Intervention of the offended party in criminal action

Sec. 16. Intervention of the offended party in criminal action.—Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense.

GENERAL RULE: Offended party has the right to intervene by counsel in the prosecution of the criminal action, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111.

EXCEPTIONS:

1) When from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party, and;

2) Where the offended party has WAIVED his right to civil indemnity or has expressly RESERVED his right to institute a civil action or has already INSTITUTED said action.

● The reason of the law in not permitting the offended party to intervene in the prosecution of a criminal case, if he has waived his right to institute a civil action arising from the criminal act, or has reserved the right to institute a separate action, or a fortiori, already instituted the said civil action, is that he has no special interest in the prosecution of the criminal action. (Gorospe vs. Gatmaitan, G.R. No. L-9609, March 9, 1956)

● Where the offended party withdrew a reservation to file a separate civil action, the private prosecutor may still intervene in the prosecution of the criminal case, by conducting the examination of witnesses under the control of the prosecutor.

However, once the offended party has filed a separate civil action arising from the crime, he may not withdraw such civil case in order to intervene in the criminal prosecution.  He loses the right to intervene.  He no longer has any standing in the criminal case, except to be a prosecution witness.

Why is the offended party has the right to intervene in the prosecution of the criminal action?

The reason for this rule is because of Article 100 of the RPC which provides that every person criminally liable shall also be civilly liable and also because there are certain offenses which cannot be prosecuted except upon complaint of the offended party.

Can the offended party file a civil action for certiorari in his own name if the RTC dismisses an information?

Yes.  In case of grave abuse of discretion amounting to lack of jurisdiction, the petition may be filed by the offended party because the offended party has an interest in the civil aspect of the case.

When the trial court acquits the accused or dismisses the case on the ground of lack of evidence to prove the guilt of the accused beyond reasonable doubt, the civil action is not automatically extinguished since liability under such an action can be determined based on mere preponderance of evidence. The offended party may peel off from the terminated criminal action and appeal from the implied dismissal of his claim for civil liability. (Heirs of Burgos vs CA, G.R. No. 169711, February 8, 2010)

Do the offended parties have the right to move for the dismissal of a case?

No.  The right belongs only to the government prosecutor who is the representative of the complainant.

Where a criminal action has been provisionally dismissed upon motion of the prosecutor, can the case be revived upon motion of the offended party?

No, because the offended party or complaining witness cannot act for the prosecutor. 

Do the offended parties in a criminal have the legal standing to seek, in their personal capacities and without the Solicitor General’s intervention, reversal of the trial court’s order granting bail to the accused on the ground of absence of strong evidence of guilt?

No. The question of granting bail to the accused is but an aspect of the criminal action, preventing him from eluding punishment in the event of conviction.  The grant of bail or its denial has no impact on the civil liability of the accused that depends on conviction by final judgment. Trial and judgment, with award for civil liability when warranted, could proceed even in his absence. (Heirs of Burgos vs CA, G.R. No. 169711, February 8, 2010)

Cases:

● An offended party may intervene in the prosecution of a crime, except in the following instances: (1) when from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party, and; (2) when from the nature of the offense, the offended parties are entitled to civil indemnity, but (a) they waive the right to institute a civil action, (b) expressly reserve the right to do so, or; (c) the suit has already been instituted.  In any of these instances, the private complainant’s interest in the case disappears and criminal prosecution becomes the sole function of the public prosecutor. (Rodriguez vs. Ponferrada. G.R. No. 155531-34, 7/29/2005)

● It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability. Thus, in the prosecution of the offense, the complainant's role is limited to that of a witness for the prosecution. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal.  The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused.

In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in name of said complainant. [Bangayan, Jr. vs. Bangayan, G.R. Nos. 172777 &  172792, October 19, 2011 citing People v. Santiago, 255 Phil. 851, 861-862 (1989)]

● Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice.  A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case.  The multiplicity of suits must be avoided. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil.  The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order. On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused. (Ramiscal vs Sandiganbayan, G.R. Nos. 140576-99.  December 13, 2004)

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Municipality of Paoay vs Manaois

MUNICIPALITY OF PAOAY v. MANAOIS

G.R. No. L-3485, June 30, 1950

Facts:

The municipality of Paoay leased 6 fishery lots to Francisco V. Duque for a period of four years. However, Duque was not able to comply with the terms of the lease contract; hence, the municipality approved a resolution confiscating said fishery lots and advertised its lease for public bidding.

