Republic of the
Supreme Court
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OFFICE OF THE
OMBUDSMAN. |
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G.R. No. 167982 |
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Petitioner, |
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Present: |
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YNARES-SANTIAGO, J., |
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Chairperson, |
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AUSTRIA-MARTINEZ, |
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CHICO-NAZARIO, |
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NACHURA, and |
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MERCEDITAS DE
SAHAGUN, |
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REYES, JJ. |
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MANUELA T. WAQUIZ
and |
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RAIDIS J. BASSIG, |
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Promulgated: |
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Respondents.* |
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August 13, 2008 |
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D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for
Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision[1]
dated
The material antecedents are as
follows:
On November 13, 1992, respondent Raidis J. Bassig, Chief of the
Research and Publications Division of the Intramuros
Administration, submitted a Memorandum to then Intramuros
Administrator Edda V. Henson (Henson) recommending
that Brand Asia, Ltd. be commissioned to produce a video documentary for a television
program, as well implement a media plan and marketing support services for Intramuros.
On
On
On
On
On
On November 30, 1995, Henson was
dismissed from the service by the Office of the President upon recommendation
of the PGAC which found that the contracts were entered into without the
required public bidding and in violation of Section 3 (a) and (e) of Republic
Act (R.A.) No. 3019, or the Anti-Graft and Corrupt Practices Act.
On
On September 5, 2000, Fact-Finding
Intelligence Bureau (FFIB) filed criminal and administrative charges against
respondents, along with Ferrer and Rustia, for violation of Section 3 (a) and (c) of R.A. No.
3019 in relation to Section 1 of Executive Order No. 302 and grave misconduct,
conduct grossly prejudicial to the best interest of the service and gross violation
of Rules and Regulations pursuant to the Administrative Code of 1987, docketed
as OMB-0-00-1411 and OMB-ADM-0-00-0721, respectively.[2] OMB-0-00-1411 was dismissed on
In his proposed Decision[4]
dated
However, then Ombudsman
Simeon V. Marcelo disapproved the recommendation. In an Order[5]
dated
On
On
Dissatisfied, respondents filed a
Petition for Review[8]
with the CA assailing the Orders dated
On
x x x Besides, assuming arguendo, that petitioner [Tapiador]
was administratively liable, the Ombudsman has no
authority to directly dismiss the petitioner from the government service,
more particularly from his position in the BID. Under Section 13, subparagraph
3, of Article XI of the 1987 Constitution, the Ombudsman
can only “recommend” the removal of the public official or employee found to be
at fault, to the public official concerned.[11]
(Emphasis supplied)
Hence, the present petition raising
the following issues (1) whether Section 20 (5) of R.A. No. 6770 prohibits
administrative investigations in cases filed more than one year after
commission, and (2) whether the Ombudsman only has recommendatory, not
punitive, powers against erring government officials and employees.
The Court rules in favor of the
petitioner.
The issues in the present case are
settled by precedents.
On the first issue, well-entrenched is
the rule that administrative offenses do not prescribe.[12]
Administrative offenses by their very
nature pertain to the character of public officers and employees. In
disciplining public officers and employees, the object sought is not the
punishment of the officer or employee but the improvement of the public service
and the preservation of the public’s faith and confidence in our government.[13]
Respondents insist that Section 20 (5)
of R.A. No. 6770, to wit:
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:
x
x x
(5) The complaint was filed after one year from
the occurrence of the act or omission complained of. (Emphasis supplied)
proscribes the investigation of any administrative act or
omission if the complaint was filed after one year from the occurrence of the
complained act or omission.
In Melchor
v. Gironella,[14]
the Court held that the period stated in Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to the Ombudsman
on whether it would investigate a particular administrative offense. The use of the word “may” in the provision is
construed as permissive and operating to confer discretion.[15] Where the words of a statute are clear, plain
and free from ambiguity, they must be given their literal meaning and applied
without attempted interpretation.[16]
In Filipino v. Macabuhay,[17]
the Court interpreted Section 20 (5) of R.A. No. 6770 in this manner:
Petitioner argues that based on the abovementioned
provision [Section 20(5) of RA 6770)], respondent's complaint is barred by
prescription considering that it was filed more than one year after the alleged
commission of the acts complained of.
Petitioner's argument is without merit.
The use of the word "may" clearly shows
that it is directory in nature and not mandatory as petitioner contends. When
used in a statute, it is permissive only and operates to confer discretion;
while the word "shall" is imperative, operating to impose a duty
which may be enforced. Applying Section 20(5), therefore, it is
discretionary upon the Ombudsman whether or not to conduct an investigation on
a complaint even if it was filed after one year from the occurrence of the act
or omission complained of. In fine, the complaint is not barred by prescription.[18] (Emphasis supplied)
The declaration of the CA in its
assailed decision that while as a general rule the word “may” is directory, the
negative phrase “may not” is mandatory in tenor; that a directory word, when
qualified by the word “not,” becomes prohibitory and therefore becomes
mandatory in character, is not plausible.
It is not supported by jurisprudence on statutory construction.
As the Court recently held in Office
of the Ombudsman v. Court of Appeals,[19] Section 20 of R.A.
No. 6770 has been clarified by Administrative Order No. 17,[20]
which amended Administrative Order No. 07, otherwise known as the Rules of
Procedure of the Office of the Ombudsman. Section 4, Rule III[21]
of the amended Rules of Procedure of the Office of the Ombudsman reads:
Section 4. Evaluation.
