OFFICE
OF THE OMBUDSMAN, G.R. No. 177211
Petitioner,
Present:
QUISUMBING,
J.,
Chairperson,
-
versus - CARPIO
MORALES,
TINGA,
VELASCO, JR., and
RICARDO
EVANGELISTA, BRION, JJ.
CONCEPCION MELICAN, GRACE
LIMOS
and the HON. COURT OF
APPELAS
(Sixteenth Division)
Respondents.
Promulgated:
March 13, 2009
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Tinga,
J.:
Respondents Ricardo
Evangelista, Concepcion Melican and Grace Limos (respondents) are the mayor,
municipal treasurer and accountant respectively, of Aguilar, Pangasinan.
In this
petition for certiorari and
prohibition,[1] the
Office of the Ombudsman assails the Court of Appeals’ decision[2] dated
The
facts follow.
In an
affidavit-complaint dated
In an order
dated
WHEREFORE PREMISES CONSIDERED, it is most respectfully recommended that the
request of complainant Priscilla B. Villanueva for the preventive suspension of
the respondents be GRANTED. In accordance with Section 24, R.A. No. 6770
and Section 9, Rule III of Administrative Order No. 07, respondents RICARDO
EVANGELISTA, CONCEPCION MELICAN and GRACE LIMOS are hereby PREVENTIVELY
SUSPENDED during the pendency of the case until termination, but not to
exceed the total period of four (4) months, without pay. In case of delay in
the disposition of the case due to the fault, negligence or any cause
attributable to the respondents, the period of such delay shall not be counted
in computing the period of the preventive suspension.
In accordance with Section 27, par. (1), R.A. No. 6770, this Order is immediately
executory. Notwithstanding any motion, appeal or petition that may be filed by
the respondents seeking relief from this Order, unless otherwise ordered by
this Office or by any court of competent jurisdiction, the implementation of
this Order shall be interrupted within the period prescribed. The Honorable Secretary of the Interior and
Local Government and Department of Finance are hereby directed to implement
this Order immediately upon receipt hereof, and to notify this Office within
five (5) days from said receipt of the status of said implementation.
SO ORDERED.[7]
The Ombudsman held that
the proofs submitted by Villanueva showed strong evidence of guilt, that if
duly proven the acts imputed against the respondents would constitute grave
misconduct and dishonesty and that their continued stay in office would
prejudice the fair and independent disposition of the case against them.
The suspension order was
served on respondent Evangelista on
On
The Court of
Appeals granted the petition and set aside the order of the Ombudsman. The appellate court observed that even a
cursory reading of the assailed order reveals that the requirements of R.A. No.
6770 were not complied with. It pointed out that under Section 26(2) of R.A. No.
6770, the Ombudsman is required to inform the accused of the charges; yet, the respondents
learned of the charges against them only upon receipt of the suspension order. Rejecting
the tenability of the preventive suspension order, the appellate ruled that the
documents which could possibly be tampered were beyond the reach of the respondent
as they had been kept in the custody of the Commission on Audit. In addition,
the Court of Appeals found that there was haste in ordering the suspension
since the Ombudsman signed the order prior to the Deputy Ombudsman’s
recommendation of approval.
Aggrieved
by the decision of the appellate court, the Ombudsman assails the same before
this Court via a petition for review on certiorari.
The Ombudsman claims that the order complied with the two
requirements in Section 24 of R.A. No. 6770, namely: the evidence of guilt being
strong and the charge against such officer or employee involving as it does dishonesty,
oppression or grave misconduct or neglect in the performance of duty. Furthermore,
as the function of a petition for certiorari
is to correct errors of jurisdiction, it can not include a review of the
Ombudsman’s factual findings. The Ombudsman also asserts that the reliance by
the appellate court on Section 26(2) of R.A. No. 6770 is misplaced since a
preventive suspension order has to satisfy only the requirements laid down in
Section 24 of the same law. Finally, there is ample jurisprudence supporting
the legality of a preventive suspension order issued even prior to the hearing
of the charges.
In
their defense, the respondents reiterate that they were denied due process when
they were not informed of the charges against them prior to their preventive
suspension. The irregularities concerning the SEF imputed to them are baseless,
they add. They claim that Villanueva had effected the concoction and circulation
of a bogus Special Prosecutor’s order finding them guilty of grave misconduct
and dishonesty, as well as recommending their dismissal from service. Lastly, they
assert that the re-election of Evangelista has rendered the preventive
suspension order moot and academic following the doctrine laid down in Mayor Garcia v. Hon. Mojica.[9]
The
petition is meritorious.
