Justice thus opted to harness the services of regional state prosecutors and help out in the investigation and prosecution of criminal cases not filed with their offices. Hence, pursuant to his power under Section 4, Chapter 1, Book IV of the 1987 Revised Administrative Code,24 and of his power of supervision and control over regional state prosecutors and provincial and city prosecutors, the Secretary of Justice issued Department Order No. 318 authorizing regional state prosecutors to investigate and/or prosecute, upon his directives, special criminal cases within the region.25 In fine, the duty of the regional state prosecutors to prosecute or investigate specific criminal cases pursuant to Department Order No. 318 is not an abridgment or curtailment of their duties or functions under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as amended, but is an additional duty specifically delegated to them by the Secretary of Justice to enhance the administration of justice. Therefore, petitioner’s contention that Department Order No. 318 is inconsistent with PD 1275 and that Section 2, Rule 112 of the 1985 Rules of Criminal Procedure is merely a surplusage has no legal basis.

We now resolve the third issue. Aurillo contends that the RTC erred when it nullified the Information filed by him charging private respondent with violation of PD 1866 after the

requisite preliminary investigation by the office of regional state prosecutor. He argues that although the RTC had issued a Temporary Restraining Order on January 30, 1995, the same had lapsed without the court issuing any preliminary injunction. There was thus no legal bar for the Office of the Regional State Prosecutor to proceed with and terminate the preliminary investigation and thereafter to file the Information against private respondent even while the petition for prohibition was still pending before the RTC. He further asserts that the remedy of Rabi was to file with the trial court a Motion to Quash the Information on the ground that the office of the regional state prosecutor had no authority to conduct a preliminary investigation and file the same.

The pendency of the special civil action for prohibition before the trial court did not interrupt the investigation in I.S. No. 95-043.26 It goes without saying, however, that in proceeding with the preliminary investigation of I.S. No. 95-043 and terminating the same, Aurillo did so subject to the outcome of the petition for prohibition. In this case, the RTC granted the petition of Rabi, declared Aurillo bereft of authority to take over the preliminary investigation of I.S. No. 95-043 and nullified the preliminary investigation conducted by Aurillo as well as the Information thereafter filed by him. The RTC is possessed of residual power to restore the parties to their status before Aurillo proceeded with the preliminary investigation, and grant in favor of the aggrieved party such other relief as may be proper.27

Jurisprudence has it that prohibition will give complete relief not only by preventing what remains to be done but by undoing what has been done. The Court has authority to grant any appropriate relief within the issues presented by the pleadings of the parties:

Generally, the relief granted in a prohibition proceeding is

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governed by the nature of the grievance proved and the situation at the time of judgment. Although the general rule is that a writ of prohibition issues only to restrain the commission of a future act, and not to undo an act already performed, where anything remains to be done by the court, prohibition will give complete relief, not only by preventing what remains to be done but by undoing what has been done. Under some statutes, the court must grant the appropriate relief whatever the proceeding is called if facts stating ground for relief are pleaded. Although prohibition is requested only as to a particular matter, the court has authority to grant any appropriate relief within the issues presented by the pleadings. If the application for prohibition is too broad, the court may mould the writ and limit it to as much as is proper to be granted. In the exercise of its jurisdiction to issue writs, the court has, as a necessary incident thereto, the power to make such incidental order as may be necessary to maintain its jurisdiction and to effectuate its final judgment. The court may retain jurisdiction of the cause to enable it to make an appropriate order in the future, even though the petition for a writ of prohibition is dismissed.28

Hence, the RTC did not commit any error in nullifying not only the preliminary investigation by the Office of the Regional State Prosecutor in I.S. No. 95-043 for want of authority but also the Information approved by Aurillo and filed with the Regional Trial Court.

On the last issue, the RTC awarded moral damages in the amount of P50,000.00, exemplary damages in the amount of P50,000.00 and P10,000.00 by way of attorney’s fees to Rabi on its finding that Aurillo wantonly disregarded the authority of the court by filing the information against Rabi despite the pendency of the latter’s petition for prohibition with said court and even without any authority from the Secretary of Justice. Aurillo asserts that the awards are

bereft of legal basis because the RTC did not issue a writ of preliminary injunction enjoining him from proceeding with the preliminary investigation of I.S. No. 95-043 and filing the Information against Rabi. He insists that the pendency of the petition for prohibition was no impediment for him to proceed with the preliminary investigation. He claims that he proceeded in good faith, without malice. Hence, the RTC is not allowed under Rule 65 of the Rules to award moral and exemplary damages to Rabi.

We agree with Aurillo.

The awards by the RTC of damages and attorney’s fees are barren of legal basis. The fact is that the RTC did not issue any writ of preliminary injunction enjoining Aurillo from proceeding with the preliminary investigation of I.S. No. 95-043. Although the RTC promised to resolve private respondent’s plea for a writ of preliminary injunction on or before February 20, 1995, it did not. Aurillo’s act of proceeding with the preliminary investigation of I.S. No. 95-043 and of filing the Information were not in disregard of the authority of the RTC, but were done in the belief that, absent any temporary restraining order or writ of preliminary injunction, he was authorized to do so.

For Rabi to be entitled as a matter or law to moral damages, he must adduce evidence that he suffered injury and establish that such injury sprung from any of the instances listed in Articles 2219 and 2220 of the New Civil Code.29 He is burdened to show proof of physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.30 In this case, Rabi failed to discharge his burden. The records show that he even failed to testify before the RTC to prove his claim for moral damages. Hence, the RTC erred in awarding moral damages to Rabi.

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Neither is Rabi entitled to exemplary damages. In National Steel Corporation vs. RTC, et al.,31 the Court held that:

xxx (1) they may be imposed by way of example in addition to compensatory damages, and only after the claimant’s right to them has been established; (2) that they cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner.

Rabi did not claim in his petition with the RTC any compensatory damages. Hence, he is not entitled to exemplary damages.

Finally, since Rabi is not entitled to moral and exemplary damages, he is not entitled to attorney’s fees.32

IN THE LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial Court granting the petition for prohibition of Rabi is AFFIRMED with MODIFICATION. The awards for moral and exemplary damages and attorney’s fees are DELETED. No costs.

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