PEREZ V. SANDIGANBAYAN 2006

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 166062 September 26, 2006

SALVADOR M. PEREZ and JUANITA A. APOSTOL, petitioners,
vs.
HON. SANDIGANBAYAN (2nd Division) and PEOPLE OF THE PHILIPPINES represented by the Special Prosecutor of the Office of the Ombudsman, respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Certiorari under Rule 65 of the Rules of Court, questioning the twin Resolutions¹ of the Sandiganbayan dated 7 May 2004 (promulgated 18 May 2004),² and 27 September 2004 (promulgated 1 October 2004).³

The following facts were culled from the records of the case:

In a resolution dated 24 April 2001, the Office of the Deputy Ombudsman for Luzon resolved to file charges of violation of Section 3(e)⁴ of Republic Act No. 3019⁵ against petitioners, San Manuel, Pangasinan Mayor Salvador M. Perez, and Municipal Treasurer Juanita Apostol. The Information alleges a crime committed as follows:

That on or about September of 1998, or sometime prior or subsequent thereto, in the Municipality of San Manuel, Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SALVADOR PEREZ, being then the Municipal Mayor and JUANITA APOSTOL, ZAPANTA, Municipal Treasurer of said municipality, conspiring and confederating with one another, committing the crime herein charged in relation to and taking advantage of their official functions, and through manifest partiality, evident bad faith or gross inexcusable negligence, did then and there, wilfully, unlawfully and criminally cause the purchase of one (1) computer unit costing P120,000.00 acquisition by personal canvass which is in violation of Secs. 362 and 367 of R.A. 7160, thereby causing undue injury to the Municipality of San Manuel, Pangasinan.⁶

On 16 January 2002, prior to the scheduled arraignment, petitioners filed with the Sandiganbayan a Motion for Leave of Court to File Motion for Reconsideration/Reinvestigation alleging the discovery of new evidence which will change the outcome of the case if presented and appreciated. The alleged newly discovered evidence consists in the reassessment by the auditors of the Commission on Audit (COA) that, though the prices between the subject computer and that canvassed by the COA are different, such difference is "not really that material."⁷

The Sandiganbayan denied the Motion for Leave of Court to File Motion for Reconsideration/Reinvestigation in an Order dated 4 April 2002. On a subsequent Motion for Reconsideration, however, the Sandiganbayan reconsidered the 4 April 2002 Order, and granted petitioners ten days from receipt of the current 6 September 2002 Resolution within which to formalize their Motion for Reconsideration in the Office of the Ombudsman.

Complying with the 6 September 2002 Resolution, petitioners formalized their Motion for Reconsideration in the Office of the Ombudsman.

Accordingly, the Office of the Special Prosecutor conducted a reinvestigation. Assistant Special Prosecutor Warlito F. Galisanao prepared a Memorandum dated 23 October 2003, recommending the withdrawal of the Information.⁸ However, in the portion of the Memorandum earmarked for the Special Prosecutor’s action, Special Prosecutor Dennis M. Villa-Ignacio chose the action "DO NOT CONCUR" by drawing two lines on the action "I CONCUR," and wrote the following marginal note:

I am, instead adopting the enclosed memorandum of Pros. Chua dated Jan. 22, 2004 recommending that in the meantime, further fact-finding be conducted, and an administrative case be filed against accused Apostol, after withdrawing the Information for viol. of Sec. 3(e) R.A. 3019.⁹

On the other hand, new Ombudsman Simeon V. Marcelo crossed out both actions (APPROVED/DISAPPROVED), and wrote the following marginal note dated 16 February 2004:

The resolution of this case is deferred. There are two modes of violating Section 3(e) of RA 3019, to wit: a) causing undue injury or b) giving unwarranted benefits, advantage or preference. OSP should study whether the accused, assuming arguendo that there was no overprice, gave unwarranted benefits, advantage or preference to the seller of the subject computer. Kindly submit your recommendation soonest. ¹⁰

In an 8 March 2004 Supplemental Memorandum, Assistant Special Prosecutor III Warlito F. Galisanao recommended an amendment of the Information, instead of a withdrawal thereof, to wit:

This is a Supplemental Memorandum to an earlier Memorandum dated October 23, 2003 to the Honorable Tanodbayan, Simeon V. Marcelo who directed the deferment of action on undersigned’s recommendation for the withdrawal of the Information.

