Ombudsman vs. CSC

OMBUDSMAN VS. CIVIL SERVICE COMMISSION

G.R. No. 162215, July 30, 2007

Facts:

Ombudsman Simeon V. Marcelo wrote a letter dated July 28, 2003 to the Civil Service Commission (CSC), requesting the approval of the amendment of qualification standards for Director II positions in the Central Administrative Service and Finance and Management Service of the Office of the Ombudsman.   The CSC issued Opinion No. 44, s. 2004 disapproving the request on the ground that Director II position, being third level eligibility, is covered by the Career Executive Service. The Office of the Ombudsman, thus, filed a petition for certiorari seeking to set aside and nullify CSC Opinion No. 44, s. 2004.

The Office of the Ombudsman asserts that its specific, exclusive and discretionary constitutional and statutory power as an independent constitutional body to administer and supervise its own officials and personnel, including the authority to administer competitive examinations and prescribe reasonable qualification standards for its own officials, cannot be curtailed by the general power of the CSC to administer the civil service system. Any unwarranted and unreasonable restriction on its discretionary authority, such as what the CSC did when it issued Opinion No. 44, s. 2004, is constitutionally and legally infirm.

Issue:

1. Whether or not the Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman are covered by the CES

Held:

1. No. Book V, Title I, Subtitle A, Chapter 2, Section 7 of EO 292, otherwise known as “The Administrative Code of 1987,” provides:

SECTION 7.  Career Service. – The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.

The Career Service shall include:

(1)   Open Career positions for appointment to which prior qualification in an appropriate examination is required;

(2)   Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;

(3)  Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;

x x x          x x x          x x x (emphasis supplied)

Thus, the CES covers presidential appointees only.

2.  Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen. Thus, a person occupying the position of Director II in the Central Administrative Service or Finance and Management Service of the Office of the Ombudsman is appointed by the Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES eligibility.

To classify the positions of Director II in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution or (2) including in the CES a position not held by a presidential appointee, contrary to the Administrative Code.

Section 6, Article XI of the Constitution provides:

Sec. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law.

  

This is complemented by Sec. 11 of RA 6770, otherwise known as “The Ombudsman Act of 1989.”

Under the Constitution, the Office of the Ombudsman is an independent body. As a guaranty of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his deputies.This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office.

To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern. Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant.

Qualification standards are used as guides in appointment and other personnel actions, in determining training needs and as aid in the inspection and audit of the personnel work programs. They are intimately connected to the power to appoint as well as to the power of administrative supervision. Thus, as a corollary to the Ombudsman’s appointing and supervisory powers, he possesses the authority to establish reasonable qualification standards for the personnel of the Office of the Ombudsman.

Since the responsibility for the establishment, administration and maintenance of qualification standards lies with the concerned department or agency, the role of the CSC is limited to assisting the department or agency with respect to these qualification standards and approving them. The CSC cannot substitute its own standards for those of the department or agency, specially in a case like this in which an independent constitutional body is involved.

Petition GRANTED and Opinion No. 44, s. 2004 SET ASIDE.

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Orcullo vs Gervacio

ORCULLO VS. GERVACIO

G.R. No. 134104.  September 14, 1999

Facts:

Petitioner Nenita R. Orcullo was elected City Councilor of the Second District of Davao City in 1995.  She was chair of the Committee of Women Welfare and Development of the Sangguniang Panlungsod.

In September, 1995, the City Government of Davao City, represented by the Vice-Mayor, named respondent Virginia Yap Morales as team leader of a study group in the conduct of the Action Study Towards Policy Formulation on the Welfare and Development of Women, in aid of legislation.

In 1996, due to financial constraints, Orcullo caused the suspension of the project. In 1997, Morales wrote the Office of the Ombudsman for Mindanao "requesting for assistance" to collect back wages. 

On March 20, 1997, petitioner having been furnished a copy of  the above letter, replied thereto.  She said that respondent Virginia Yap Morales was among women activists who volunteered to work for the codification of the Women Code, and she was endorsed to head the study team.  Acting thereon, on September 15, 1995, the Vice Mayor of Davao City, appointed respondent team leader of a study group for an action study towards policy formulation on women's welfare and development, in aid of proposed legislation.  As there was no budget for the project, petitioner recommended her appointment as technical assistant in the City Council of Davao City.  On October 24, 1995, respondent accepted the appointment and signed a contract of service with the City of Davao, represented by the Vice-Mayor, enforceable for the period October 1, 1995 to December 31, 1995, and upon expiration thereof, she was named as clerk II in the office of petitioner.  She received all salaries due her even during the time the work was suspended for three months, until the suspension of the project due to financial constraints.