There is a procedural matter that must first be resolved.
Generally, to challenge appellate court decisions reversing rulings of
the Ombudsman in administrative cases, the special civil action for certiorari under Rule 65 is not the appropriate recourse. As the Ombudsman assails the appellate
court’s misapplication of the law, the proper remedy is a petition for review
on certiorari under Rule 45. Errors
of judgment committed by the appellate court are not correctible by a petition
for certiorari.[10]
Respondents, however, failed to raise
this lapse of the Ombudsman as an error. In any event, the issues raised by the
Ombudsman merit a full-blown discussion. Thus, the Court opts to adopt a
liberal construction of the Rules of Court, treating the petition for certiorari as a petition for review in order to
avert a miscarriage of justice,[11]
especially since the petition for certiorari
was filed within the fifteen-(15) day period prescribed for a petition for review
under Section 2, Rule 45 of the Rules of Court. Specifically, the petition was
filed on
Now,
on the substantive aspects.
It is the consistent and general
policy of the Court not to interfere with the Office of the Ombudsman’s
exercise of its investigatory and prosecutory powers.[12]
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.[13] It
is within the context of this well-entrenched policy that the Court proceeds to
pass upon the validity of the preventive suspension order issued by the
Ombudsman in this case.
As early as 1995, this Court ruled in
Lastimosa v. Vasquez[14] and Hagad
v. Gozo-Dadole,[15] that neither prior notice nor a hearing is
required for the issuance of a preventive suspension order. The well-settled
doctrine is solidly anchored on the explicit text of the governing law which is
Section 24 of R.A. No. 6770. The provision defines the authority of the Ombudsman to preventively
suspend government officials and employees. It reads:
SEC. 24. Preventive Suspension.—The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.
Clearly, the plain language of the above-quoted provision
debunks the appellate court’s position that the order meting out preventive
suspension may not be issued without prior notice and hearing and before the
issues are joined. Under Section 24, two requisites must concur to render the preventive
suspension order valid. The first
requisite is unique and can be satisfied in only one way. It is that in the
judgment of the Ombudsman or the Deputy Ombudsman, the evidence of guilt
is strong. The second requisite, however, may be met in three (3) different
ways, to wit: (1) that the offense charged involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (2) the charge would
warrant removal from the service; or (3) the respondent’s continued stay in
office may prejudice the case filed against him.
Undoubtedly, in this case, there is
no showing of grave abuse of discretion on the Ombudsman’s part in finding the
evidence to be strong. In issuing the preventive suspension order, the Ombudsman
considered the following: the Local Budget Preparation Form No. 151 indicating
the balance of the SEF;[16]
records from the office of the municipal account;[17] a
letter dated December 13, 2004 of Villanueva to the Municipal
Treasurer requesting clarification of the SEF balance;[18]
status of appropriation, allotment and obligation of the SEF as of December 31,
2003;[19]
SEF statement of income and expenses for 2003;[20] the letter of the municipal accountant to
Mayor Evangelista enumerating the disbursements charged to the SEF which
includes disbursements for speech kits and textbooks for 2003-2005;[21]
certifications dated February 11, 2005 issued by principals and head teachers
stating they did not receive speech kits nor text books for 2004-2005.[22]
The SEF was suddenly reduced to P343,763.30
from P783,937.60 without sufficient justification as revealed by this
Court’s evaluation of the Status of Appropriation, Allotment and Obligation as
well as the Statement of Income and Expense, both certified as correct by
respondent Limos no less.[23] Moreover,
the certifications of numerous head teachers and principals that their schools
did not receive the speech kits and textbooks are likewise strong evidence of
dishonesty and grave misconduct on the respondents’ part.[24]
This is bolstered by the fact that no disbursement was authorized by the local
school board.
In this case, the second requisite is
satisfied by two circumstances. First, the offense definitely involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty. Second,
the charge would warrant removal from the service.