As earlier found, the acquisition of the unbranded computer set was questionable on the following grounds:

1. There was no public bidding and the mode of procurement was by canvass.

2. Under Sec. 367 of the Local Government Code, procurement through Personal Canvass requires approval of the Committee on Awards. There was no committee approval to speak of in this case because none has been constituted. This committee is supposed to be composed of:

a. Local General Services Officer or the Municipal Treasurer;

b. Local Accountant;

c. The head of office of department for whose use the supplies are being procured.

3. Purchases under this section allows municipalities outside Metro Manila with the following limits:

Second and Third Class – Forty Thousand Pesos

(P40,000.00)

Fourth Class and Below – Twenty Thousand Pesos

(P20,000.00)

These limits are applicable for all items procured by any one (1) month period only. The local government of San Manuel, Pangasinan, incidentally, is a fourth class municipality.

It must be noted that the canvass made on all the stores/suppliers were done by accused Treasurer Juanita Apostol and attested by Mayor, Salvador Perez. To attest means to affirm to be correct, true or genuine (Blacks Law Dictionary, Fifth Edition)[.]

In the earlier memorandum, there is no unanimity of conclusion as far as the reasonableness of the purchase price of the computer set is concern[ed]. However, the circumstances of its acquisition clearly indicate that the public officials involved gave the supplier, Mobil Link Enterprises/Starlet Sales Center, a private party, unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence by paying much more than the prevailing price for a comparable computer set in the market.

This conclusion is derived from accused’s deliberate disregard of the rules on procurement discussed above. The Information must, therefore, be amended to reflect the manner of the commission of the offense. In regard to Prosecutor Elvira Chua’s recommendation which is endorsed by the Special Prosecutor, the issue of overpricing must be referred to the appropriate office for further fact-finding and probable administrative investigation for violation of COA rules and RA 7160 otherwise, known as the Local Government Code of 1991.

In light of the foregoing, it is recommended that the Information be amended instead of withdrawing the same. Further, the case of overpricing be referred for fact-finding and possible administrative investigation for violation of Secs. 362 and 367 of RA 7160, otherwise known as the Local Government Code of 1991.¹¹

This time around, Special Prosecutor Villa-Ignacio approved the Supplemental Memorandum and, pursuant thereto, Assistant Special Prosecutor Galisanao filed a Motion for Leave to File Amended Information dated 12 March 2004. The Amended Information, which again charges petitioners Perez and Apostol for violation of Sec. 3(e) of Republic Act No. 3019, provides:

That on or about January 21, 1998, or sometime prior or subsequent thereto, in the Municipality of San Manuel, Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SALVADOR PEREZ, being then the Municipal Mayor and JUANITA A. APOSTOL, Municipal Treasurer of said municipality, conspiring and confederating with one another, committing the crime herein charged in relation to and taking advantage of their official functions, through manifest partiality, evident bad faith or gross inexcusable negligence, did then and there, willfully, unlawfully and criminally, give unwarranted benefits, advantage or preference in the discharge of official functions to Mobil Link Enterprises/Starlet Sales Center causing the purchase of one (1) computer unit costing P120,000.00, an acquisition by personal canvass which is in violation of Sections 362 and 367 of RA 7160, thereby causing damage and prejudice to the Municipality of San Manuel, Pangasinan.¹²

The Sandiganbayan granted the motion in the first assailed resolution, thus:

There having been no arraignment yet and the pre-maturity of the amendment is of the prosecution’s risk, the motion to Amend the Information is GRANTED.