In 1998, respondent Margarito P. Gervacio, Jr., Deputy Ombudsman for Mindanao issued an order directing Orcullo to pay respondent Morales back wages.

Orcullo filed a motion for reconsideration on the ground that the award of back wages was improper as there was no employer-employee relationship between her and respondent Morales, and that the office of the Ombudsman was without authority to issue such an order. Gervacio denied the motion for reconsideration.

On April 15, 1998, graft investigator Marilou B. Unabia issued a memorandum terminating the request for assistance of Morales and recommending that a case for violation of Section 3 (e), R.A. No. 3019 be filed against Orcullo before the Office of the Deputy Ombudsman for Mindanao. Gervacio, Jr. approved the recommendation. Hence, Orcullo filed special civil action for certiorari.

Issue:

Whether or not respondent Deputy Ombudsman for Mindanao acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in ordering petitioner personally to pay back wages to respondent Morales, who was named as team leader of a study group for a project of the Sangguniang Panlungsod of Davao City, in aid of legislation.

Held:

No. The Deputy Ombudsman for Mindanao has no authority or jurisdiction over the subject matter of the claim. As a money claim against petitioner personally, the claim is within the jurisdiction of a court of proper jurisdiction (depending on the amount of the claim).  If the money claim is against the City government of Davao City, the claim is within the jurisdiction of the City Council (Sangguniang Panlungsod), or other proper government agency, but not the office of the Ombudsman.

The respondent Deputy Ombudsman for Mindanao cannot invoked Section 15 (5) of R.A. No. 6770, which provides:

“SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

“x x x

“(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents;”

The above quoted provision does not vest the Ombudsman with authority to order a public official to pay a money claim of an aggrieved party. The provision authorizes the Office of the Ombudsman to request any government agency for assistance and information necessary in the discharge of its responsibilities. It does not authorize the Ombudsman to directly order the payment of claims for wages, salaries or compensations of aggrieved parties.

What is more, respondent Deputy Ombudsman for Mindanao abused the functions of his office by approving a recommendation of a graft investigator to file with his own office an anti-graft case against petitioner for violation of Section 3 (e), R.A. No. 3019, who was just exercising the duties of her office as an elected local legislator of the City of Davao.  Petitioner could not be personally liable for the payment of the wages, salary or  honorarium of a "team leader" assisting her as local legislator of Davao City in crafting a piece of legislation on women's code.  She was not even the one who hired respondent to undertake the project.  Petitioner's refusal to pay was not in bad faith, much less evident bad faith.  Hence, she could not be liable for violation of Section 3 (e) of R.A. No. 3019, as amended.

"Any further prosecution then of petitioner was pure harassment."

Consequently, the Deputy Ombudsman for Mindanao acted without or in excess of jurisdiction, or with grave abuse of discretion, in issuing the questioned orders.  Although petitioner could have elevated the ruling of the Deputy Ombudsman for Mindanao to the Ombudsman in Manila, the threat of prosecution of petitioner before the Deputy Ombudsman’s own office created an immediate urgency for judicial relief.

Petition granted. Orders of the Deputy Ombudsman for Mindanao annulled. Graft Investigation Officer Unabia enjoined to desist from further acting on the case.

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Calingin vs Desierto

CALINGIN VS. DESIERTO

G.R. Nos. 145743-89, August 10, 2007, 529 SCRA 720

Facts:

Petitioner Antonio P. Calingin is a former mayor of Claveria, Misamis Oriental. During his incumbency, the municipality undertook a low-cost housing project. The Commission on Audit (COA) of Region X, Cagayan de Oro City conducted a special audit of the housing project for calendar years 1995 and 1996. The members of the COA Special Audit Team executed a Joint Affidavit embodying their findings for the purpose of filing criminal charges against Calingin and other public officials. They then submitted their Audit Report and Joint Affidavit to the Office of the Deputy Ombudsman for Mindanao.