TeodoroManaois, being the highest bidder, was awarded the lease. However, Manaois was not able to exercise his right to possession because Duque continued to claim possession over the properties and despite the appeal of Manaois to the Municipality of Paoay to put him in possession and the efforts of the municipality to oust Duque, Duque succeeded in continuing in his possession and keeping Manaois and his men out.

Manaois brought an action against the Municipality of Paoay to recover the sum paid by him for the lease of the fishery lots plus damages. Court of First Instance of Pangasinan ruled in his favor. A writ of execution and attachment were issued to enforce the judgment. The municipality filed a petition asking for the dissolution of that attachment of levy of the properties which was denied by the CFI.

The municipality filed a petition for certiorari with the writ of preliminary injunction, asking that the order of the CFI be reversed and that the attachment of the properties of the municipality be dissolved. The municipality contended that the properties attached by the sheriff for purposes of execution are not subject to levy because they are properties for public use.

Issue:

WON fishery or municipal waters of the town of Paoay or its usufruct may be levied upon and subject to execution?

Held:

No. There can be no question that properties for public use held by municipal corporation are not subject to levy and execution. The authorities are unanimous on this point. This Court held that properties for public use like trucks used for sprinkling the streets, police patrol wagons, police stations, public markets, together with the land on which they stand are exempt from execution. Even public revenues of municipal corporations destined for the expenses of the municipality are also exempt from the execution. The reason behind this exemption extended to properties for public use, and public municipal revenues is that they are held in trust for the people, intended and used for the accomplishment of the purposes for which municipal corporations are created, and that to subject said properties and public funds to execution would materially impede, even defeat and in some instances destroy said purpose.

Property however, which is patrimonial and which is held by municipality in its proprietary capacity is treated by great weight of authority as the private asset of the town and may be levied upon and sold under an ordinary execution. The same rule applies to municipal funds derived from patrimonial properties, for instance, it has been held that shares of stocks held by municipal corporations are subject to execution. If this is true, with more reason should income or revenue coming from these shares of stock, in the form of interest or dividends, be subject to execution.

The fishery or municipal waters of the town of Paoay, Ilocos Norte, which had been parceled out or divided into lots and later let out to private persons for fishing purposes at an annual rental are clearly not subject to execution. In the first place, they do not belong to the municipality. They may well be regarded as property of State. What the municipality of Paoay hold is merely what may be considered the usufruct or the right to use said municipal waters, granted to it by section 2321 of the Revised Administrative Code.

Now, is this particular usufruct of the municipality of Paoay over its municipal waters, subject to execution to enforce a judgment against the town? No. First, it is not a usufruct based on or derived from an inherent right of the town. It is based merely on a grant made by the Legislature. These marine waters are ordinarily for public use, open to navigation and fishing by the people. The municipality of Paoay is not holding this usufruct or right of fishery in a permanent or absolute manner so as to enable it to dispose of it or to allow it to be taken away from it as its property through execution. The Legislature thru section 2321 of the Administrative Code, as already stated, saw fit to grant the usufruct of said marine waters for fishery purpose, to the towns bordering said waters. Said towns have no visited right over said marine waters. The Legislature, for reasons it may deem valid or as a matter of public policy, may at any time, repeal or modify said section 2321 and revoke this grant to coastal towns and open these marine waters to the public. Or the Legislature may grant the usufruct or right of fishery to the provinces concerned so that said provinces may operate or administer them by leasing them to private parties.All this only goes to prove that the municipality of Paoay is not holding this usufruct or right of fishery in a permanent or absolute manner so as to enable it to dispose of it or to allow it to be taken away from it as its property through execution.

