THIRD DIVISION
|
HON.
WALDO Q. FLORES, in his capacity as Senior Deputy Executive Secretary in the
Office of the President, HON. ARTHUR P. AUTEA, in his capacity as Deputy
Executive Secretary in the Office of the President, and the PRESIDENTIAL ANTI-GRAFT
COMMISSION (PAGC), Petitioners, - versus - |
G.R.
No. 170146 Present: CARPIO
MORALES, J., Chairperson, BRION, BERSAMIN,
VILLARAMA,
JR., and SERENO, JJ. |
|
ATTY. ANTONIO F.
MONTEMAYOR, Respondent. |
Promulgated: August
25, 2010 |
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DECISION
VILLARAMA,
JR., J.:
Before us is a Rule 45 petition assailing
the
The facts follow.
Respondent Atty. Antonio F. Montemayor was appointed by the
President as Regional Director II of the Bureau of Internal Revenue (BIR),
Region IV, in
On
During the pendency of the investigation,
the Philippine Center for Investigative Journalism, a media organization which had
previously published an article on the unexplained wealth of certain BIR
officials, also submitted to the PAGC copies of Montemayor’s SSAL for the years
1999, 2000 and 2001.[6]
In Montemayor’s 1999 and 2000 SSAL, the
PAGC noted that Montemayor declared his ownership over several motor vehicles, but
failed to do the same in his 2001 SSAL.[7]
On the basis of the said documents, the
PAGC issued a Formal Charge[8]
against Montemayor on May 19, 2003 for violation of Section 7 of Republic
Act (RA) No. 3019[9]
in relation to Section 8 (A) of RA No. 6713[10]
due to his failure to declare the 2001 Ford Expedition with a value ranging
from 1.7 million to 1.9 million pesos, and the 1997 Toyota Land Cruiser with an
estimated value of 1 million to 1.2 million pesos in his 2001[11]
and 2002[12] SSAL. The charge
was docketed as PAGC-ADM-0149-03. On the same date, the PAGC issued an Order[13]
directing Montemayor to file his counter-affidavit or verified answer to the
formal charge against him within ten (10) days from the receipt of the Order.
Montemayor, however, failed to submit his counter-affidavit or verified answer
to the formal charge lodged against him.
On
On
On
After a circumspect study of the case, this Office fully agrees with the recommendation of PAGC and the legal premises as well as the factual findings that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his failure, but he opted to let the opportunity pass by.
WHEREFORE, premises considered, respondent Antonio F. Montemayor is hereby found administratively liable as charged and, as recommended by PAGC, meted the penalty of dismissal from the service, with all accessory penalties.
SO ORDERED.[18]
Montemayor
sought reconsideration of the said decision.[19]
This time, he argued that he was denied his right to due process when the PAGC
proceeded to investigate his case notwithstanding the pendency of his petition
for certiorari before the CA,
and its subsequent elevation to the Supreme Court.[20]
The motion was eventually denied.[21]
Aggrieved, Montemayor brought the matter to the CA via a petition for review[22]
under Rule 43 of the 1997 Rules of Civil Procedure, as amended. He made the following assertions: first, that the PAGC exceeded its
authority when it recommended that he be dismissed from government service
since the power to investigate does not necessarily carry with it the power to
impose penalty unless the same was expressly granted; second, that the PAGC grossly violated his right to due process of
law when it did not give him the opportunity to present his countervailing
evidence to the charges against him; third,
that the PAGC cannot validly proceed with the investigation of the charges
against him on the basis of an unverified anonymous letter-complaint without any
supporting documents attached thereto, contrary to the requirement of Section 4
(c) of Executive Order (EO) No. 12;[23]
fourth, that it was an error for the
Office of the President to hold him liable for violation of Section 7 of RA No.
3019 and Section 8 (A) of RA No. 6713 since the SSAL should reflect
assets and liabilities acquired in the preceding year; and fifth, that the assailed PAGC Resolution was not supported by
substantial evidence.
