OFFICE OF THE OMBUDSMAN, petitioner, vs. MARIAN D. TORRES and MARICAR D. TORRES, respondents

condonation of an administrative offense takes place only when the public official is re-elected despite the pendency of an administrative case against him

THIRD DIVISION

G.R. No. 168309             January 29, 2008
OFFICE OF THE OMBUDSMAN, petitioner,
vs.
MARIAN D. TORRES and MARICAR D. TORRES, respondents.

D E C I S I O N

NACHURA, J.:

This is a petition¹ for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Office of the Ombudsman seeking the reversal of the Decision² dated January 6, 2004 and the Resolution³ dated May 27, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 69749.

The case arose from an administrative complaint for Dishonesty, Grave Misconduct, and Falsification of Official Document filed before the Office of the Ombudsman (docketed as OMB-ADM-0-00-0926) by then Barangay Chairman Romancito L. Santos of Concepcion, Malabon, against Edilberto Torres (Edilberto), Maricar D. Torres (Maricar), and Marian D. Torres (Marian), then Municipal Councilor, Legislative Staff Assistant, and Messenger, respectively, of the Sangguniang Bayan of Malabon. Maricar and Marian are daughters of Edilberto.

Maricar was appointed as Legislative Staff Assistant on February 16, 1995, while Marian was appointed as Messenger on May 24, 1996. At the time of their public employment, they were both enrolled as full-time regular college students – Maricar, as a full-time student at the University of Santo Tomas (UST) and Marian as a dentistry-proper student at the College of Dentistry of Centro Escolar University. During the period subject of this case, they were able to collect their respective salaries by submitting Daily Time Records (DTR) indicating that they reported for work every working day, from 8:00 a.m. to 5:00 p.m.

After due proceedings held in the Office of the Ombudsman, Graft Investigation Officer (GIO) Moreno F. Generoso, in the Decision⁴ dated November 9, 2001, found Maricar and Marian administratively guilty of Dishonesty and Falsification of Official Document and recommended the imposition of the penalty of dismissal from the service. The charge against Edilberto was dismissed, having become moot and academic in view of his re-election on May 14, 2001 in accordance with the ruling in Aguinaldo v. Santos⁵ that "a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor." Upon recommendation of Deputy Special Prosecutor Robert E. Kallos, Ombudsman Aniano A. Desierto affirmed the findings of GIO Generoso but tempered the penalty to one (1) year suspension from service without pay.

Aggrieved, Maricar and Marian went to the CA via a petition⁶ for certiorari under Rule 65 of the Rules of Court.

In a Decision dated January 6, 2004, the CA granted the petition. While affirming the findings of fact of the Office of the Ombudsman, the CA set aside the finding of administrative guilt against Maricar and Marian ratiocinating in this wise:

It is undisputed that petitioners are confidential employees of their father. As such, the task they were required to perform, is upon the instance of their father, and the time they were required to report may be intermittent. To our mind, the false entries they made in their daily time records on the specific dates contained therein, had been made with no malice or deliberate intent so as to constitute falsification. The entries made may not be absolutely false, they may even be considered as having been made with a color of truth, not a downright and willful falsehood which taken singly constitutes falsification of public documents. As Cuello Calon stated: "La mera inexactud no es bastante para integrar este delito." In the present case, the daily time records have already served their purpose. They have not caused any damage to the government or third person because under the facts obtaining, petitioners may be said to have rendered service in the interest of the public, with proper permission from their superior.

It may be true that a daily time record is an official document. It is not falsified if it does not pervert its avowed purpose as when it does not cause damage to the government. It may be different in the case of a public document with continuing interest affecting the public welfare, which is naturally damaged if that document is falsified when the truth is necessary for the safeguard and protection of that general interest. The keeping and submission of daily time records within the context of petitioners’ employment, should be taken only for the sake of administrative procedural convenience or as a matter of practice, but not for reason of strict legal obligation.

Assuming that petitioners are under strict legal obligation to keep and submit daily time records, still we are disposed to the view that the alleged false entries do not constitute falsification for having been made with no malice or deliberate intent.

The following pronouncement in the case of Lecaroz vs. Sandiganbayan may serve as a guidepost, to wit: "[I]f what is proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed to him. x x x. Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of duty or indifference to consequences, which is equivalent to criminal intent, for in this instance, the element of malicious intent is supplied by the element of negligence and imprudence. In the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of petitioners."

As a final note, there may be some suspicions as to the real intention of private complainant in instituting the action before public respondent, caution should be taken to prevent the development of circumstances that might inevitably impair the image of the public office. Private complainant is a government official himself, as such he should avoid so far as reasonably possible, a situation which would normally tend to arouse any reasonable suspicion that he is utilizing his official position for personal gain or advantage to the prejudice of party litigants or the public in general. For "there may be occasion then where the needs of the collectivity that is the government may collide with his private interest as an individual."

In closing, it must be borne in mind that the evident purpose of requiring government employees to keep a daily time record is to show their attendance in office to work and to be paid accordingly. Closely adhering to the policy of no work no pay, a daily time record is primarily, if not solely, intended to prevent damage or loss to the government as would result in instances where it pays an employee for no work done. The integrity of the daily time record as an official document, however, remains untarnished if the damage sought to be prevented has not been produced. The obligation to make entries in the daily time records of employees in the government service is a matter of administrative procedural convenience in the computation of salary for a given period, characteristically, not an outright and strict measure of professional discipline, efficiency, dedication, honesty and competence. The insignificant transgression by petitioners, if ever it is one, would not tilt the scales of justice against them, for courts must always be, as they are, the repositories of fairness and justice.⁷

Petitioner moved to reconsider the reversal of its Decision by the CA, but the motion was denied in the CA Resolution dated May 27, 2005. Hence, this petition based on the following grounds:

I

THE FILLING-UP OF ENTRIES IN THE OFFICIAL DAILY TIME RECORDS (DTRs) IS NOT A MATTER OF ADMINISTRATIVE PROCEDURAL CONVENIENCE, BUT RATHER REQUIRED BY CIVIL SERVICE LAW TO ENSURE THAT THE PROPER LENGTH OF WORK-TIME IS OBSERVED BY PUBLIC OFFICIALS AND EMPLOYEES, INCLUDING CONFIDENTIAL EMPLOYEES LIKE HEREIN PRIVATE RESPONDENTS. THE FALSIFICATION OF DTRs WOULD RENDER THE AUTHORS THEREOF ADMINISTRATIVELY LIABLE FOR DISHONESTY AND GRAVE MISCONDUCT FOR THE DAMAGING FALSE NARRATION AND THE COLLECTION OF FULL COMPENSATION FOR INEXISTENT WORK.

II

THE ELEMENT OF DAMAGE TO THE GOVERNMENT IS NOT A REQUISITE FOR ONE TO BE HELD ADMINISTRATIVELY LIABLE FOR DISHONESTY AND MISCONDUCT. ASSUMING IT IS FOR ARGUMENT’S SAKE, DAMAGE WAS CAUSED THE GOVERNMENT WHEN PRIVATE RESPONDENTS FALSIFIED THEIR DAILY TIME RECORDS IN ORDER TO COLLECT THEIR SALARIES.