Second, if this were to be allowed and this right sold on execution, the buyer would immediately step into the shoes of the judgment-debtor municipality. Such buyer presumably buys only the right of the municipality. He does not buy the fishery itself nor the municipal waters because that belongs to the State. All that the buyer might do would be to let out or rent to private individuals the fishery rights over the lots into which the municipal waters had been parceled out or divided, and that is, after public bidding. Then, we shall have a situation rather anomalous to be sure, of a private individual conducting public bidding, renting to the highest bidders fishery lots over municipal waters which are property of the State, and appropriating the results to his own private use. The impropriety, if not illegality, of such a contingency is readily apparent. The situation imagined implies the deprivation of the municipal corporation of a source of a substantial income, expressly provide by law. Because of all this, we hold that the right or usufruct of the town of Paoay over its municipal waters is not subject to execution.

But we hold that the revenue or income coming from the renting of these fishery lots is certainly subject to execution. It may be profitable, if not necessary, to distinguish this kind of revenue from that derived from taxes, municipal licenses and market fees are provided for and imposed by the law, they are intended primarily and exclusively for the purpose of financing the governmental activities and functions of municipal corporations. Not so with the income derived from fisheries. In the first place, the usufruct over municipal waters was granted by the Legislature merely to help or bolster up the economy of municipal government. This kind of revenue is not indispensable for the performance of governmental functions. In the second place, the amount of this income is far from definite or fixed. It depends upon the amounts which prospective bidders or lessees are willing to pay. In other words, too many municipalities engaged in this business of letting out municipal waters for fishing purposes, it is a sort of sideline, so that even without it the municipality may still continue functioning and perform its essential duties as such municipal corporations.

We call this activity of municipalities in renting municipal waters for fishing purposes as a business for the reasons that the law itself allowed said municipalities to engage in it for profit. And it is but just that a town so engaged should pay and liquidate obligations contracted in connection with said fishing business, with the income derived therefrom.

In conclusion, we hold that the fishery lots numbering about forty in the municipality of Paoay, mentioned at the beginning of this decision are not subject to execution. For this reason, the levy and attachment made by the Provincial Sheriff of Ilocos Norte of theses fishery lots is void and the order of the Court of First Instance of Pangasinan insofar as it failed to dissolve the attachment made on these lots is reversed. However, the amount of P1,712.01 in the municipal treasury of Paoay representing the rental paid by Demetrio Tabije on fishery lots let out by the municipality of Paoay is a proper subject of levy, and the attachment made thereon by the Sheriff is valid.

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Office of the Ombudsman vs CA and Barriga

OFFICE OF THE OMBUDSMAN vs. CA and BARRIGA

G.R. No. 172224.  January 26, 2011

Facts:

Sometime in 2000, Sonia Q. Pua, a Municipal Councilor of Carmen, Cebu, filed a complaint with the Office of the Deputy Ombudsman for Visayas, alleging thatMayorVirgilio E. Villamor, Municipal TreasurerBontia, and respondent Municipal AccountantBarriga, entered into several irregular and anomalous transactions in their official capacity.

In a Decision dated 28 August 2002, the Office of the Deputy Ombudsman for Visayas found Barriga guilty of misconduct and imposed on her the penalty of six months suspension from the service.

Upon review, petitioner Office of the Ombudsman modified the decision and found Barriga guilty of conduct prejudicial to the best interest of the service and imposed on her the penalty of suspension for one year.Barriga filed a motion for reconsideration which petitioner denied.

Later, in an Order dated 13 November 2002, petitioner directed the municipal mayor of Carmen, Cebu to implement the decision dated 28 August 2002.

Barriga filed a petition for review with the CA which denied the petition for lack of merit.Barriga then elevated the case to the Supreme Court which also denied the petition. MR and second MR was likewise denied.

After a month, petitioner, through the Office of the Deputy Ombudsman for Visayas, again directed the municipal mayor of Carmen, Cebu to implement the Order dated 13 November 2002.

Barriga made a request that the implementation of the penalty of one-year suspension be held in abeyance pending the issuance of the entry of judgment by this Supreme Court. The request was denied by petitioner.