As aforesaid, the CA in its assailed Decision dated
Hence, petitioners now appeal the matter before us raising
the following issues:
I. WHETHER PETITIONER PAGC HAD A CONSTITUTIONAL DUTY TO ACCORD RESPONDENT A “SECOND” OPPORTUNITY TO PRESENT EVIDENCE IN PAGC-ADM-0149-03 AFTER THE EXPIRATION OF THE TRO ISSUED IN CA-G.R. SP NO. 77285.
II. WHETHER THE MERE PENDENCY OF CA-G.R. SP NO. 77285 WAS A LEGAL GROUND FOR RESPONDENT’S REFUSAL TO PRESENT EVIDENCE IN [PAGC]-ADM-0149-03.
III. WHETHER THE ALLEGED UNDUE HASTE AND APPARENT PRECIPITATION OF PROCEEDINGS IN [PAGC]-ADM-0149-03 HAD RENDERED THE SAME INFIRM.
IV.
WHETHER
RESPONDENT HAD COMMITTED A MAJOR ADMINISTRATIVE INFRACTION WARRANTING DISMISSAL
FROM [GOVERNMENT] SERVICE.
V. WHETHER THE [OFFICE OF THE PRESIDENT’S] DETERMINATION THAT RESPONDENT COMMITTED THE ADMINISTRATIVE OFFENSE CHARGED IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
VI. WHETHER THE PAGC HAD AUTHORITY TO RECOMMEND TO THE PRESIDENT THE PENALTY OF DISMISSAL, FOLLOWING ITS INVESTIGATION INITIATED BY AN ANONYMOUS COMPLAINT, AND DESPITE THE PENDENCY OF ANOTHER INVESTIGATION FOR THE SAME OFFENSE BEFORE THE [OFFICE OF THE] OMBUDSMAN.[24]
The issues may be summarized as follows:
I.
WHETHER RESPONDENT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS
WHEN IT PROCEEDED TO INVESTIGATE HIM ON THE BASIS OF AN ANONYMOUS COMPLAINT,
AND ALLEGEDLY WITHOUT AN
II. WHETHER THE PAGC HAS THE AUTHORITY TO RECOMMEND RESPONDENT’S DISMISSAL FROM THE SERVICE;
III. WHETHER THE ASSUMPTION BY THE OFFICE OF THE OMBUDSMAN OF ITS JURISDICTION TO INVESTIGATE RESPONDENT FOR THE SAME OFFENSE DEPRIVED THE PAGC [WITH ITS JURISDICTION] FROM PROCEEDING WITH ITS INVESTIGATION; AND
IV. WHETHER THE PAGC’S RECOMMENDATION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.
We discuss the first three (3) issues jointly as these involve
procedural aspects.
The PAGC was created by virtue of EO No. 12, signed on
Respondent contends that he was deprived of his right to due
process when the PAGC proceeded to investigate him on the basis of an anonymous
complaint in the absence of any documents supporting the complainant’s
assertions.
Section 4 (c) of EO No. 12, however,
states that the PAGC has the power to give due course to anonymous complaints
against presidential appointees if there appears on the face of the complaint
or based on the supporting documents attached to the anonymous complaint a
probable cause to engender a belief that the allegations may be true.[26]
The use of the conjunctive word “or” in the said provision is determinative
since it empowers the PAGC to exercise discretion in giving due course to
anonymous complaints. Because of the said provision, an anonymous complaint may
be given due course even if the same is without supporting documents, so long
as it appears from the face of the complaint that there is probable cause. The
clear implication of the said provision is intent to empower the PAGC in line
with the President’s objective of eradicating corruption among a particular
line of government officials, i.e.,
those directly appointed by her. Absent the conjunctive word “or,” the PAGC’s
authority to conduct investigations based on anonymous complaints will be very
limited. It will decimate the said
administrative body into a toothless anti-corruption agency and will inevitably
undermine the Chief Executive’s disciplinary power.
Respondent also assails the PAGC’s decision to proceed with
the investigation process without giving him the opportunity to present
controverting evidence.
The argument is without merit.