III

THE ELEMENT OF INTENT OR MALICE APPLIES TO CRIMINAL PROSECUTION, NOT TO AN OFFENSE OF DISHONESTY AND MISCONDUCT.⁸

Petitioner’s first submission is that the filling-up of entries in the official DTR is not a matter of administrative procedural convenience but is a requirement by Civil Service Law to ensure that the proper length of work-time is observed by all public officials and employees, including confidential employees such as respondents. It argues that DTRs, being representations of the compensable working hours rendered by a public servant, ensure that the taxpaying public is not shortchanged. To bolster this position, petitioner cited Rule XVII on Government Office Hours of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws, to wit:

SECTION 1. It shall be the duty of each head of department or agency to require all officers and employees under him to strictly observe the prescribed office hours. When the head of office, in the exercise of discretion allows government officials and employees to leave the office during the office hours and not for official business, but to attend socials/events/functions and/or wakes/interments, the same shall be reflected in their time cards and charged to their leave credits.

SEC. 2. Each head of department or agency shall require a daily time record of attendance of all the officers and employees under him including those serving in the field or on the water, to be kept in the proper form and, whenever possible, registered in the bundy clock.

Service "in the field" shall refer to service rendered outside the office proper and service "on the water" shall refer to service rendered on board a vessel which is the usual place of work.

SEC. 3. Chiefs and Assistant Chiefs of agencies who are appointed by the President, officers who rank higher than these chiefs and assistant chiefs in the three branches of government, and other presidential appointees need not punch in the bundy clock, but attendance and all absences of such officers must be recorded.

SEC. 4. Falsification or irregularities in the keeping of time records will render the guilty officer or employee administratively liable without prejudice to criminal prosecution as the circumstances warrant.

SEC. 5. Officers and employees of all departments and agencies except those covered by special laws shall render not less than eight hours of work a day for five days a week or a total of forty hours a week, exclusive of time for lunch. As a general rule, such hours shall be from eight o’clock in the morning to twelve o’clock noon and from one o’clock to five o’clock in the afternoon on all days except Saturdays, Sundays and Holidays.

SEC. 6. Flexible working hours may be allowed subject to the discretion of the head of department or agency. In no case shall the weekly working hours be reduced in the event the department or agency adopts the flexi-time schedule in reporting for work.

SEC. 7. In the exigency of the service, or when necessary by the nature of the work of a particular agency and upon representations with the Commission by the department heads concerned, requests for the rescheduling or shifting of work schedule of a particular agency for a number of working days less than the required five days may be allowed provided that government officials and employees render a total of forty hours a week and provided further that the public is assured of core working hours of eight in the morning to five in the afternoon continuously for the duration of the entire workweek.

SEC. 8. Officers and employees who have incurred tardiness and undertime regardless of minutes per day exceeding [at least] ten times a month for two (2) consecutive months or for 2 months in a semester shall be subject to disciplinary action.⁹

Petitioner posits that, by reason of the above provisions, making false entries in the DTRs should not be treated in a cavalier fashion, but rather with a modicum of sacredness because the DTR mirrors the fundamental maxim of transparency, good governance, public accountability, and integrity in the public service pursuant to the constitutional precept that "public office is a public trust." Consequently, the officer or employee who falsifies time records should incur administrative liability.

On its second and third submissions, petitioner assailed the position of the CA that respondents cannot be held guilty of falsification because they did not cause any damage to the government and there was no intent or malice on their part when they made the false entries in their respective DTRs during the questioned period of service. According to petitioner, respondents were not criminally prosecuted for falsification under the Revised Penal Code, but were being held administratively accountable for dishonesty, grave misconduct, and falsification of official documents; thus, the elements of damage and intent or malice are not prerequisites. It further claimed that for this purpose, only substantial evidence is required, and this had been strongly established. Petitioner also argued that, even if the element of damage is mandatory, respondents had caused damage to the government when they received their full salaries for work not actually rendered.

In their Comment,¹⁰ respondents claimed that the CA correctly dismissed the administrative charges against them as the integrity of their DTRs had remained untarnished and that they acted in good faith in making the entries in their DTRs. They said that the CA clearly elaborated the legal basis for its ruling in their favor. They even argued that the administrative charges lodged by Romancito Santos were based on mere conjectures and conclusions of fact, such that it was not impossible for college students to work eight (8) hours a day and attend classes. They further claimed that petitioner failed to prove that they actually attended their classes which they were enrolled in.

Respondents also argued that petitioner erred in not having dismissed outright the administrative charges against them because, at the time the complaint was filed, the charges had already prescribed under Section 20 (5) of Republic Act No. 6770 (The Ombudsman Act of 1989), to wit:

(5) The complaint was filed after one year from the occurrence of the act or omission complained of.

They said that the acts complained of occurred in 1996 to 1997, while the case was filed only on February 2000, or after the lapse of more or less three (3) years.

Respondent Maricar also asseverated that the doctrine laid down in Aguinaldo v. Santos¹¹ should also apply to her considering that she was elected as City Councilor of Malabon City in the 2004 elections. She also claimed that the instant case adversely affected their lives, particularly in her case, for while she graduated from the University of the East College of Law in 2004, she was only able to take the bar examinations in 2005 due to the pendency of the administrative case against her. She also cited the fact that the criminal case involving the same set of facts was dismissed, insinuating that, as a result of this, the administrative case should have likewise been dismissed.

The petition is impressed with merit.

At the outset, it must be stressed that this is an administrative case for dishonesty, grave misconduct, and falsification of official document. To sustain a finding of administrative culpability only substantial evidence is required, not overwhelming or preponderant, and very much less than proof beyond reasonable doubt as required in criminal cases.¹² Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

The following facts are borne out by the records: (1) Maricar was appointed as Legislative Staff Assistant in the Office of then Councilor of Malabon, Edilberto Torres, on February 16, 1995;¹³ (2) Marian was appointed as Messenger in the same office on May 24, 1996;¹⁴ (3) at the time of Maricar’s appointment to and employment in her position (1995-1997), she was a full-time regular college student at UST;¹⁵ (4) at the time of Marian’s appointment and employment as messenger in her father’s office (1996-2000), she was a full-time regular dentistry-proper student at the College of Dentistry of Centro Escolar University;¹⁶ (5) during the employment of respondents in government service, they submitted DTRs indicating that they religiously reported for work from 8:00 a.m. to 5:00 p.m. during work days;¹⁷ (6) by reason thereof, respondents collected their full salaries during the entire time of their employment in their respective positions;¹⁸ and, (7) these all occurred with the full knowledge and consent of their father.¹⁹

It is also worthy to note that the factual finding made by petitioner, i.e., that respondents made false entries in their respective DTRs for the period subject of this case, was affirmed by the CA in the assailed Decision dated January 6, 2004.²⁰