However, Barriga, in order to delay the implementation of her suspension from service elevated the case once again to the CA. The CA in rendering a favorable decision in favor of Barriga nullified the Ombudsman’s orders from implementing its decision. CA said that the immediate implementation of petitioner’s Order dated 13 November 2002 was premature pending resolution of the appeal. Since Republic Act No. 6770 or the Ombudsman Act of 1989 gives parties the right to appeal then such right also generally carries with it the right to stay these decisions pending appeal. Thus, the CA concluded that the acts of petitioner cannot be permitted nor tolerated.

Pursuant to the CA’s Resolution dated 16 June 2005, the municipal mayor of Carmen, Cebu reinstated Barriga as municipal accountant.

Petitioner filed a Motion for Reconsideration and raised the issue of finality of the Ombudsman’s Decision dated 28 August 2002. The motion was denied by the CA. Hence, this petition.

Issue:

Whether the Court of Appeals gravely abused its discretion in nullifying the orders of the Office of the Ombudsman to the municipal mayor of Carmen, Cebu for the immediate implementation of the penalty of suspension from service of respondent Barriga even though the case was pending on appeal.

  

Held:

Yes. Section 7, Rule III of Administrative Order No. 7, as amended by Administrative Order No. 17, states:

Section 7. Finality and execution 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, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer.

It is clear from the provision that when a public official has been found guilty of an administrative charge by the Office of the Ombudsman and the penalty imposed is suspension for more than a month, an appeal may be made to the CA. However, such appeal shall not stop the decision from being executory and the implementation of the decision follows as a matter of course.

The CA is incorrect. The provision in the Rules of Procedure of the Office of the Ombudsman is clear that an appeal by a public official from a decision meted out by the Ombudsman shall not stop the decision from being executory. In Office of the Ombudsman v. Court of Appeals and Macabulos, we held that decisions of the Ombudsman are immediately executory even pending appeal in the CA.

Thus, the Ombudsman’s order imposing on Barriga the penalty of suspension from office for one year without pay is immediately executory even pending appeal in the Court of Appeals.

Petition granted. The Resolutions dated 20 February 2006 and 16 June 2005 of the Court of Appeals in were set aside. The modified Order dated 28 August 2002 of the Office of the Ombudsman suspending Dinah C. Barriga from government service for one year without pay was reinstated. Since Dinah C. Barriga already partially served her suspension from government service, the Municipal Mayor of Carmen, Cebu wasdirected to implement with dispatch the remaining balance of number of days of suspension from office not yet served by Barriga. 

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Osea vs Malaya

OSEA vs MALAYA

G.R. No. 139821, January 30, 2002

FACTS:

Petitioner Eleonor Osea filed a protest case with the Civil Service Commission alleging that she was appointed as Officer-in-Charge, Assistant Schools Division Superintendent of Camarines Sur, by the then Secretary of DECS, upon the endorsement of the Provincial School Board of Camarines Sur. However, despite this, President Fidel Ramos, appointed respondent Corazon Malaya to the position of Schools Division Superintendent of Camarines Sur.

Petitioner claims that the appointment of respondent was made without prior consultation with the Provincial School Board, in violation of Section 99 of the Local Government Code as well as her vested right as the Schools Division Superintendent of Camarines Sur. Petitioner prayed that respondent’s appointment be recalled and set aside for being null and void.

The pertinent portion of Section 99 of Republic Act No. 7610, also known as the Local Government Code of 1991, states:

Sec. 99. Functions of Local School Boards. --- The provincial, city or municipal school board shall:

                                            xxx           xxx           xxx.

The Department of Education, Culture and Sports shall consult the local school boards on the appointment of division superintendents, district supervisors, school principals, and other school officials.