Dishonesty is intentionally making a false statement in any material fact.[25] Per
the findings of the Ombudsman, there is strong evidence that private
respondents made false statements as to the status of the SEF as well as the
purchase of speech kits and textbooks. Likewise, a mayor like any other local
elective official may be removed from office for dishonesty, oppression, gross
negligence or dereliction of duty in accordance with Section 60(c) of the Local
Government Code. In regard to respondents Melican and Limos, both are members
of the civil service under Section 22, Rule XIV of the Omnibus Rules of Civil
Service, dishonesty is a grave offense punishable with dismissal even as a
first offense.
The penalty of dismissal is
reiterated in Civil Service Memorandum Circular No. 30, series of 1989,[26]
and also in Civil Service Memorandum Circular No. 19, series of 1999.[27] Section
9, Rule XIV, Section 9 of the Omnibus Rules and the aforecited circulars
likewise state that the penalty of dismissal from the service shall carry with
it cancellation of civil service eligibility, forfeiture of leave credits and
retirement benefits, and disqualification from any employment in the government
service.[28]
The appellate court strangely
juxtaposed the requisites found in Section 26 of R.A. No. 6770 governing
inquiries by the Ombudsman with those found in Section 24 of the same law. Section
24 does not require that notice of the charges against the accused must precede
an order meting out preventive suspension. While a preventive suspension order
may stem from a complaint, the Ombudsman is not required to furnish the
respondent with a copy of the complaint prior to ordering preventive
suspension. The requisites for the Ombudsman to issue a preventive suspension
order are clearly contained in Section 24 of R.A. No. 6770. The appellate court
cannot alter these requirements by insisting that the preventive suspension
order also meet the requisites found in Section 26 of the same law.
The appellate court’s stance that
there is no longer any reason for the preventive suspension of the respondents as
the pertinent documents are with the Commission on Audit likewise has no merit.
Respondents argue there is no reason for suspension pendente lite as they could no longer
tamper with the evidence. This Court found a similar argument in Bunye v. Escarreal[29] devoid of merit. We reiterate the rule
that the prosecution must be given the opportunity to gather and prepare the
facts for trial under conditions which would ensure non-intervention and noninterference
from accused's camp.[30] Similar to Section 13 of Republic Act No. 3019, Section 24 of R.A. No.
6770 emphasizes the principle that a public office is a public trust.[31] Part and parcel of this principle is a
presumption that unless the public officer is suspended, he may frustrate his
prosecution or commit further acts of malfeasance or both.[32] Relatedly, the Ombudsman has full
discretion to select which evidence it will gather and present, free from any
interference.
This
Court also holds that there was no undue haste on the Ombudsman’s part in
issuing the preventive suspension order. The fact that the Ombudsman signed the
order prior to her Deputy Ombudsman’s recommendation does not affect its
validity. A review of Section 24 of R.A. No. 6770 reveals that the
recommendation of the Deputy Ombudsman is not a condition sine qua non for the Ombudsman to issue a preventive suspension
order.
A preventive suspension is not a penalty and such
an order when issued by the Ombudsman is accorded the highest deference unless
the order violates Section 24 of R.A. No. 6770.[33]
A
final note. The preventive suspension
order insofar as Mayor Evagelista is concerned has been rendered moot and
academic. The Mayor was re-elected and proclaimed during the May 2007 elections
as evidenced by the certificate of canvass of votes and proclamation of winning
candidates for the
WHEREFORE, the petition is
partially GRANTED. The Decision dated
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES PRESBITERO J. VELASCO,
JR.
Associate
Justice Associate
Justice
ARTURO D. BRION
Associate
Justice
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, 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.
LEONARDO A.
QUISUMBING
Acting Chief Justice
[2]Justice Juan Q. Enriquez ponente, Justices Vicente S.E. Veloso and Marlene Gonzales-Sison members; id. at 28-37.
[10]Villarule v. NLRC, 348 Phil. 427 (1998); Paa v. Court of Appeals, 347 Phil. 122 (1997); Meralco v. La Campana Food Products Inc., 317 Phil. 91 (1995), Azarcon v Sandiganbayan, 268 SCRA 747 (1997); B.F. Corporation v. Court of Appeals, 351 Phil. 507 (1998); Casil v. Court of Appeals, 349 Phil. 187 (1998).
[12]Estrada v. Desierto, G.R. No. 156160,
[14]313 Phil. 358 (1995).
[28]Civil Service Commission Memorandum Circular No. 19 (1999), Sec. 58, qualifies this further: " x x x unless otherwise provided in the decision."
[33]Quimbo v.
Gervacio, G.R. No. 155620,