On the basis of these established facts, petitioner was correct in holding respondents administratively guilty of dishonesty and falsification of official document. Dishonesty is defined as the "disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack of integrity."²¹ Falsification of an official document, as an administrative offense, is knowingly making false statements in official or public documents. Both are grave offenses under the Uniform Rules on Administrative Cases in the Civil Service, which carry with it the penalty of dismissal on the first offense.²²

Falsification of DTRs amounts to dishonesty.²³ The evident purpose of requiring government employees to keep a time record is to show their attendance in office to work and to be paid accordingly. Closely adhering to the policy of no work-no pay, a DTR is primarily, if not solely, intended to prevent damage or loss to the government as would result in instances where it pays an employee for no work done.²⁴

Respondents’ claim of good faith, which implies a sincere intent not to do any falsehood or to seek any undue advantage, cannot be believed. This Court pronounced –

Good faith, here understood, is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. An individual’s personal good faith is a concept of his own mind and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of one’s right, ignorance of a superior claim, and absence of intention to overreach another. x x x²⁵

In this case, respondents knew fully well that the entries they made in their respective DTRs were false considering that it was physically impossible for them to have reported for full work days when during those times they were actually attending their regular classes, which undoubtedly would take up most of the daytime hours of the weekdays. With this knowledge, respondents did not bother to correct the DTR entries to honestly reflect their attendance at their workplace and the actual work they performed. Worse, they repeatedly did this for a long period of time, consequently allowing them to collect their full salaries for the entire duration of their public employment as staff members of their father.

Respondents’ protestations that petitioner failed to prove their actual attendance in their regular classes and thus, suggest that they may not have been attending their classes, is preposterous and incredible, simply because this is not in accord with the natural course of things. The voluminous documentary evidence subpoenaed by petitioner from UST and Centro Escolar University showing the schedule of classes of respondents during the questioned period, along with the certificates of matriculation painstakingly perused by GIO Generoso, strongly militates against this claim. It would be the height of absurdity on the part of respondents to voluntarily enroll in their respective courses, pay school fees, and not attend classes but instead report for work. Even if this was remotely possible, such a situation would be irreconcilable with the respondents having graduated from their respective courses.

Without doubt, the scrutiny of the numerous school documents, the DTRs submitted, and the payrolls from the office of the then Municipal Accountant of Malabon overwhelmingly revealed that the classes in which respondents enrolled for several school years were in stark conflict with the time entries in the DTRs, and several payroll sheets showed that respondents collected their full salaries corresponding to the DTR entries. These findings of fact made by petitioner, being supported by substantial evidence, are conclusive;²⁶ more so that the finding of false entries in the DTRs was affirmed by the CA.

Thus, the CA gravely erred when it exonerated respondents from administrative guilt based on the findings of fact of petitioner which it even affirmed. The jurisprudence²⁷ adopted by the appellate court in laying the legal basis for its ruling does not apply to the instant case because said cases pertain to criminal liability for Falsification of Public Document under the Revised Penal Code. The element of damage need not be proved to hold respondents administratively liable.

But it cannot even be said that no damage was suffered by the government. When respondents collected their salaries on the basis of falsified DTRs, they caused injury to the government. The falsification of one’s DTR to cover up one’s absences or tardiness automatically results in financial losses to the government because it enables the employee concerned to be paid salaries and to earn leave credits for services which were never rendered. Undeniably, the falsification of a DTR foists a fraud involving government funds.²⁸

Likewise, the existence of malice or criminal intent is not a prerequisite to declare the respondents administratively culpable. What is merely required is a showing that they made entries in their respective DTRs knowing fully well that they were false. This was evident in the many documents viewed and reviewed by petitioner through GIO Generoso.

On the issue of prescription, we agree with petitioner’s contention that the Office of the Ombudsman is given by R.A. No. 6770 a wide range of discretion whether or not to proceed with an investigation of administrative offenses even beyond the expiration of one (1) year from the commission of the offense.²⁹

Likewise, the dismissal of the criminal case involving the same set of facts cannot benefit respondents to cause the dismissal of the administrative charges against them. As we held in Tecson v. Sandiganbayan³⁰ --

[I]t is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of a duty or for a wrongful act or omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. x x x

Hence, there was no impropriety committed by petitioner when it conducted the administrative investigation which led to the finding of guilt against respondents.

As regards the applicability of Aguinaldo, our pronouncement therein is clear that condonation of an administrative offense takes place only when the public official is re-elected despite the pendency of an administrative case against him. In the case of Maricar, prior to her election as Councilor of now Malabon City, she held an appointive, not an elective, position, i.e., Legislative Staff Assistant, appointed by her very own father, then Councilor Edilberto Torres.

As mentioned above, falsification of a DTR (an official document) amounts to dishonesty. Thus, respondents should be held administratively liable. While dismissal was originally recommended for imposition on respondents, the penalty was eventually tempered to suspension of one (1) year without pay.

We agree with the imposition of the lower penalty considering that respondents’ public employment with the then Sangguniang Bayan of Malabon, even while they were regular college students, was of a confidential character, and the arrangement was with the full knowledge and consent of their father who appointed them to their positions.

While this Court recognizes the relative laxity given to confidential employees in terms of adjusted or flexible working hours, substantial non-attendance at work as blatant and glaring as in the case of respondents cannot be countenanced. Collecting full salaries for work practically not rendered is simply, downright reprehensible. Inevitably, this leads to the erosion of the public’s faith in and respect for the government.