The Civil Service Commission dismissed petitioner’s protest complaint. The CSC found that President Ramos appointed respondent without any specific division. Thus, respondent performed the functions of Schools Division Superintendent in Iriga City. On November 3, 1997, Sec. Gloria designated respondent as Schools Division Superintendent of Camarines Sur, and petitioner Osea as Schools Division Superintendent of Iriga City. CSC held that Sec.99 of the LGC of 1991 contemplates a situation where the DECS issues the appointments, whereas respondent’s appointment was made by the President, in the exercise of his appointing power. Moreover, the designation of respondent as Schools Division Superintendent of Camarines Sur and of petitioner as Schools Division Superintendent of Iriga City were in the nature of reassignments, in which case consultation with the local school board was unnecessary.

Petitioner’s MR was denied. Hence, she filed a petition for certiorari

ISSUE:

Whether respondent’s appointment require the mandatory consultation with the Local School Board under Sec.99 of RA 7160.

HELD:

Section 99 of the LGC applies to appointments made by the DECS because at the time of the enactment of the LGC, schools division superintendents were appointed by the DECS to specific division or location. However, in 1994, the Career Executive Service Board issued a Memorandum Circular placing the positions of schools division superintendent and assistant schools division superintendent within the career executive service. Consequently, the power to appoint persons to career executive service positions was transferred from the DECS to the President. The appointment may not be specific as to location. The prerogative to designate the appointees to their particular stations was vested in the Department of Education, Culture and Sports Secretary, pursuant to the exigencies of the service, as provided in Department of Education, Culture and Sports Order No. 75, Series of 1996.

In the case at bar, the appointment issued by President Ramos in favor of respondent to the Schools Division Superintendent position on September 3, 1996 did not specify her station. It was Secretary Gloria who, in a Memorandum dated November 3, 1997, assigned and designated respondent to the Division of Camarines Sur, and petitioner to the Division of Iriga City.

In addition, under the circumstances, the designation of respondent as Schools Division Superintendent of Camarines Sur was not a case of appointment but rather in the nature of reassignment from Iriga City, where she previously exercised her functions as Officer-in-Charge-Schools Division Superintendent, to Camarines Sur. Therefore, Section 99 of the LGC, which requires prior consultation with the local school board does not apply. It only refers to appointments made by the Department of Education, Culture and Sports. Such is the plain meaning of the said law.

Appointment vs. Reassignment

Appointment should be distinguished from reassignment. An appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office.

On the other hand, a reassignment is merely a movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment. In the same vein, a designation connotes merely the imposition of additional duties on an incumbent official

Petitioner asserts a vested right to the position of Schools Division Superintendent of Camarines Sur, citing her endorsement by the Provincial School Board. Her qualification to the office, however, lacks one essential ingredient, i.e., her appointment thereto. While she was recommended by Secretary Gloria to President Ramos for appointment to the position of Schools Division Superintendent of Camarines Sur, the recommendation was not acted upon by the President.

Petitioner Osea's designation as Officer-in-Charge, Assistant Schools Division Superintendent, was expressly made subject to further advice from the DECS. Thus, her designation was temporary. In fact, there was a need to recommend her to the President for appointment in a permanent capacity. Inasmuch as she occupied her position only temporarily, petitioner can be transferred or reassigned to other positions without violating her right to security of tenure. Indeed, petitioner has no vested right to the position of Schools Division Superintendent of Camarines Sur.

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Substitution of Complaint or Information

Section 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. 

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. 

● The first paragraph provides the rules for amendment of the information or complaint, while the third paragraph refers to the substitution of the information or complaint.

When can a complaint or information be substituted?

A complaint or information may be substituted if:  

1. At any time before judgment it appears that a mistake has been made in charging the proper offense, and

2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein

3. Provided that he will not be placed in double jeopardy.

Limitation to the rule on substitution: 

1. No judgment has yet been rendered

2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein.

3. The accused would not be placed in double jeopardy.

Can the court order the dismissal of the original complaint before a new one is filed in substitution?

No.  The court will not order the dismissal until the new information is filed.

Amendment vs. Substitution

AMENDMENT	SUBSTITUTION OF INFORMATION OR COMPLAINT
May involve either formal or substantial changes	Involves substantial change from the original charge
Amendment before the plea has been entered can be effected without leave of court.	Substitution of information must be with leave of court as the original information has to be dismissed.
Amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused.	Another preliminary investigation is entailed and the accused has to plead anew to the new information
An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy.	Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

What  is  the  test  to  determine  if  what  is  needed  is amendment or substitution?