We find nothing irregular with the PAGC’s decision to proceed with its
investigation notwithstanding the pendency of Montemayor’s petition for certiorari before the CA. The filing of
a petition for certiorari with
the CA did not divest the PAGC of its jurisdiction validly acquired over the
case before it. Elementary is the rule that
the mere pendency of a special civil action for certiorari, commenced in
relation to a case pending before a lower court or an administrative body such
as the PAGC, does not interrupt the course of the latter where there is no writ
of injunction restraining it.[27]
For as long as no writ of injunction or restraining order is issued in the
special civil action for certiorari, no impediment exists, and nothing
prevents the PAGC from exercising its jurisdiction and proceeding with the case
pending before its office.[28]
And even if such injunctive writ or order is issued, the PAGC continues to
retain jurisdiction over the principal action[29]
until the question on jurisdiction is finally determined.
In the case at bar, a sixty (60)-day TRO was issued by the
CA in CA-G.R. SP No. 77285. However, barely a week after the lapse of the TRO,
the PAGC issued its resolution finding Montemayor administratively liable and
recommending to the Office of the President his dismissal from government
service. The CA believes that there has been “undue haste and apparent
precipitation” in the PAGC’s investigation proceedings.[30]
It notes with disapproval the fact that it was barely eight (8) days after the
TRO had lapsed that the PAGC issued the said resolution and explains that
respondent should have been given a second chance to present evidence prior to
proceeding with the issuance of the said resolution.[31]
We beg to disagree with the appellate court’s observation.
First, it must be remembered that the PAGC’s act of issuing
the assailed resolution enjoys the presumption of regularity particularly since
it was done in the performance of its official duties. Mere surmises and
conjectures, absent any proof whatsoever, will not tilt the balance against the
presumption, if only to provide constancy in the official acts of authorized
government personnel and officials. Simply put, the timing of the issuance of
the assailed PAGC resolution by itself cannot be used to discredit, much less nullify,
what appears on its face to be a regular performance of the PAGC’s duties.
Second, Montemayor’s argument, as well as the CA’s
observation that respondent was not afforded a “second” opportunity to present
controverting evidence, does not hold water. The essence of due process in
administrative proceedings is an opportunity to explain one’s side or an
opportunity to seek reconsideration of the action or ruling complained of.[32]
So long as the party is given the
opportunity to explain his side, the requirements of due process are
satisfactorily complied with.[33]
Significantly, the records show that the PAGC issued an
order informing Montemayor of the formal charge filed against him and gave him ten
(10) days within which to present a counter-affidavit or verified answer.[34]
When the said period lapsed without
respondent asking for an extension, the PAGC gave Montemayor a fresh ten (10)-day
period to file his answer,[35]
but the latter chose to await the decision of the CA in his petition for certiorari.[36]
During the preliminary conference, Montemayor was again informed that he is
given a new ten (10)-day period, or until June 19, 2003 within which to file
his memorandum/position paper as well as supporting evidence with a warning
that if he still fails to do so, the complaint shall be deemed submitted for
resolution on the basis of available documentary evidence on record.[37]
Again, the deadline lapsed without any evidence being presented by Montemayor
in his defense.
We stress that the PAGC’s findings and recommendations
remain as recommendations until finally acted upon by the Office of the
President. Montemayor, therefore, had two (2) choices upon the issuance of the
PAGC resolution: to move for a reconsideration thereof, or to ask for another
opportunity before the Office of the President to present his side particularly
since the assailed resolution is merely recommendatory in nature. Having failed
to exercise any of these two (2) options, Montemayor cannot now be allowed to
seek recourse before this Court for the consequences of his own shortcomings.
Desperately,
Montemayor contends that the authority of the PAGC to investigate him
administratively, as well as the power of the Office of the President to act on
the PAGC’s recommendation, had already ceased following the initiation and
filing of the administrative and criminal cases against him by the Office of
the Ombudsman (Ombudsman).[38]
He points out that the Ombudsman is mandated by Section 15, paragraph (1) of RA
No. 6770[39] to take over the
investigation and prosecution of the charges filed
against
him.[40]
We are still not persuaded.
The cases filed against respondent before the Ombudsman were initiated after the Office of the President decided to dismiss Montemayor.[41] More importantly, the proceedings before the PAGC were already finished even prior to the initiation and filing of cases against him by the Ombudsman. In fact, it was the PAGC’s findings and recommendations which served as the basis in the Office of the President’s decision to dismiss Montemayor from government service. Clearly then, the exercise by the Office of the President of its concurrent investigatory and prosecutorial power over Montemayor had already been terminated even before the Ombudsman could take cognizance over the matter. The Ombudsman, therefore, cannot take over a task that is already a fait accompli.
