THIRD
DIVISION
|
NEMESIO
M. CALIM,
Petitioner, - versus - THE HONORABLE JESUS F. GUERRERO, THE HONORABLE EMILIO A. GONZALEZ III,
THE HONORABLE ADORACTION A. AGBADA, in their respective capacities as Deputy
Ombudsman for Luzon, Director and Graft Investigation Officer II, THE
HONORABLE ROBERTO J. ACOBA, Vice-Mayor, Siniloan, Laguna, PAUL SIMON Z. GO,
HOMER R. SERRANO, FELIPE A. EM, ELIGIO R. DE LEON, FELIPE V. CASTRO,
GAUDENCIO C. SALAY, ANDRES V. QUINTERO, HECTOR A. MANEJA, SEDFREY B. REALEZA,
all members of the Sangguniang Bayan, Siniloan, Laguna, Respondents.** |
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G.R. No. 156527 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CALLEJO, SR.,*
CHICO-NAZARIO, and NACHURA, JJ. Promulgated: |
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Before
Us is a Petition for Mandamus seeking
to compel public respondents to file the appropriate information against the
private respondents for violation of Section 5(a)[1] of
Republic Act No. 6713,[2]
otherwise known as the Code of Conduct and Ethical Standards for Public
Officials and Employees.
The
relevant antecedents follow:
Petitioner
Nemesio M. Calim operates Eastern
Laguna Tours and Tourist Services in Siniloan, Laguna. Private respondent Roberto J. Acoba was the Vice-Mayor of Siniloan,
Laguna. On the other hand, private
respondents Paul Simon Z. Go, Homer R. Serrano, Felipe A. Em,
Eligio R. de Leon, Felipe V. Castro, Gaudencio C. Salay, Andres V.
Quintero, Hector A. Maneja, and Sedfrey
B. Realeza were councilors of the Sangguniang Bayan of
Siniloan, Laguna.
On
Petitioner alleged, inter alia, that
on or about
He further alleged that on
Petitioner averred that the
recommendation of the Sangguniang Bayan of Siniloan, Laguna, to cancel his municipal license and
permit resulted in the cancellation of various service contracts bringing about
a loss of P3,000.00 per day. He
alleged further that on
On
Meanwhile, private respondents
Vice-Mayor Roberto J. Acoba, Paul Simon Go, Gaudencio Salay and Andres
Quintero filed a Rejoinder,[8]
averring similar arguments as raised in the Counter-Affidavit previously filed
by their co-private respondents. Reiterating
their prayer that the Complaint against them be dismissed for utter lack of
merit, they maintained that their action taken as members of the Sangguniang Bayan of
Siniloan, Laguna, in recommending the cancellation of
the mayor’s permit granted to petitioner was a product of due deliberation and
investigation.[9] They insisted that petitioner failed to prove
that he was authorized to engage as a common carrier to offer daily tours to
Metro Manila and
After an exchange of pleadings
between the parties, the Office of the Deputy Ombudsman for
The decretal portion of the
WHEREFORE,
premises considered, the undersigned respectfully recommends that the instant
complaint be DISMISSED for lack of probable cause.[13]
Petitioner filed a Motion for
Reconsideration thereon. He assigned as
error the omission of the
On
Anent
the first ground invoked in the motion for reconsideration, We submit that this
Office has committed a reversible error in not taking into consideration the
charge for violation of Section 5 (a) of Republic Act No. 6713 as contained in
the complaint-affidavit. The complaint
is anchored on the alleged failure of the respondents to respond to the
The dispositive
portion of the Joint Order of
WHEREFORE, premises considered, it is respectfully recommended that that the subject two Motions for Reconsideration dated September 10 and 11, 2002 filed by the complainant be denied for lack of merit. However, concerning the failure of the herein respondents to respond to the complainant’s letter, they are hereby admonished to be more circumspect in the performance of their duties with stern warning that repetition of the same act shall be dealt with more severely in the future.[16]
Aggrieved,
petitioner filed the instant Petition for Mandamus,
seeking to compel the public respondents to file the appropriate information for
violation of Section 5(a) of Republic Act No. 6713, against private respondents
Sangguniang Bayan
members of Siniloan, Laguna.