In determining, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. (Pacoy vs. Cajigal, G.R. No. 157472, September 28, 2007 citing Teehankee v. Madayag, G.R. No. 103102, March 6, 1992)

When is there identity between the two offenses?

There is identity between the two offenses:

1. when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or 

2. when the second offense is exactly the same as the first, or 

3. when the second offense is an attempt to commit or a frustration of, or 

4. when it necessarily includes or is necessarily included in, the offense charged in the first information. 

In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter.  And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter. (Pacoy vs. Cajigal, ibid.)

Variance between indictment and proof 

1. When the offense proved is less serious than, and is necessarily included in, the offense charged, in which case the defendant shall be convicted of the offense proved.

2. When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged.

3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of a new information charging the proper offense.

The third situation set forth above is substitution of information under Section 14, Rule 110.

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Pimentel vs Aguirre

PIMENTEL vs. AGUIRRE

G.R. No. 132988 July 19, 2000

FACTS:

President Ramos issued Administrative Order 372 (Adoption of Economic Measures in Government for Fiscal Year 1998). Section 1 provided that all government departments and agencies, including state universities and colleges, GOCCs and LGUs will identify and implement measures in FY 1998 that will replace total expenditures by at least 25% of authorized regular appropriations for non-personal services items. Section 4 also provided that pending assessment by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the IRA to LGUs shall be withheld. President Estrada issued AO 43, amending Section 4 by reducing to 5% the IRA to be withheld.

ISSUES:

1. WON Section 1 of AO 372, insofar as it "directs" LGUs to reduce their expenditures by 25% is valid

2. WON withholding a part of LGUs IRA is valid

HELD:

1. Yes. Section 1 of AO 372, insofar as it “directs” LGUs to reduce expenditures by at least 25% is a valid exercise of the President’s power of general supervision over LGUs as it is advisory only.  “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.” Under existing law, LGU, in addition to having administrative autonomy, enjoy fiscal autonomy as well.  Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities.  It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof.

Local fiscal autonomy does not however rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals.  Significantly, the President, by constitutional fiat, is the head of the economic and planning agency of the government, primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs for the entire country.  However, under the Constitution, the formulation and the implementation of such policies and programs are subject to "consultations with the appropriate public agencies, various private sectors, and local government units."  The President cannot do so unilaterally.

Consequently, the Local Government Code provides:

"x x x In the event the national government incurs an unmanaged public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of [the] Secretary of Finance, Secretary of the Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the liga, to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year   x x x."

There are therefore several requisites before the President may interfere in local fiscal matters: 

(1) An unmanaged public sector deficit of the national government;

(2) Consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and

(3) The corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management.  Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one.

Petitioner points out that respondents failed to comply with these requisites before the issuance and the implementation of AO 372.  At the very least, they did not even try to show that the national government was suffering from an unmanageable public sector deficit.  Neither did they claim having conducted consultations with the different leagues of local governments.  Without these requisites, the President has no authority to adjust, much less to reduce, unilaterally the LGU's internal revenue allotment.

The solicitor general insists, however, that AO 372 is merely directory and has been issued by the President consistent with his power of supervision over local governments.  It is intended only to advise all government agencies and instrumentalities to undertake cost-reduction measures that will help maintain economic stability in the country, which is facing economic difficulties.  Besides, it does not contain any sanction in case of noncompliance.  Being merely an advisory, therefore, Section 1 of AO 372 is well within the powers of the President.  Since it is not a mandatory imposition, the directive cannot be characterized as an exercise of the power of control.

While the wordings of Section 1 of AO 372 have a rather commanding tone, and while we agree with petitioner that the requirements of Section 284 of the Local Government Code have not been satisfied, we are prepared to accept the solicitor general's assurance  that  the  directive  to  "identify and implement measures  x x x  that will reduce total expenditures  x x x  by at least 25% of authorized regular appropriation" is merely advisory in character, and does not constitute a mandatory or binding order that interferes with local autonomy.  The language used, while authoritative, does not amount to a command that emanates from a boss to a subaltern.