- Upon receipt of the complaint, the same shall be evaluated to
determine whether the same may be:
a) dismissed outright for any grounds stated
under Section 20 of Republic Act No. 6770, provided, however, that the
dismissal thereof is not mandatory and shall be discretionary on the part of
the Ombudsman or the Deputy Ombudsman concerned;
b) treated as a grievance/request for assistance which may be
referred to the Public Assistance Bureau, this Office, for appropriate action
under Section 2, Rule IV of this Rules;
c) referred to other disciplinary authorities under paragraph 2,
Section 23, R.A. 6770 for the taking of appropriate administrative proceedings;
d) referred to the appropriate office/agency or official for the
conduct of further fact-finding
investigation; or
e) docketed as an administrative case for the purpose of
administrative adjudication by the Office of the Ombudsman. (Emphasis supplied)
It is, therefore, discretionary upon the
Ombudsman whether or not to conduct an investigation
of a complaint even if it was filed after one year from the occurrence of the
act or omission complained of.
Thus, while the complaint herein was
filed only on
On the second issue, the authority
of the Ombudsman to determine the administrative liability of a public
official or employee, and to direct and compel the head of the office or agency
concerned to implement the penalty imposed is likewise settled.
In Ledesma
v. Court of Appeals,[22]
the Court has ruled that the statement in Tapiador
that made reference to the power of the Ombudsman to impose an
administrative penalty was merely an obiter dictum and could not be
cited as a doctrinal declaration of this Court, thus:
x x x [A] cursory reading of Tapiador reveals that the main
point of the case was the failure of the complainant therein to present
substantial evidence to prove the charges of the administrative case. The statement that made reference to the
power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient
explanation, is susceptible to varying interpretations, as what precisely is
before us in this case. Hence, it
cannot be cited as a doctrinal declaration of this Court nor is it safe from
judicial examination.[23]
(Emphasis supplied)
In Estarija
v. Ranada,[24]
the Court reiterated its pronouncements in Ledesma
and categorically stated:
x x x [T]he Constitution does not restrict the powers of the
Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the
Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770,
specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers
to sanction erring officials and employees, except members of Congress, and the
Judiciary. To conclude, we hold that
Sections 15, 21, 22 and 25 of Republic Act No. 6770 are constitutionally sound.
The powers of the Ombudsman are not
merely recommendatory. His office was given teeth to render this
constitutional body not merely functional but also effective. Thus, we hold
that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has
the constitutional power to directly remove from government service an erring
public official other than a member of Congress and the Judiciary.[25]
(Emphasis supplied)
The power of the
Ombudsman to directly impose administrative sanctions has been
repeatedly reiterated in the subsequent cases of Barillo
v. Gervasio,[26]
Office of the Ombudsman v. Madriaga,[27]
Office of the Ombudsman v. Court of Appeals,[28]
Balbastro v. Junio,[29]
Commission on Audit, Regional Office No. 13, Butuan
City v. Hinampas,[30]
Office of the Ombudsman v. Santiago,[31] Office of the Ombudsman v. Lisondra,[32]
and most recently in Deputy Ombudsman for the Visayas
v. Abugan[33] and continues to be the controlling
doctrine.
In fine, it is already well-settled
that the Ombudsman's power as regards the administrative penalty to be
imposed on an erring public officer or employee is not merely
recommendatory. The Ombudsman has
the power to directly impose the penalty of removal, suspension, demotion,
fine, censure, or prosecution of a public officer or employee, other than a
member of Congress and the Judiciary, found to be at fault, within the exercise
of its administrative disciplinary authority as provided in the Constitution, R.A.
No. 6770, as well as jurisprudence. This
power gives the said constitutional office teeth to render it not merely
functional, but also effective.[34]
Thus, the CA committed a reversible
error in holding that the case had already prescribed and that the Ombudsman
does not have the power to penalize erring government officials and employees.
WHEREFORE, the petition is GRANTED.
The Decision dated
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
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MINITA V. CHICO-NAZARIO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in
the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
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 had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S. PUNO
Chief Justice
* The
Court of Appeals is deleted from the title per Section 4, Rule 45 of the Rules
of Court.
[1] Penned
by Presiding Justice Romeo A. Brawner (now deceased)
and concurred in by Associate Justices Edgardo P.
Cruz and Jose C. Mendoza, CA rollo, p. 124.
[2] Rollo, p.
133.
[3] CA
rollo, p. 46.
[4]
[5]
[6] Rollo, p.
141.
[7] CA
rollo, p. 21.
[8]
[9] Supra
note 1.
[10] 429
Phil. 47 (2002).
[11] Tapiador v. Office of the Ombudsman, supra
note 10, at 58.
[12] Concerned
Taxpayer v. Doblada, Jr., A.M. No. P-99-1342, September 20, 2005, 470 SCRA
218; Melchor
v. Gironella, G.R. No. 151138, February 16, 2005,
451 SCRA 476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga,
420 Phil. 637, 648-649 (2001).
[13] Melchor v. Gironella, supra note 12 at 481; Remolona
v. Civil Service Commission, 414 Phil. 590, 601 (2001).
[14] Supra
note 12.
[15]
[16] Melchor v. Gironella, supra note 12, at 481; National Federation of
Labor v. National Labor Relations Commission, 383 Phil. 910, 918 (2000).
[17] G.R.
No. 158960,
[18]
[19] G.R.
No. 159395,
[20] Entitled “Amendment of Rule III,
Administrative Order No. 07,” signed by Ombudsman Simeon V. Marcelo on
[21] Procedure
in Administrative Cases.
[22] G.R.
No. 161629,
[23]
[24] G.R.
No. 159314,
[25]
[26] G.R.
No. 155088,
[27] G.R.
No. 164316,
[28] G.R.
No. 168079,
[29] G.R.
No. 154678,
[30] G.R.
No. 158672,
[31] G.R.
No. 161098,
[32] G.R.
No. 174045,
[33] G.R.
No. 168892,
[34] Office
of the Ombudsman v. Lisondra, supra note 32, at 18.