The
Office of the Solicitor General filed its Comment,[17]
dated
Petitioner
relies on the following grounds for the allowance of the Petition, viz:
I
THE PUBLIC RESPONDENTS
UNLAWFULLY NEGLECTED TO PERFORM AN ACT WHICH THE LAW SPECIFICALLY ENJOINS AS A
DUTY RESULTING FROM AN OFFICE; and
II
THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURT OF LAW.[18]
Petitioner’s bone of contention is
that since the private respondents were found by public respondent Office of
the Deputy Ombudsman for Luzon to have committed a violation of Section 5 (a)
of Republic Act No. 6713, that is, by failing to respond to his letter of
inquiry within fifteen (15) working days from receipt thereof, they should be
punished with a fine not exceeding the equivalent of six (6) months’ salary or
suspension not exceeding one (1) year, or removal depending on the gravity of
the offense after due notice and hearing by the appropriate body or agency, as
prescribed in Section 11[19]
of the same Act. Hence, petitioner
submits that the public respondents should have filed the proper information
with the proper court for the criminal violation by private respondents of the
aforesaid Section 5(a) of Republic Act No. 6713. Otherwise stated, petitioner theorizes that
public respondents can be compelled by a writ of mandamus to file a criminal information against the private
respondents for their violation, instead of merely admonishing them, as it did
in the assailed Joint Order of
We dismiss the Petition.
It is elementary that mandamus applies as a remedy only where
petitioner’s right is founded clearly on law and not when it is doubtful.[20] In
varying language, the principle echoed and reechoed is that legal rights may be
enforced by mandamus only if those
rights are well-defined, clear and certain.[21] A writ of mandamus
can be issued only when petitioner’s legal right to the performance of a
particular act which is sought to be compelled is clear and complete. [22] A clear legal right is a right which is
indubitably granted by law or is inferable as a matter of law.[23] Mandamus,
therefore, is employed to compel the performance, when refused, of a
ministerial duty, this being its chief use and not a discretionary duty.[24]
Mandamus will
not issue to control or review the exercise of discretion of a public officer
where the law imposes upon said public officer the right and duty to exercise
his judgment in reference to any matter in which he is required to act.[25] It is his judgment that is to be exercised
and not that of the court.[26]
Essentially, what petitioner attacks
in the instant Petition for Mandamus
is the order of the Office of the Deputy Ombudsman for
Herein, petitioner was not able to
establish his entitlement to a writ of mandamus. Petitioner fails to demonstrate that he has a
clear legal right to compel the public respondents to file a criminal
information against the private respondents.
Settled is the rule that the Supreme Court will not interfere with the
Ombudsman’s exercise of his investigatory and prosecutory
powers without good and compelling reasons to indicate otherwise.[27] Said exercise of powers is based upon his constitutional
mandate[28]
and the courts will not interfere in its exercise.[29] Courts have upheld the wide latitude of
investigatory and prosecutorial powers that the Ombudsman enjoys; and such
powers are virtually free from executive, legislative or judicial intervention.[30] The rationale of this rule is based not only
upon respect for the investigatory and prosecutory
powers that the Office of the Ombudsman is granted under the present
Constitution,[31] but
upon practicality as well; otherwise, the functions of the courts would be
perilously bound by numerous petitions assailing the result of the
investigatory proceedings conducted by the Office, in much the same way that
the courts would be saturated if compelled to review the prosecutors’ exercise
of discretion each time they decide to file an information or dismiss a
complaint.[32] The discretion to prosecute or dismiss a
complaint filed before it is lodged in the Office of the Ombudsman itself. To compel the Ombudsman to further pursue a
criminal case against the private respondents, as petitioner would have it, is
outside the ambit of the courts.