WHEREFORE, the Decision dated January 6, 2004 and the Resolution dated May 27, 2005 of the Court of Appeals are REVERSED and SET ASIDE, and the Decision of the Office of the Ombudsman dated November 9, 2001 is REINSTATED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson
MA. ALICIA AUSTRIA-MARTINEZ Associate Justice	*RENATO C. CORONA Associate Justice
RUBEN T. REYES Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes
^* In lieu of Associate Justice Minita V. Chico-Nazario per Special Order No. 484 dated January 11, 2008.
¹ Rollo, pp. 10-37.
² Id. at 39-45.
³ Id. at 48-52.
⁴ Id. at 219-232.
⁵ G.R. No. 94115, August 21, 1992, 212 SCRA 768, 773.
⁶ Rollo, pp. 181-197.
⁷ Id. at 42-44.
⁸ Id. at 17-18.
⁹ Id. at 22-23.
¹⁰ Id. at 169-180.
¹¹ Supra note 5.
¹² Apolinario v. Flores, G.R. No. 152780, January 22, 2007, 512 SCRA 113, 119; Resngit-Marquez v. Judge Llamas, Jr., 434 Phil. 184, 203 (2002), Mariano v. Roxas, 434 Phil. 742, 749 (2002), and Liguid v. Camano, Jr., 435 Phil. 695, 706 (2002).
¹³ Finding of fact of petitioner and not denied (therefore, admitted) by respondents.
¹⁴ Id.
¹⁵ Id.
¹⁶ Id.
¹⁷ Id.
¹⁸ Id.
¹⁹ Id.
²⁰ The Court of Appeals stated, "We may agree with the findings of fact made by public respondent, but the inference made in relation to the offense committed that will merit suspension from service is manifestly mistaken." Rollo, pp. 41-42. (Emphasis supplied)
²¹ Black’s Law Dictionary, 6^th Ed. (1990).
²² CSC Resolution No. 991936 (1999), Rule IV, Section 52 (A) (1) & (6).
²³ Re: Falsification of Daily Time Records of Maria Fe P. Brooks, A.M. No. P-05-2086, October 20, 2005, 473 SCRA 483, 488; Administrative Circular No. 2-99 (Re: Strict Observance of Working Hours and Disciplinary Action for Absenteeism and Tardiness ), item II, 15 January 1999, viz.:
Absenteeism and tardiness, even if such do not qualify as "habitual" or "frequent" under Civil Service Commission Memorandum Circular No. 04, Series of 1991, shall be dealt with severely, and any falsification of time records to cover up for such absenteeism and/or tardiness shall constitute gross dishonesty or serious misconduct. (Emphasis supplied) ²⁴ Beradio v. Court of Appeals, 191 Phil. 153, 168 (1981).
²⁵ PNB v. De Jesus, 458 Phil. 454, 459-460 (2003).
²⁶ R.A. No. 6770, Section 27, 5^th paragraph.
²⁷ Beradio v. Court of Appeals, supra note 24; Lecaroz v. Sandiganbayan, 364 Phil. 890 (1999).
²⁸ Flores v. Layosa, G.R. No. 154714, August 12, 2004, 436 SCRA 337, 353.
²⁹ Section 20. Exceptions. – The Office of the Ombudsman MAY not conduct the necessary investigation of any administrative act or omission complained of if it believes that:
x x x x
(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of. (Emphasis supplied) ³⁰ 376 Phil. 191, 198-199 (1999).

ANTONIO F. TRILLANES IV, petitioner, vs. HON. OSCAR PIMENTEL, SR

doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge.

EN BANC

G.R. No. 179817             June 27, 2008
ANTONIO F. TRILLANES IV, petitioner,
vs.
HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT- BRANCH 148, MAKATI CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN. BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBEÑA, respondents.

D E C I S I O N

CARPIO MORALES, J.:

At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded the resignation of the President and key national officials.

Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion.¹ A series of negotiations quelled the teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening.

In the aftermath of this eventful episode dubbed as the "Oakwood Incident," petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d’etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784, "People v. Capt. Milo D. Maestrecampo, et al."

Close to four years later, petitioner, who has remained in detention,² threw his hat in the political arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007.³

Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an "Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests"⁴ (Omnibus Motion). Among his requests were:

(a) To be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or elsewhere) particularly when the Senate is in session, and to attend the regular and plenary sessions of the Senate, committee hearings, committee meetings, consultations, investigations and hearings in aid of legislation, caucuses, staff meetings, etc., which are normally held at the Senate of the Philippines located at the GSIS Financial Center, Pasay City (usually from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.);

(b) To be allowed to set up a working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop computer and the appropriate communications equipment (i.e., a telephone line and internet access) in order that he may be able to work there when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session. The costs of setting up the said working area and the related equipment and utility costs can be charged against the budget/allocation of the Office of the accused from the Senate;

(c) To be allowed to receive members of his staff at the said working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times of the day particularly during working days for purposes of meetings, briefings, consultations and/or coordination, so that the latter may be able to assists (sic) him in the performance and discharge of his duties as a Senator of the Republic;

(d) To be allowed to give interviews and to air his comments, reactions and/or opinions to the press or the media regarding the important issues affecting the country and the public while at the Senate or elsewhere in the performance of his duties as Senator to help shape public policy and in the light of the important role of the Senate in maintaining the system of checks and balance between the three (3) co-equal branches of Government;

(e) With prior notice to the Honorable Court and to the accused and his custodians, to be allowed to receive, on Tuesdays and Fridays, reporters and other members of the media who may wish to interview him and/or to get his comments, reactions and/or opinion at his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, particularly when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session; and

(f) To be allowed to attend the organizational meeting and election of officers of the Senate and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate of the Philippines located at the GSIS Financial Center, Pasay City.⁵

By Order of July 25, 2007,⁶ the trial court denied all the requests in the Omnibus Motion. Petitioner moved for reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim them down to three.⁷ The trial court just the same denied the motion by Order of September 18, 2007.⁸

Hence, the present petition for certiorari to set aside the two Orders of the trial court, and for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or transacting business with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and guests and permit him to attend all sessions and official functions of the Senate. Petitioner preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to convene his staff, resource persons and guests⁹ at the Marine Brig.

Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen. Hermogenes Esperon (Esperon); Philippine Navy’s Flag Officer-in-Command, Vice Admiral Rogelio Calunsag; Philippine Marines’ Commandant, Major Gen. Benjamin Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col. Luciardo Obeña (Obeña).

Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30, 2007, been in the custody of the Philippine National Police (PNP) Custodial Center following the foiled take-over of the Manila Peninsula Hotel¹⁰ the day before or on November 29, 2007.

Such change in circumstances thus dictates the discontinuation of the action as against the above-named military officers-respondents. The issues raised in relation to them had ceased to present a justiciable controversy, so that a determination thereof would be without practical value and use. Meanwhile, against those not made parties to the case, petitioner cannot ask for reliefs from this Court.¹¹ Petitioner did not, by way of substitution, implead the police officers currently exercising custodial responsibility over him; and he did not satisfactorily show that they have adopted or continued the assailed actions of the former custodians.¹²

Petitioner reiterates the following grounds which mirror those previously raised in his Motion for Reconsideration filed with the trial court:

I.

THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS:

A.

UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE, ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL ENJOYS THE PRESUMPTION OF INNOCENCE;

B.

THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2) COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP D’ETAT", A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE;

C.

THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING ARRESTED. THE ACCUSED/ PETITIONER VOLUNTARILY SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;

II.

GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE BRIG’S COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE SESSIONS;

III.

ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR OF THE REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO WORK AND SERVE HIS MANDATE AS A SENATOR;

- AND -

IV.

MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS IN THE CASE OF FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER ARMM GOV. NUR MISUARI.¹³

The petition is bereft of merit.

In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar to petitioner’s Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the presumption of innocence is still in his favor.

Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup d’etat which is regarded as a "political offense."

Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against the rampant and institutionalized practice of graft and corruption in the AFP.

In sum, petitioner’s first ground posits that there is a world of difference between his case and that of Jalosjos respecting the type of offense involved, the stage of filing of the motion, and other circumstances which demonstrate the inapplicability of Jalosjos.¹⁴

A plain reading of. Jalosjos suggests otherwise, however.

The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is not a reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of movement.¹⁵

It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of justice. No less than the Constitution provides:

All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.¹⁶ (Underscoring supplied)

The Rules also state that no person charged with a capital offense,¹⁷ or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal action.¹⁸

That the cited provisions apply equally to rape and coup d’etat cases, both being punishable by reclusion perpetua,¹⁹ is beyond cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no distinction as to the political complexion of or moral turpitude involved in the crime charged.