In a Resolution dated December 2, 1998, Graft Investigation Officer Jocelyn R. Araune of the Office of the Deputy Ombudsman for Mindanao recommended the filing of criminal charges against the petitioner and co-accused for violation of Section 3(e) and 3(h) of R.A. No. 3019, otherwise known as Anti-Graft and Corrupt Practices, and for violation of Article 220 of the Revised Penal Code. Upon review, however, Special Prosecution Officer Alberto B. Sipaco, Jr., Office of the Ombudsman for Mindanao recommended that the said Resolution be disapproved and the charges be dismissed for insufficiency of evidence. On August 13, 1999, then Ombudsman Aniano A. Desierto, respondent, disapproved the Memorandum of Sipaco and approved the Resolution of Araune.

Consequently, 47 Informations for violation of Section 3 (e) and (h) of R.A. No. 3019 and Article 220 of the Revised Penal Code were filed with the Sandiganbayan against Calingin and his co-accused.

Calingin filed a motion for reinvestigation which was granted by the Sandiganbayan. It then ordered the Office of the Special Prosecutor to reinvestigate the cases.

In a Resolution dated July 20, 2000, Special Prosecutor Norberto B. Ruiz recommended the dismissal of all the cases against all the accused for lack of probable cause.  In a Memorandum dated August 10, 2000, the Chief of the Office of Legal Affairs, Office of the Ombudsman, reversed the Ruiz Resolution and recommended that Calingin and his co-accused be prosecuted. The Ombudsman approved the recommendation.

Hence, Calingin filed a petition for certiorari, contending that the Office of Legal Affairs which recommended his prosecution has no authority to review the findings and recommendation of the Office of the Special Prosecutor since the latter is not subject to the control and supervision of the Ombudsman. 

Issue:

Whether respondent Ombudsman acted with grave abuse of discretion amounting to lack or excess of jurisdiction in disapproving the recommendation of the Office of the Special Prosecutor to dismiss all the charges against herein petitioner and his co-accused. Is the Special Prosecutor co-equal to the Ombudsman or to his deputies?

Held:

No. The Office of the Ombudsman and the Office of the Special Prosecutor are creatures of the 1987 Constitution as provided by Sections 5, 7 and 13 of Article XI.

In Zaldivar v. Sandiganbayan, the Court ruled that under the Constitution, the Special Prosecutor is a mere subordinate of the Ombudsman and can investigate and prosecute cases only upon the latter’s authority or orders.

R.A. No. 6770, also known as the Ombudsman Act of 1989, provides that the Special Prosecutor has the power and authority, under the supervision and control of the Ombudsman, to conduct preliminary investigation and prosecute criminal cases before the Sandiganbayan and perform such other duties assigned to him by the Ombudsman.

Verily, the Office of the Special Prosecutor is but a mere subordinate of the Ombudsman and is subject to his supervision and control. In Perez v. Sandiganbayan, this Court held that control means “the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.” Clearly, in disapproving the recommendation of the Office of the Special Prosecutor to dismiss all the charges against petitioner and his co-accused, respondent Ombudsman did not act with grave abuse of discretion.

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Zaldivar vs Sandiganbayan

ZALDIVAR VS. SANDIGANBAYAN

G.R. Nos. 79690-707, April 27, 1988

Facts:

Petitioner Enrique A. Zaldivar, governor of the province of Antique, filed a petition for certiorari, prohibition and mandamus under Rule 65 before the Supreme Court, seeking to restrain the Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing of criminal cases against him on the ground that said cases were filed by said Tanodbayan without legal and constitutional authority, since under the 1987 Constitution which took effect on February 2, 1987, it is only the Ombudsman (not the present or incumbent Tanodbayan) who has the authority to file cases with the Sandiganbayan. Petitioner also prayed that Tanodbayan Gonzalez be restrained from conducting preliminary investigations with the Sandiganbayan.

Issue:

Does the Tanodbayan (Special Prosecuter) have the authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan?

Held:

No. Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent Tanodbayan) is charged with the duty to:

Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or commission appears to be illegal, unjust, improper, or inefficient (Sec. 13, par. 1)

The Constitution likewise provides that:

The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, contempt except those conferred on the office of the Ombudsman created under this Constitution. (Art. XI, Section 7).

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (caged Special Prosecutor under the 1987 constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1987. From that time, he has been divested of such authority.

Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases only upon the latter's authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Spedal Prosecutor in connection with the cases he is ordered to investigate.