As to the substantive aspect, i.e., whether the PAGC’s recommendation
to dismiss Montemayor from government service is supported by substantial
evidence, we find in favor of petitioners.
Montemayor’s argument that he did not
deliberately omit to declare the 2001 Ford Expedition in his 2001 SSAL and the
1997 Toyota Land Cruiser in his 2001 and 2002 SSAL fails to persuade us. Even
if a motor vehicle was acquired through chattel mortgage, it is a government
employee’s ethical and legal obligation to declare and include the same in his SSAL.
Montemayor cannot wiggle his way out of the mess he has himself created since
he knows for a fact that every asset acquired by a civil servant must be declared
in the SSAL. The law requires that the SSAL be accomplished truthfully and in
detail without distinction as to how the property was acquired. Montemayor,
therefore, cannot escape liability by arguing that the ownership of the 2001
Ford Expedition has not yet passed to him on the basis of a lame excuse that the
said vehicle was acquired only on installment basis sometime on
Montemayor also argues that even if
ownership of the said vehicle had been transferred to him upon acquisition, the
vehicle was sold to another person on P1,599,000.00[44]
is significantly greater than the amount declared by Montemayor under “machinery/equipment,”
worth P1,321,212.50, acquired by him as of December 31, 2001,[45]
and to the P1,251,675.00 worth of “machinery/ equipment” acquired by him
as of December 31, 2002.[46]
This belies Montemayor’s claim that the
said vehicle has been included among the “machinery/equipment” assets he
declared in his 2001 and 2002 SSAL.[47]
Neither did Montemayor satisfactorily reflect the P1,000,000.00 that has
come to his hands as payment for the alleged sale of his 2001 Ford Expedition
in his 2002 SSAL.[48]
Respondent apparently fails to understand
that the SSAL is not a mere scrap of paper.
The law requires that the SSAL must be accomplished as truthfully, as
detailed and as accurately as possible. The filing thereof not later than the
first fifteen (15) days of April at the close of every calendar year must not
be treated as a simple and trivial routine, but as an obligation that is part
and parcel of every civil servant’s duty to the people. It serves as the basis
of the government and the people in monitoring the income and lifestyle of officials
and employees in the government in compliance with the Constitutional policy to
eradicate corruption,[49]
promote transparency in government,[50]
and ensure that all government employees and officials lead just and modest
lives.[51]
It is for this reason that the SSAL must be sworn to and is made accessible to
the public, subject to reasonable administrative regulations.
Montemayor’s repeated and consistent failure to reflect truthfully
and adequately all his assets and liabilities in his SSAL betrays his claim of
innocence and good faith. Accordingly, we find that the penalty of dismissal
from government service, as sanctioned by Section 11 (a) and (b) of RA No. 6713,[52]
meted by the Office of the President against him, is proper.
WHEREFORE, the petition is GRANTED. The assailed Decision dated
October 19, 2005 of the Court of Appeals
in CA-G.R. SP No. 84254 is REVERSED and SET ASIDE. Accordingly, the
Respondent
Atty. Antonio F. Montemayor is hereby DISMISSED
from government service.
SO ORDERED.
|
|
MARTIN S. VILLARAMA, JR. Associate Justice |
WE
CONCUR: CONCHITA CARPIO MORALES Associate Justice Chairperson |
|
|
ARTURO D. BRION Associate Justice |
LUCAS P. BERSAMIN Associate Justice |
|
MARIA Associate Justice |
|
A T T E S T A T I O N
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.
|
|
CONCHITA CARPIO MORALES Associate Justice Chairperson, Third
Division |
C E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the 1987 Constitution and the Division
Chairperson’s Attestation, I certify 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.
|
|
RENATO C. CORONA Chief Justice |
[1] Rollo, pp. 56-67. Penned by Associate Justice Rosmari D. Carandang, with Associate Justice (now Presiding Justice) Andres B. Reyes, Jr. and Associate Justice Monina Arevalo-Zenarosa concurring.