In the present case, it is uncontroverted that petitioner’s application for bail and for release on recognizance was denied.²⁰ The determination that the evidence of guilt is strong, whether ascertained in a hearing of an application for bail²¹ or imported from a trial court’s judgment of conviction,²² justifies the detention of an accused as a valid curtailment of his right to provisional liberty. This accentuates the proviso that the denial of the right to bail in such cases is "regardless of the stage of the criminal action." Such justification for confinement with its underlying rationale of public self-defense²³ applies equally to detention prisoners like petitioner or convicted prisoners-appellants like Jalosjos.

As the Court observed in Alejano v. Cabuay,²⁴ it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security; and while pre-trial detainees do not forfeit their constitutional rights upon confinement, the fact of their detention makes their rights more limited than those of the public.

The Court was more emphatic in People v. Hon. Maceda:²⁵

As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention.²⁶ (Underscoring supplied)

These inherent limitations, however, must be taken into account only to the extent that confinement restrains the power of locomotion or actual physical movement. It bears noting that in Jalosjos, which was decided en banc one month after Maceda, the Court recognized that the accused could somehow accomplish legislative results.²⁷

The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of civil and political rights.

Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of innocence during the period material to the resolution of their respective motions. The Court in Jalosjos did not mention that the presumption of innocence no longer operates in favor of the accused pending the review on appeal of the judgment of conviction. The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails.²⁸

In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his agreeing to a consensus with the prosecution that media access to him should cease after his proclamation by the Commission on Elections.²⁹

Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk since he voluntarily surrendered to the proper authorities and such can be proven by the numerous times he was allowed to travel outside his place of detention.

Subsequent events reveal the contrary, however. The assailed Orders augured well when on November 29, 2007 petitioner went past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain statements. The account, dubbed this time as the "Manila Pen Incident,"³⁰ proves that petitioner’s argument bites the dust. The risk that he would escape ceased to be neither remote nor nil as, in fact, the cause for foreboding became real.

Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount of bail and in canceling a discretionary grant of bail.³¹ In cases involving non-bailable offenses, what is controlling is the determination of whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it is neither a matter of right nor of discretion.³²

Petitioner cannot find solace in Montano v. Ocampo³³ to buttress his plea for leeway because unlike petitioner, the therein petitioner, then Senator Justiniano Montano, who was charged with multiple murder and multiple frustrated murder,³⁴ was able to rebut the strong evidence for the prosecution. Notatu dignum is this Court’s pronouncement therein that "if denial of bail is authorized in capital cases, it is only on the theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the jury."³⁵ At the time Montano was indicted, when only capital offenses were non-bailable where evidence of guilt is strong,³⁶ the Court noted the obvious reason that "one who faces a probable death sentence has a particularly strong temptation to flee."³⁷ Petitioner’s petition for bail having earlier been denied, he cannot rely on Montano to reiterate his requests which are akin to bailing him out.

Second, petitioner posits that, contrary to the trial court’s findings, Esperon did not overrule Obeña’s recommendation to allow him to attend Senate sessions. Petitioner cites the Comment³⁸ of Obeña that he interposed no objection to such request but recommended that he be transported by the Senate Sergeant-at-Arms with adequate Senate security. And petitioner faults the trial court for deeming that Esperon, despite professing non-obstruction to the performance of petitioner’s duties, flatly rejected all his requests, when what Esperon only disallowed was the setting up of a political office inside a military installation owing to AFP’s apolitical nature.³⁹

The effective management of the detention facility has been recognized as a valid objective that may justify the imposition of conditions and restrictions of pre-trial detention.⁴⁰ The officer with custodial responsibility over a detainee may undertake such reasonable measures as may be necessary to secure the safety and prevent the escape of the detainee.⁴¹ Nevertheless, while the comments of the detention officers provide guidance on security concerns, they are not binding on the trial court in the same manner that pleadings are not impositions upon a court.

Third, petitioner posits that his election provides the legal justification to allow him to serve his mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount to removing him from office, depriving the people of proper representation, denying the people’s will, repudiating the people’s choice, and overruling the mandate of the people.

Petitioner’s contention hinges on the doctrine in administrative law that "a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor."⁴²

The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no "prior term" to speak of. In a plethora of cases,⁴³ the Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner’s electoral victory only signifies pertinently that when the voters elected him to the Senate, "they did so with full awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison."⁴⁴

In once more debunking the disenfranchisement argument,⁴⁵ it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law.

The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. x x x Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.⁴⁶ (Underscoring supplied)

Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been charged with non-bailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend "social functions." Finding no rhyme and reason in the denial of the more serious request to perform the duties of a Senator, petitioner harps on an alleged violation of the equal protection clause.

In arguing against maintaining double standards in the treatment of detention prisoners, petitioner expressly admits that he intentionally did not seek preferential treatment in the form of being placed under Senate custody or house arrest,⁴⁷ yet he at the same time, gripes about the granting of house arrest to others.

Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.⁴⁸ That this discretion was gravely abused, petitioner failed to establish. In fact, the trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office⁴⁹ on June 29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-around,⁵⁰ petitioner largely banks on these prior grants to him and insists on unending concessions and blanket authorizations.

Petitioner’s position fails. On the generality and permanence of his requests alone, petitioner’s case fails to compare with the species of allowable leaves. Jaloslos succinctly expounds:

x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant’s status to that of a special class, it also would be a mockery of the purposes of the correction system.⁵¹