Corollarily, Section 2, Rule II of the Rules of
Procedure of the Office of the Ombudsman which runs:
SEC. 2. Evaluation. – Upon evaluating the complaint, the investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
and is reinforced by Section 3, Rule
III of the same Rules, hereby quoted:
SEC. 3. How initiated. – An administrative case may be initiated by a written complaint under oath accompanied by affidavits of witnesses and other evidences in support of the charge. An administrative proceeding may also be ordered by the Ombudsman or the respective Deputy Ombudsman on his initiative or on the basis of a complaint originally filed as a criminal action or a grievance complaint or request for assistance.
clearly provides the Office of the
Ombudsman with wide latitude of discretion in determining what and which acts
to prosecute criminally and/or administratively. In the instant case, the Office of the Deputy
Ombudsman opted, based on the evidence on hand, to only administratively
admonish the private respondents, a penalty which is in fine tune with the
mandate of Rule IV, Section 52 (C) (13) of the Uniform Rules on Administrative
Cases in the Civil Service,[33]
which provides:
SEC. 52. Classification of Offenses. – Administrative offenses with corresponding penalties are classified into grave, less grave or light, depending on their gravity or depravity and effects on the government service.
x x x x
C. The following are light offenses with corresponding penalties:
x x x x
13. Failure to act
promptly on letters and requests within fifteen (15) days from receipt, except
as otherwise provided in the rules implementing the code of conduct and ethical
standards for public officials and employees: Ist Offense > Reprimand; 2nd
Offense > Suspension for one (1) to thirty (30) days; 3rd Offense > Dismissal.
A graver reason that impels this
court to reject petitioner’s plea is the mode taken by petitioner in elevating
the case to this court. In the case of Fabian v. Desierto,[34] this court ruled that appeals, if availing,[35]
from decisions of the Office of the Ombudsman in administrative disciplinary
cases should be brought to the Court of
Appeals under the provisions of Rule 43[36]
of the Rules of Court. In Lanting v. Ombudsman,[37] we underscored the catena of cases subsequent
to the Fabian ruling, thus:
In Fabian v. Desierto,
we held that only “appeals from the decisions of the Office of the
Ombudsman in administrative disciplinary cases
should be taken to the Court of Appeals under
the provisions of Rule 43 (of the 1997 Revised Rules of Civil Procedure).” We reiterated this ruling in Namuhe vs. Ombudsman and recently in Barata vs. Abalos, Jr. and
Coronel vs. Aniano Desierto, as Ombudsman, and Pedro Sausal,
Jr.[38]
There is, verily, a limited
applicability of this court’s pronouncement in Fabian. The Fabian
ruling does not extend to orders or decisions of the Ombudsman in criminal
cases. Kuizon v. Ombudsman[39] and
Mendoza-Arce v.
Office of the Ombudsman (Visayas),[40] instructed
that petitions for certiorari questioning
the Ombudsman’s orders or decisions in criminal cases should be filed in the
Supreme Court and not the Court of Appeals.[41] This is the prevailing rule.[42] The
Office of the Deputy Ombudsman, in admonishing the private respondents, deemed
the matter to be one in the nature of an administrative disciplinary case. The petitioner, in filing the instant Petition
for Mandamus before this Court, took
a route that is antagonistic to prevailing rules and jurisprudence.
WHEREFORE, under
the foregoing premises, the instant
Petition for Mandamus is DISMISSED. Costs against petitioner.
SO ORDERED.
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|
MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
ATTESTATION
I attest that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson,
Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO
S. PUNO
Chief Justice
* On leave.
** The name Noel M. Laberinto which was included as a party in the proceedings below was omitted by the petitioner in his Petition for Mandamus.
[1] Section 5. Duties of Public Officials and Employees. – In the performance of their duties, all public officials and employees are under obligation to:
(a) Act promptly on letters and
requests – All public officials and employees shall, within fifteen (15)
working days from receipt thereof, respond to letters, telegrams or other means
of communications sent by the public.
The reply must contain the action taken on the request.
[2] Its full title reads, AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS AND TRANSACTION AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF AND FOR OTHER PURPOSES.
[3] OMB rollo, pp. 1-9.
[4] Sec. 3. – Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
(e) Causing any undue injury to any party,
including the Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations
charged with the grant of licenses or permits or other concessions.
[5] Also referred to as Resolution No. 81, Series of 2001 elsewhere in the pleadings.