Rather, the provision is merely an advisory to prevail upon local executives to recognize the need for fiscal restraint in a period of economic difficulty.  Indeed, all concerned would do well to heed the President's call to unity, solidarity and teamwork to help alleviate the crisis.  It is understood, however, that no legal sanction may be imposed upon LGUs and their officials who do not follow such advice.  It is in this light that we sustain the solicitor general's contention in regard to Section 1.

2. No. Section 4 is invalid because it interferes with local autonomy, particularly local fiscal autonomy.  A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue.  This is mandated by no less than the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and "shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose." As a rule, the term "shall" is a word of command that must be given a compulsory meaning. The provision is, therefore, imperative.

Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs' IRA "pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation" in the country.  Such withholding clearly contravenes the Constitution and the law.  Although temporary, it is equivalent to a holdback, which means "something held back or withheld, often temporarily." Hence, the "temporary" nature of the retention by the national government does not matter.  Any retention is prohibited.

Scope of President's Power of Supervision Over LGUs

Section 4 of Article X of the Constitution confines the President's power over local governments to one of general supervision.  It reads as follows:

"Sec. 4. The President of the Philippines shall exercise general supervision over local governments.  x x x"

This provision has been interpreted to exclude the power of control.  In Mondano v. Silvosa, the Court contrasted the President's power of supervision over local government officials with that of his power of control over executive officials of the national government.  It was emphasized that the two terms -- supervision and control -- differed in meaning and extent.  The Court distinguished them as follows:

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

In Taule v. Santos, we further stated that the Chief Executive wielded no more authority than that of checking whether local governments or their officials were performing their duties as provided by the fundamental law and by statutes.  He cannot interfere with local governments, so long as they act within the scope of their authority.  "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," we said.

In a more recent case, Drilon v. Lim, the difference between control and supervision was further delineated.  Officers in control lay down the rules in the performance or accomplishment of an act.  If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves.  On the other hand, supervision does not cover such authority.  Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them.  If the rules are not observed, they may order the work done or redone, but only to conform to such rules.  They may not prescribe their own manner of execution of the act.  They have no discretion on this matter except to see to it that the rules are followed.

Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos.  As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. In contrast, the heads of political subdivisions are elected by the people.  Their sovereign powers emanate from the electorate, to whom they are directly accountable.  By constitutional fiat, they are subject to the President’s supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers.  By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law.

Extent of Local Autonomy

Hand in hand with the constitutional restraint on the President's power over local governments is the state policy of ensuring local autonomy.

In Ganzon v. Court of Appeals, we said that local autonomy signified "a more responsive and accountable local government structure instituted through a system of decentralization."  The grant of autonomy is intended to "break up the monopoly of the national government over the affairs of local governments, x x x  not  x x x  to end the relation of partnership and interdependence between the central administration and local government units  x x x."  Paradoxically, local governments are still subject to regulation, however limited, for the purpose of enhancing self-government.

Decentralization simply means the devolution of national administration, not power, to local governments.  Local officials remain accountable to the central government as the law may provide. The difference between decentralization of administration and that of power was explained in detail in Limbona v. Mangelin as follows:

"Now, autonomy is either decentralization of administration or decentralization of power.  There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments 'more responsive and accountable,' and 'ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.' At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises 'general supervision' over them, but only to 'ensure that local affairs are administered according to law.' He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local government units declared to be autonomous.  In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities.  According to a constitutional author, decentralization of power amounts to 'self-immolation,' since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency."

Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions.  Only administrative powers over local affairs are delegated to political subdivisions.  The purpose of the delegation is to make governance more directly responsive and effective at the local levels.  In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development.  But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal.  Thus, policy-setting for the entire country still lies in the President and Congress.  As we stated in Magtajas v. Pryce Properties Corp., Inc., municipal governments are still agents of the national government.

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