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice
LEONARDO A. QUISUMBING Associate Justice	CONSUELO YNARES-SANTIAGO Associate Justice
ANTONIO T. CARPIO Associate Justice	MA. ALICIA AUSTRIA-MARTINEZ Associate Justice
RENATO C. CORONA Associate Justice	ADOLFO S. AZCUNA Associate Justice
DANTE O. TINGA Associate Justice	MINITA V. CHICO-NAZARIO Associate Justice
PRESBITERO J. VELASCO, JR. Associate Justice	ANTONIO EDUARDO B. NACHURA Associate Justice
RUBEN T. REYES Associate Justice	TERESITA J. LEONARDO-DE CASTRO Associate Justice
ARTURO D. BRION Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes
¹ The validity of both issuances was decided by the Court in SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004), notwithstanding the petitions’ mootness occasioned by Proclamation No. 435 (August 1, 2003) that lifted the declaration of the state of rebellion. It ruled that the declaration of a state of rebellion is an utter superfluity devoid of any legal significance.
² Petitioner had been detained at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City since June 13, 2006. Prior thereto, he was detained at the ISAFP Detention Cell; rollo, pp. 8, 278.
³ Garnering 11,189,671 votes, petitioner was proclaimed the 11th Senator-Elect in the May 2007 Elections by Resolution No. NBC 07-28 of June 15, 2007; rollo, pp. 8, 33, 58-59; Constitution, Art. VI, Sec. 4.
⁴ Rollo, pp. 61-65.
⁵ Id. at 62-64. For items (d) and (e), petitioner further manifested that he is willing to abide by the restrictions previously imposed by the trial court when it previously granted him access to media, to wit: (a) that he will not make any comments relating to the merits of the instant case or otherwise make statements tending to prejudge or affect the outcome of the case (i.e., sub judice statements); and (b) that he will not make any libelous statements or seditious remarks against the Government.
⁶ Id. at 89-99.
⁷ Id. at 114-115. Petitioner reiterated only his requests in paragraphs (a), (d), (e) with the additional concession that "the Senate Sgt-at-Arms or his duly authorized representative (with adequate Security) be authorized to pick up and transport herein accused from his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, to the Senate and back every time he needs to attend the official functions of the Senate when the Senate is in regular session[.]"
⁸ Id. at 137-147.
⁹ Id. at. 14-15. Petitioner alleges that several government officials and private individuals met with him at the Marine Brig from July 2, 2007 to September 26, 2007. The initial organizational meeting of the Senate Committee on the Civil Service and Government Reorganization, of which he is the Chairperson, was held inside the Marine Brig on September 20, 2007. On September 27, 2007, however, petitioner’s staff, resource persons and guests were refused entry, causing the cancellation of the meeting.
¹⁰ Id. at 297.
¹¹ Cf. Allied Banking Corporation v. Court of Appeals, G.R. No. 56279, February 9, 1993, 218 SCRA 578; Matuguina Integrated Wood Products, Inc. v. CA, 331 Phil. 795 (1996) following the legal axiom that no person shall be affected by proceedings to which he is a stranger.
¹² Vide Rules of Court, Rule 3, Sec. 17 which also accords the party or officer to be affected a reasonable notice and an opportunity to be heard; Heirs of Mayor Nemencio Galvez v. CA, 325 Phil. 1028 (1996); Rodriguez v. Jardin, G.R. No. 141834, July 30, 2007, 528 SCRA 516.
¹³ Rollo, pp. 22-24.
¹⁴ 381 Phil. 690 (2000).
¹⁵ Vide People v. Jalosjos, supra at 707.
¹⁶ Art. III, Sec. 13.
¹⁷ Defined in the Rules of Court, Rule 114, Sec. 6; vide Republic Act No. 7659 (1993); but cf. Republic Act No. 9346 (2006).
¹⁸ Rules of Court, Rule 114, Sec. 7.
¹⁹ Vide Revised Penal Code, Arts. 266-B & 135.
²⁰ Rollo, pp. 86, 257 citing the RTC Orders of July 24, 2004 and June 13, 2006, respectively.
²¹ Rules of Court, Rule 114, Sec. 8; vide Estrada v. Sandiganbayan, 427 Phil. 820, 864 (2002); People v. Manes, 362 Phil. 569, 576 (1999).
²² SC Administrative Circular No. 2-92 (January 20, 1992); People v. Divina, G.R. Nos. 93808-09, April 7, 1993, 221 SCRA 209, 223; People v. Fortes, G.R. No. 90643, June 25, 1993, 223 SCRA 619, 625-626; Padilla v. CA, 328 Phil. 1266, 1269-1270 (1996); People v. Gomez, 381 Phil. 870 (2000).
²³ People v. Jalosjos, supra at 703, which states the rationale that society must protect itself.
²⁴ G.R. No. 160792, August 25, 2005, 468 SCRA 188, 212.
²⁵ 380 Phil. 1 (2000).
²⁶ People v. Hon. Maceda, 380 Phil. 1, 5 (2000).
²⁷ People v. Jalosjos, supra at 706, even while remarking that the accused should not even have been allowed by the prison authorities to perform certain acts in discharge of his mandate.
²⁸ Mangubat v. Sandiganbayan, 227 Phil. 642 (1986).
²⁹ Rollo, pp. 68, 91.
³⁰ Supra note 10.
³¹ Vide Rules of Court, Rule 114, Secs. 5, 8.
³² Obosa v. Court of Appeals, 334 Phil. 253, 271 (1997). In exceptional cases, the court may consider serious illness or an ailment of such gravity that his continued confinement will endanger his life or permanently impair his health. [De la Rama v. People’s Court, 77 Phil. 461 (1946) cited in Borinaga v. Tamin, A.M. No. RTJ-93-936, September 10, 1993, 226 SCRA 206, 213; vide People v. Fitzgerald, G.R. No. 149723, October 27, 2006, 505 SCRA 573, 585-586].
³³ No. L-6352, January 29, 1953, 49 O.G. No. 5 (May 1953), 1855.
³⁴ Notably, at that time, "reclusion temporal in its maximum period to death" was the imposable penalty for murder under Article 248 of the Revised Penal Code prior to Republic Act No. 7659 (1993) which, inter alia, increased the penalty.
³⁵ Supra note 33.
³⁶ Vide Rules on Criminal Procedure (1940), Rule 110, Sec. 6; Rules on Criminal Procedure (1964), Rule 114, Sec. 6.
³⁷ Bravo, Jr. v. Borja, No. L-65228, February 18, 1985, 134 SCRA 466, 472; vide Obosa v. Court of Appeals, supra at 268-269 citing De la Camara v. Enage, 41 SCRA 1, 6-7 (1971). It must be understood, however, that the standard of strong evidence of guilt is markedly higher than the standard of probable cause sufficient to initiate criminal cases. (Vide Cabrera v. Marcelo, G.R. Nos. 157419-20, December 13, 2004, 446 SCRA 207, 217).
³⁸ Rollo, pp. 71-74. Obeña rejected, however, his request to set up a working area at his place of detention, citing space and security reasons, but stated that other areas within the Marine Barracks Manila can be considered as an immediate and temporary working area.
³⁹ Id. at 31-32.
⁴⁰ Alejano v. Cabuay, supra at 206.
⁴¹ Republic Act No. 7438 (1992) or "An Act Defining Certain Rights of the Person Arrested, Detained or Under Custodial Investigation, as well as the Duties of the Arresting, Detaining, and Investigating Officers and Providing Penalties for Violations Thereof," Sec. 4, last par.
⁴² Aguinaldo v. Santos, G.R. No. 94115, August 21, 1992, 212 SCRA 768, 773; Salalima v. Guingona, 326 Phil. 847, 919-920 (1996).
⁴³ Aguinaldo v. Santos, supra at 773-774; People v. Jalosjos, supra at 703; Cabrera v. Marcelo, supra at 21-6-217; People v. Toledano, 387 Phil. 957 (2000).
⁴⁴ People v. Jalosjos, supra at 706.
⁴⁵ People v. Jalosjos, supra; cf. Government of the United States of America v. Puruganan, 438 Phil. 417, 456-458 (2002).
⁴⁶ People v. Jalosjos, supra at 707.
⁴⁷ Rollo, pp. 75-76.
⁴⁸ People v. Jalosjos, supra at 704.
⁴⁹ Rollo, p. 60; before Barangay Chairman Ruben Gatchalian of Barangay 169, Deparo, Caloocan City.
⁵⁰ Id. at 34-35.
⁵¹ People v. Jalosjos, supra at 704.