[2]
[3]
[4]
[5] CA rollo, pp. 73-74.
[6]
[7]
[8] Rollo, p. 71.
[9] Section 7 of RA No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, provides in full:
SEC. 7. Statement of Assets and Liabilities. – Every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or Chief of an independent office, with the Office of the President, a true, detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their first statement on or before the fifteenth day of April following the close of the said calendar year.
[10] Section 8 (A) of RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, as amended, provides in part:
SEC. 8. Statements and Disclosure. – Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, the assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.
(A) Statement of Assets and Liabilities and Financial Disclosure. – All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.
x x x x
All public officials and employees required under this section to file the aforestated documents shall also execute within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman, to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible the year when they first assumed any office in the Government.
[11] CA rollo, p. 72.
[12]
[13]
[14] Docketed as CA-G.R. SP No. 77285. See CA rollo, pp. 53-66.
[15] CA rollo, pp. 83-85.
[16]
[17] In PAGC-ADM-0149-03. See rollo, pp. 72-85.
[18] Rollo, p. 90.
[19] CA rollo, pp. 35-45.
[20] Docketed as G.R. No. 160443. The said
petition for review on certiorari was eventually dismissed through a minute
Resolution dated
[21] Rollo, pp. 92-93.
[22] CA rollo, pp. 4-26.
[23] Section 4 (c) of EO No. 12, series of 2001, entitled “Creating the Presidential Anti-Graft Commission and Providing for its Powers, Duties and Functions and for Other Purposes,” provides:
SECTION 4. Jurisdiction, Powers and Functions. –
x x x x
(c) Anonymous complaints against a presidential appointee shall not be given due course unless there appears on its face or the supporting documents attached to the anonymous complaint a probable cause to engender a belief that the allegations may be true.
[24] Rollo, pp. 233-234.
[25] Section 4 (b) of EO No. 12, series of 2001, provides in full:
SECTION 4. Jurisdiction, Powers and Functions. –
x x x x
(b) The Commission, acting as a collegial body,
shall have the authority to investigate or hear administrative cases or
complaints against all presidential appointees in the government and any of its
agencies or instrumentalities (including members of the governing board of any
instrumentality, regulatory agency, chartered institution and directors or
officers appointed or nominated by the President to government-owned or
controlled corporations or corporations where the government has a minority
interest or who otherwise represent the interests of the government), occupying
the position of assistant regional director, or an equivalent rank, and higher,
otherwise classified as Salary Grade “26” and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758). In the same
manner, the Commission shall have jurisdiction to investigate a
non-presidential appointee who may have acted in conspiracy or may have been
involved with a presidential appointee or ranking officer mentioned in this
subsection. The Commission shall have no jurisdiction over members of the Armed
Forces of the
[26] Supra note 23.
[27]
[28]
[29]
[30] Rollo, p. 62.
[31]
[32] Arboleda
v. National Labor Relations Commission, G.R. No. 119509,
[33] Calma v. Court of Appeals, G.R. No.
122787,
[34] Rollo, pp. 132-133.
[35]
[36]
[37]
[38] Docketed as OMB-C-A-04-0096-C and OMB-C-C-04-0084-C.
[39] Paragraph (1) of Section 15 of RA No. 6770, otherwise known as the Ombudsman Act of 1989, provides in part:
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;
x x x x
[40] Rollo, pp. 182-183.
[41]
[42]
[43]
[44]
[45] CA rollo, p. 72 and unnumbered reverse page.
[46] Supra note 12.
[47]
[48] Rollo, p. 130; CA rollo, pp. 91-92.
[49] Section 27, Art. II of the 1987 Constitution provides in full:
SEC. 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
[50] Section 28, Art. II of the 1987 Constitution provides in full:
SEC. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
[51] Section 1, Art. XI of the 1987 Constitution provides in full:
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
[52] Section 11 of RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, as amended, provides in full:
SEC. 11. Penalties. – (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity committing any violation of this Act, shall be punished with a fine not exceeding the equivalent of six (6) months salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000.00) or both, and in the discretion of the court of competent jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.
x x x x