It is not correct either to suppose that the Special Prosecutor remains the Ombudsman as long as he has not been replaced, for the fact is that he has never been the Ombudsman. The Office of the Ombudsman is a new creation under Article XI of the Constitution different from the Office of the Tanodbayan created under PD 1607 although concededly some of the powers of the two offices are Identical or similar. The Special Prosecutor cannot plead that he has a right to hold over the position of Ombudsman as he has never held it in the first place.

WHEREFORE, We hereby:

(1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal informations filed against him in the Sandiganbayan; and

(2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing criminal cases with the Sandiganbayan or otherwise exercising the powers and function of the Ombudsman.

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Orap vs. Sandiganbayan

ORAP VS. SANDIGANBAYAN

G.R. Nos. L-50508-11,  October 11, 1985

Facts:

Tanodbayan Special Prosecutor Rodolfo B. Aquino filed four informations before the Sandiganbayan charging petitioner Vicente S. Orap Presiding Judge of the Municipal Court of Mangatarem, Pangasinan, with violation of Section 3(e) of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The gravamen of all these charges was to the effect that the accused on different occasions unlawfully and feloniously received and took various sums of money from several persons in connection with a criminal case pending before his sala.

Before his arraignment, petitioner filed a motion to quash the informations on the ground that the officer who signed the same had no authority to do so and that, corollarily, the Sandiganbayan did not acquire jurisdiction over the offenses charged. The respondent court denied the motion to quash. Petitioner verbally moved for the reconsideration of the order but the relief sought was denied.

Hence, petitoner filed a petition for certiorari and prohibition before the SC. It is the petitioner's position that the Tanodbayan has no power to conduct preliminary investigations, file informations and prosecute criminal cases against judges and their appurtenant judicial staff. He contended that under the Section 9(a) of the Tanodbayan Decree, the courts, judges and other appurtenant judicial staff, among others, are beyond the reach of the Tanodbayan, and that only administrative acts of agencies of the government, whether or not criminal in character, are within the powers of said official.

Issue:

Has the Tanodbayan the authority to conduct a preliminary investigation of a complaint charging a municipal judge and his clerk of court with violation of Section 3(e) of Rep. Act No. 3019 and, upon a finding of prima facie case, proceed to file the corresponding information before the Sandiganbayan and prosecute the same?

Held:

Yes. Petitioner’s argument overlooks the fact that under the decree, the Tanodbayan functions not only as an ombudsman, but as prosecutor as well.

As ombudsman, his investigatory powers are limited to complaints initiated against officers and personnel of administrative agencies, as defined in Section 9(a) of the law. To that extent, we agree with the petitioner's interpretation of the law that insofar as administrative complaints are concerned, the courts, judges and their appurtenant judicial staff are outside the Tanodbayan's investigatory power. The reason for such exclusion is quite evident: under Section 6, Article 10 of the Constitution, it is the Supreme Court that exercises administrative supervision over all courts and their personnel and, therefore, is the proper forum to which administrative complaints involving judges and the court's personnel should be lodged.

As prosecutor, however, the authority of the Tanodbayan is primary and without exceptions. His powers are defined in Sections 17 and 19 of P.D. 1607, as follows:

SEC. 17. Office of the Chief Special Prosecutor.—There is hereby created in the Office of the Tanodbayan an Office of the Chief Special Prosecutor composed of a Chief Special Prosecutor, an Assistant Chief Special Prosecutor, and nine (9) Special Prosecutors, who shall have the same qualifications as provincial and city fiscals and who shall be appointed by the President; ...

The Chief Special Prosecutor, the Assistant Chief Special Prosecutor and the Special Prosecutors shall have the exclusive authority to conduct preliminary investigation of all cases cognizable, by the Sandiganbayan: to file informations therefor and to direct and control the prosecution of said cases therein Provided, however that the Tanodbayan may upon recommendation of the Chief Special Prosecutor, designate any fiscal, state prosecutor or lawyer in the government service to act as Special Prosecutor to assist in the investigation and prosecution of all cases cognizable by the Sandiganbayan who shall not receive any additional compensation except such allowances, per diems and travelling expenses as the Tanodbayan may determine in accordance with existing laws, rules and regulations.

xxx         xxx      xxx

SEC. 19. Prosecution of Public Personnel or Other Person.—If the Tanodbayan has reason to believe that any public official employee, or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall cause him to be investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency. In case of failure of justice, the Tanodbayan shall make the appropriate recommendations to the administrative agency concerned.