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners, vs. OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN,

EN BANC

G.R. No. 180917               April 23, 2010
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,

D E C I S I O N

CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the October 11, 2007 Decision and the December 13, 2007 Resolution of the Court of Appeals¹ in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of Duty.

Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal High School² (TMHS) since the public school in the poblacion area would no longer admit high school freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor consulted Salumbides who suggested that the construction of the two-classroom building be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented "by administration," as had been done in a previous classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She added, however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.

The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002.³

The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of the projects based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate of P222,000.

Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included the projects in the list of local government projects scheduled for bidding on January 25, 2002 which, together with the January 31, 2002 public bidding, failed.

The mayor was to admit later his expectation or assumption of risk on reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said "I" because up to the time of the failed 2 biddings I have shouldered the "vale" of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo was at the time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials for the project had been accomplished. As a matter of fact, payments for the expenses on these 2 projects have been made only starting 19 March 2002. x x x⁴ (underscoring supplied)

The construction of the projects commenced without any approved appropriation and ahead of the public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an earlier project that was "implemented in the same manner, using the same source of fund and for the same reason of urgency" which was allowed "because the building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government is presently negotiating to buy."⁵

Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the implementation of infrastructure projects to be executed "by administration," while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan.

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a complaint⁶ against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino.

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code.

By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the 2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005.

Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required documents were among those razed by fire on April 14, 2004 that hit the Office of the Municipal Accountant where they were temporarily stored due to lack of space at the Provincial Auditor's Office.1avvphi1

On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from office for a maximum period of six months with a stern warning against a similar repetition. It also approved on November 2, 2006 the March 27, 2006 Order⁷ denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.

For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The verification portion of the petition does not carry a certification against forum shopping.⁸

The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading.⁹

Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied by Resolution of January 15, 2008¹⁰ for non-compliance with the required showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,¹¹ later granted their motion for reconsideration with motion to admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period.

Moreover, in their Manifestation/Motion¹² filed a day later, petitioners prayed only for the admission of nine additional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted a Motion with Appeal which is different from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors¹³ and already contains a certification against forum shopping¹⁴ embedded in the Verification. The two different Verifications were notarized by the same notary public and bear the same date and document number.¹⁵ The rectified verification with certification, however, was filed beyond the reglementary period.

Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation¹⁶ to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.

The Court rejects petitioners' thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija¹⁷ issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that "[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."¹⁸

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the people.¹⁹ (underscoring supplied)

Lizares v. Hechanova, et al.²⁰ replicated the doctrine. The Court dismissed the petition in that case for being moot, the therein petitioner "having been duly reelected, is no longer amenable to administrative sanctions."²¹

Ingco v. Sanchez, et al.²² clarified that the condonation doctrine does not apply to a criminal case.²³ Luciano v. The Provincial Governor, et al.,²⁴ Olivarez v. Judge Villaluz,²⁵ and Aguinaldo v. Santos²⁶ echoed the qualified rule that reelection of a public official does not bar prosecution for crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a Senator and a Member of the House of Representatives.²⁷

Salalima v. Guingona, Jr.²⁸ and Mayor Garcia v. Hon. Mojica²⁹ reinforced the doctrine. The condonation rule was applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's culpability was committed prior to the date of reelection.

Petitioners' theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor³⁰ where the Court found no basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president.³¹ (emphasis and underscoring supplied)

Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections,³² the Court applied the four-fold test in an equal protection challenge³³ against the resign-to-run provision, wherein it discussed the material and substantive distinctions between elective and appointive officials that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

x x x x

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

The electorate's condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latter's actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings. This the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts.³⁴ As a rule, the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes intentional.³⁵ There can hardly be conspiracy to commit negligence.³⁶

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting from either carelessness or indifference.³⁷ In the present case, petitioners fell short of the reasonable diligence required of them, for failing to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the projects before stamping their imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to uphold the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects without prior competitive bidding."³⁸ As pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on "matters related to upholding the rule of law."³⁹ Indeed, a legal officer who renders a legal opinion on a course of action without any legal basis becomes no different from a lay person who may approve the same because it appears justified.

As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than registering her written objection⁴⁰ as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that the funding for the projects should have been taken from the "capital outlays" that refer to the appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of normal local government operations within the fiscal year.⁴¹

In Office of the Ombudsman v. Tongson,⁴² the Court reminded the therein respondents, who were guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six months, the Court finds the imposition of suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which careful persons use in the management of their affairs.⁴³

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.⁴⁴

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araña, are suspended from office for three (3) months without pay.

SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO Associate Justice	RENATO C. CORONA Associate Justice
PRESBITERO J. VELASCO, JR. Associate Justice	TERESITA J. LEONARDO-DE CASTRO Associate Justice
ANTONIO EDUARDO B. NACHURA Associate Justice	ARTURO D. BRION Associate Justice
DIOSDADO M. PERALTA Associate Justice	MARIANO C. DEL CASTILLO Associate Justice
MARTIN S. VILLARAMA, JR. Associate Justice	LUCAS P. BERSAMIN Associate Justice
ROBERTO A. ABAD Associate Justice	JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA
Associate Justice

C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

¹ Seventh Division then composed of Justice Remedios A. Salazar-Fernando, chairperson and ponente, and Justices Rosalinda Asuncion-Vicente and Enrico A. Lanzanas as members.

² TMHS was being subsidized by the municipal government of Tagkawayan as it had not yet been included in the regular budget of the Department of Education.

³ Rollo, pp. 248-249.
⁴ Counter Affidavit, id. at 238.
⁵ Id. at 243.

⁶ The criminal aspect of the case docketed as Case No. OMB-L-C-02-0426-E deals with violations of paragraphs (a), (e), (g) and (i) of Section 3 of Republic Act No. 3019 (1960) or the Anti-Graft and Corrupt Practices Act; paragraph (c) of Sections 366 and 369, paragraph (d) of Sections 534, 355 and 356 of Republic Act No. 7160 (1991) or the Local Government Code; and Article 220 of the Revised Penal Code.

⁷ Upon the recommendation of Graft Investigator and Prosecution Officer I (GIPO) Ma. Theresa D. Wu, the Office of the Ombudsman modified the earlier recommendation of GIPO Mary Ayn T. Punzalan to absolve Glenda and reprimand Salumbides.

⁸ Vide rollo, p. 53.

⁹ Negros Oriental Planters Association, Inc. (NOPA) v. Presiding Judge of RTC-Negros Occidental, Br. 52, Bacolod City, G.R. No. 179878, Decmber 24, 2008, 575 SCRA 575, 583-584.

¹⁰ Rollo, p. 24.
¹¹ Id. at 277.
¹² Id. at 154-155.