[6] Section 5. Duties of Public Officials and Employees. – In the performance of their duties, all public officials and employees are under obligation to:
(a) Act promptly on letters and requests – All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request.
[7] OMB rollo, pp. 177-181.
[8]
[9]
[10] The Resolution was with the recommending approval of Director Emilio A. Gonzalez III, CESO III.
[11] OMB rollo, pp. 233-237.
[12]
[13]
[14] The Joint Order was issued by Graft
Investigator Officer II Adoracion A. Agbada; approved authority of Deputy Ombudsman for Luzon
Jesus F. Guerrero and Director Emilio A. Gonzalez III, CESO III; id. at
252-255.
[15]
[16]
[17] Filed thru Solicitor General Alfredo
L. Benipayo; rollo, pp. 63-70.
[18]
[19] Section 11. Penalties. - (a) Any public
official or employee, regardless of whether or not he holds office or
employment in a casual, temporary, holdover, permanent or regular capacity,
committing any violation of this Act shall be punished with a fine not
exceeding the equivalent of six (6) months’ salary or suspension not exceeding
one (1) year, or removal depending on the gravity of the offense after due
notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier
penalty under another law, he shall be prosecuted under the latter
statute. Violations of Sections 7, 8 or
9 of this Act shall be punishable with imprisonment not exceeding five (5)
years, or a fine not exceeding five thousand pesos (P5,000), or both,
and, in the discretion of the court of competent jurisdiction, disqualification
to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.
(c) Private individuals who participate in conspiracy as co-principals, accomplices or accessories, with public officials or employees, in violation of this Act, shall be subject to the same penal liabilities as the public officials or employees and shall be tried jointly with them.
(d) The official or employee concerned may bring an action against any
person who obtains or uses a report for any purpose prohibited by Section 8 (D)
of this Act. The Court in which such
action is brought may assess against such person person
or penalty in any amount not to exceed twenty-five thousand pesos (P25,000.00). If another sanction hereunder or under any
other law is heavier, the latter shall apply.
[20] Manalo v. PAIC Savings Bank, G.R
No. 146531,
[21]
[22]
[23]
[24] Olan v. Court of Appeals, 373 Phil. 46, 55 (1999).
[25] Knecht v. Desierto, 353 Phil. 494, 503 (1998).
[26]
[27] Esquivel
v. Hon. Ombudsman, 437 Phil. 702, 711 (2002), citing Venus v. Desierto, G.R. No. 130319, 21
October 1998, 298 SCRA 196, 214.
[28]
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.
x x x x
(8) Promulgate its rules of procedure and exercise such other
powers or perform such functions or duties as may be provided by law.
[29] Supra note 29. The court in Esquivel added:
The rule is based not only upon
respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman, but upon
practicality as well. Otherwise, innumerable
petitions seeking dismissal of investigatory proceedings conducted by the
Ombudsman will grievously hamper the functions of the office and the courts, in
much the same way that courts will be swamped if they had to review the
exercise of discretion on the part of public prosecutors each time they decided
to file an information or dismiss a complaint by a private complainant.
[30] Villanueva
v. Ople, G.R. No. 165125,
[31] Supra note 30.
[32] Fuentes,
Jr. v. Office of the Ombudsman, G.R. No. 164865,
[33] Also referred to as Resolution No. 99-1936 of the Civil Service Commission.
[34] 356 Phil. 787 (1998).
[35] Section
7, Rule III of Administrative Order No. 7, provides:
SEC.
7. Finality of decision. – Where the
respondent is absolved of the charge, and in case of conviction where the
penalty imposed is public censure or reprimand, suspension of not more than one
month or a fine equivalent to one month
salary, the decision shall be final and unappealable. In all other cases, the decision shall become
final after the expiration of ten (10) days from receipt thereof by the
respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him
as prescribed in Section 27 of RA 6770;
Admonition is an even lower imposition in the tier of
administrative penalties.
[36] APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS.
[37] G.R. No. 141426,
[38]
[39] G.R. Nos. 140619-24,
[40] 430 Phil. 101 (2002).
[41] Perez
v. Office of the Ombudsman, G.R. No. 131445,
[42]