Section 17 of the Decree, in unequivocal term, confers upon the Tanodbayan, through the Chief Special Prosecutor and the Special Prosecutors, the exclusive authority to "conduct preliminary investigation of all cases cognizable by the Sandiganbayan, to file informations therefor, and to direct and control the prosecution of said cases therein." If, as petitioner contends, judges, and other court personnel lie outside the investigatory power of the Tanodbayan, then no judge or court employee could ever be brought to justice for crimes and offenses cognizable by the Sandiganbayan, for lack of proper officer or entity authorized to conduct the preliminary investigation on complaints of such nature against them. This absurd situation the law could never have intended, considering that the Office of the Tanodbayan was purposely created to "give effect to the constitutional right of the people to petition the government for redress of grievances and to promote higher standards of integrity and efficiency in the government service."

Petition dismissed. 

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Khan vs Ombudsman

KHAN VS. OMBUDSMAN

G.R. No. 125296, July 20, 2006

FACTS:

Petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan, former officers of Philippine Airlines (PAL), were charged before the Deputy Ombudsman (Visayas) with violation of RA 3019 (the Anti-Graft and Corrupt Practices Act) for using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders.

Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019.

The Deputy Ombudsman denied petitioners' omnibus motion to dismiss, ruling that although PAL was originally organized as a private corporation, its controlling stock was later acquired by the government through the GSIS. Therefore, it became a government-owned or controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan. The Deputy Ombudsman also held that petitioners were public officers within the definition of RA 3019, Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the Government."

Petitioners appealed the order to the Ombudsman which affirmed the decision of the Deputy Ombudsman.

Petitioners, thus, filed a petition for certiorari before the Supreme Court. Petitioners argue that: (1) the Ombudsman's jurisdiction only covers GOCCs with original charters and these do not include PAL, a private entity created under the general corporation law; (2) Quimpo does not apply to the case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law.

ISSUE:

1. Whether or not the Ombudsman has jurisdiction over GOCC without original charter

2. Whether or not the Quimpo case apply to the case at bar

3. Whether or not petitioners PAL officers are public officers

HELD:

1. Jurisdiction of the ombudsman over GOCCS is confined only to those with original charters

Article XI, Section 13(2) of the 1987 Constitution provides:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

xxx       xxx       xxx

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (italics supplied)

xxx       xxx       xxx

Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman.

In Juco v. National Labor Relations Commission, we ruled that the phrase "with original charter" means "chartered by special law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or prosecute petitioners.

2. Quimpo Not Applicable to the Case at Bar

Quimpo is not applicable to the case at bar. In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the dismissal of the case on the ground that the Tanodbayan had no jurisdiction over them as officers/employees of a private company. The Court declared that the Tanodbayan had jurisdiction over them because PETROPHIL ceased to be a private entity when Philippine National Oil Corporation (PNOC) acquired its shares.

In hindsight, although Quimpo appears, on first impression, relevant to this case (like PETROPHIL, PAL's shares were also acquired by the government), closer scrutiny reveals that it is not actually on all fours with the facts here.

In Quimpo, the government acquired PETROPHIL to "perform functions related to government programs and policies on oil." The fact that the purpose in acquiring PETROPHIL was for it to undertake governmental functions related to oil was decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the case with PAL. The records indicate that the government acquired the controlling interest in the airline as a result of the conversion into equity of its unpaid loans in GSIS. No governmental functions at all were involved.

Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the 1973 Constitution which the Court relied on in concluding that the Tanodbayan had jurisdiction over PETROPHIL's accused officers, particularly Article XIII, Section 6. The term "government-owned or controlled corporations" in the 1973 Constitution was qualified by the 1987 Constitution to refer only to those with original charters.

3. Petitioners, as then Officers of PAL, were not Public Officers

Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied definitions and concepts are found in different statutes and jurisprudence. Usually quoted in our decisions is Mechem, a recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court extensively quoted his exposition on the term "public officers":

A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.

The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.

xxx       xxx       xxx

Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not.

The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public; − that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.

From the foregoing, it can be reasonably inferred that "public officers" are those endowed with the exercise of sovereign executive, legislative or judicial functions. The explication of the term is also consistent with the Court's pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are deemed "public officers" if their corporations are tasked to carry out governmental functions.

WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy Ombudsman (Visayas) and Office of the Ombudsman are restrained from proceeding with the investigation or prosecution of the complaint against petitioners for violation of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET ASIDE and ANNULLED.

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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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