¹³ Vide Rules of Court, Rule 45, Sec. 4. Petitioners offer the following assignment of errors:

1. It was error for the Honorable Court of Appeals to deny the petitioners the benefit of the case of Arturo B. Pascual v. Prov. Board of Nueva Ecija;

2. It was error on the Honorable Court of Appeals when it ruled that the petitioners including Mayor Vicente E. Salumbides III were all guilty of conspiracy; [and]

3. It was error on the part of the Honorable Court of Appeals when it affirmed the ruling of the Honorable Ombudsman finding petitioners guilty of simple neglect of duty[,] for which they [were] meted the penalty of suspension from office of a maximum period of six (6) months. (italics supplied) Rollo, pp. 173-174.

¹⁴ Vide rollo, 184-185.
¹⁵ Compare supra notes 8 and 14.

¹⁶ Conducto v. Monzon, A.M. No. MTJ-98-1147, July 2, 1998, 291 SCRA 619, 634 even declared that no ruling to the contrary had even rippled this doctrine.

¹⁷ 106 Phil. 406 (1959).
¹⁸ Id. at 471.
¹⁹ Id. at 472.
²⁰ 123 Phil. 916 (1966).
²¹ Id. at 919.
²² 129 Phil. 553 (1967).

²³ Id. at 556. It was held that "a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a pubic officer is concerned. Also, under our Constitution, it is only the President who may grant the pardon of a criminal offense."

²⁴ 138 Phil. 546 (1969). Aside from the lack of distinction as to time of commission under the Anti-Graft and Corrupt Practices Act, the Court pointed out that one of the imposable penalties was perpetual disqualification from public office, which extends beyond a particular term of office. It remarked that an official may amass wealth through graft and corrupt practices and thereafter use the same to purchase reelection and thereby launder his evil acts. The Court further ruled that the suspension under said statute is not self-operative as it needs to be ordered by the court in which the criminal case is filed.

²⁵ 156 Phil. 137 (1974). It was held that since the criminal prosecution is not abated by the fact of reelection, the pendency of a criminal case under a valid Information under the Anti-Graft and Corrupt Practices Act supplies the legal basis for the suspension from office in the subsequent term in the event of reelection. It added, however, that the suspension order issued during one term does not automatically apply or extend to the new term to which the suspended official had been reelected, in which case the trial court needs to issue anew a supplemental order of suspension.

²⁶ G.R. No. 94115, August 21, 1992, 212 SCRA 768.

²⁷ Vide Office of the Ombudsman v. Evangelista, G.R. No. 177211, March 13, 2009, 581 SCRA 350, 361; Trillanes IV v. Pimentel, Sr., G.R. No. 179817, June 27, 2008, 556 SCRA 471, 488; Cabrera v. Marcelo, G.R. Nos. 157419-20, December 13, 2004, 446 SCRA 207, 216-217; People v. Judge Toledano, 387 Phil. 957, 964 (2000); People v. Jalosjos, 381 Phil. 690, 702-703 (2000).

²⁸ 326 Phil. 847 (1996). Citing sound public policy, the Court added that to rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts allegedly committed during his prior term, such that his second term may thus be devoted to defending himself in those cases to the detriment of public service.

²⁹ 372 Phil. 892 (1999). The Court stated that there is the presumption that the people voted for an official with knowledge of his character, precisely to eliminate the need to determine in factual terms the extent of this knowledge, which is an obviously impossible undertaking.

³⁰ G.R. No. 168766, May 22, 2008, 554 SCRA 160.
³¹ Id. at 179-180.
³² G.R. No. 189698, February 22, 2010.

³³ Id., citing People v. Cayat, 68 Phil. 12, 18 (1939). The test has four requisites: (1) the classification rests on substantial distinctions; (2) it is germane to the purposes of the law; (3) it is not limited to existing conditions only; and (4) it applies equally to all members of the same class.

³⁴ Office of the Ombudsman v. Lazaro-Baldazo, G.R. No. 170815, February 2, 2007, 514 SCRA 141.

³⁵ Compare with gross neglect of duty (vide Hao v. Andres, A.M. No. P-07-2384, June 18, 2008, 555 SCRA 8). In Civil Service Commission v. Rabang, (G.R. No. 167763, March 14, 2008, 548 SCRA 540, 547), gross neglect of duty or gross negligence refers to "negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences, insofar as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to give to their own property. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable." In Report on the Alleged Spurious Bailbonds and Release Orders Issued by the RTC, Br. 27, Sta. Cruz, Laguna, A.M. No. 04-6-332-RTC, April 5, 2006, 486 SCRA 500, 518, the Court ruled that "[n]eglect of duty is the failure of an employee to give one's attention to a task expected of him. Gross neglect, on the other hand, is such neglect from the gravity of the case, or the frequency of instances, becomes so serious in its character as to endanger or threaten the public welfare. The term does not necessarily include willful neglect or intentional official wrongdoing."

³⁶ Vide U.S. v. Mitlof [165 F. Supp. 2d 558 (Dist. Court, S.D.N.Y. 2001)] observes that US federal courts have dismissed as a logical impossibility the idea that one can conspire to act unintentionally; Sackman v. Liggett Group Inc., 965 F. Supp. 391, 394 (Dist. Court E.D.N.Y. 1997) states that there can be no conspiracy to be negligent- that is, to intend to act negligently; Sonnenreich v. Philip Morris Inc. [929 F. Supp. 416, 419 (S.D. Fla. 1996)] recognizes that a conspiracy to commit negligence is a non sequitur; Rogers v. Furlow [699 F. Supp. 672, 675 (N.D. Ill. 1988)] declares that a conspiracy to commit negligence is a paradox at best.

³⁷ Galero v. Court of Appeals, G.R. No. 151121, July 21, 2008, 559 SCRA 11.

³⁸ Rollo, p. 66.
³⁹ Republic Act No. 7610, Sec. 481(b)(4).

⁴⁰ Republic Act No. 7160, Sec. 342. Liability for Acts Done Upon Direction of Superior Officer, or Upon Participation of Other Department Heads or Officers of Equivalent Rank. - Unless he registers his objection in writing, the local treasurer, accountant, budget officer, or other accountable officer shall not be relieved of liability for illegal or improper use or application or deposit of government funds or property by reason of his having acted upon the direction of a superior officer, elective or appointive, or upon participation of other department heads or officers of equivalent rank. The superior officer directing, or the department head participating in such illegal or improper use or application or deposit of government funds or property, shall be jointly and severally liable with the local treasurer, accountant, budget officer, or other accountable officer for the sum or property so illegally or improperly used, applied or deposited. (underscoring supplied); cf. Frias, Sr. v. People, G.R. No. 171437, October 4, 2007, 534 SCRA 654, as applied in criminal cases.

⁴¹ Rollo, p. 67, citing Republic Act No. 7160, Sec. 306 (d) & (f).
⁴² G.R. No. 169029, August 22, 2006, 499 SCRA 567.

⁴³ Vide Farolan v. Solmac Marketing Corporation, G.R. No. 83589, March 13, 1991, 195 SCRA 168, 177-178.

⁴⁴ Galero v. Court of Appeals, supra at 24.