Accordingly, the Amended Information submitted by the prosecution is admitted.¹³

Petitioners filed a motion for reconsideration, but the same was denied in the second assailed resolution:

The Court resolves to deny the Motion for Reconsideration filed by the accused. Indeed, the power of a prosecuting prosecutor to amend or cause the amendment of the information does not need the approving authority of the Ombudsman. The Information was maintained only with some amendments made which the Court feels do not violate any law since there was no arraignment yet.

Accordingly, accused Motion for Reconsideration dated June 4, 2004 is denied for lack of merit.¹⁴

Petitioners assail the foregoing Resolutions before this Court, presenting the following issues for resolution:

1. Whether or not there is a denial of procedural due process on the part of the petitioners when the Special Prosecutor filed the Amended Information without authority from or the approval of the Honorable Ombudsman, and against the latter’s specific instruction;

2. Whether or not the Amended Information is valid in the absence of such authority or approval of the Ombudsman under the circumstances; and

3. Whether or not respondent Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction, when it admitted the Amended Information which bears no approval of the Honorable Ombudsman, and against the latter’s written instruction to submit to him for approval the result of the re-study before the filing of said Amended Information.¹⁵

This is not the first time the respective powers of the Ombudsman and the Special Prosecutor were pitted at loggerheads against each other since these positions were reinvented in the 1987 Constitution. The Offices of the Ombudsman (now also called the Tanodbayan) and the Special Prosecutor (then called the Tanodbayan) were reintroduced, with modified powers and designation, in the following provisions of Article XI of the Constitution:

Sec. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

x x x x

Sec. 7. 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, except those conferred on the Office of the Ombudsman created under this Constitution.

A judicial examination of the prosecutorial powers of these two Constitutional positions came barely a year after the effectivity of the 1987 Constitution, when then Special Prosecutor Raul Gonzalez filed criminal cases against Antique Governor Enrique Zaldivar. Zaldivar claimed that said cases were filed without legal and constitutional authority since, under the 1987 Constitution, it is only the Ombudsman (not the incumbent Tanodbayan who should now be called the Special Prosecutor) who has the authority to file the cases with the Sandiganbayan. In granting the petitions and nullifying the criminal informations filed against Zaldivar, this Court held:

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 omission 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, except those conferred on the Office of the Ombudsman created under this Constitution." (Art. XI, Section 7) (Italics ours).

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (called 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 Special Prosecutor in connection with the cases he is ordered to investigate.¹⁶ (Emphasis supplied.)

The following year, Republic Act No. 6770,¹⁷ otherwise known as The Ombudsman Act of 1989, was passed into law. Among other things, said law:

1) expressly included the Special Prosecutor under the Office of the Ombudsman;¹⁸

2) gave the Special Prosecutor the power, under the supervision and control and upon the authority of the Ombudsman, to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, and to perform such other duties assigned to it by the Ombudsman;¹⁹ and, most importantly,

3) granted the Ombudsman the powers to:

Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of the Government, the investigation of such cases.²⁰

A few years later, several persons charged in a complaint filed with the Office of the Ombudsman (in connection with the alleged summary execution of Kuratong Baleleng gang members) instituted petitions for certiorari with this Court, claiming that it is the Special Prosecutor which has jurisdiction to conduct the preliminary investigation and file the proper information against them. In the oral arguments, the parties agreed to limit the issues, with petitioners praying for the re-examination of the Zaldivar ruling on the argument that the Constitution did not give the Ombudsman prosecutorial functions, and contending that the inclusion of the Office of the Special Prosecutor as among the offices under the Office of the Ombudsman in Section 3 of Republic Act No. 6770 is unconstitutional.

In upholding Zaldivar, we held that while there was indeed an intention to withhold prosecutorial functions from the Ombudsman, the legislature nevertheless recommended that the Legislature could, through statute, prescribe such other powers, functions and duties to the Ombudsman.²¹ Thus, paragraph 8, Section 13, Article XI of the Constitution, provides that the Ombudsman may exercise other functions and duties as may be provided by law.²² Pursuant to this authority, the Legislature enacted Republic Act No. 6770, which granted prosecutorial powers to the Ombudsman.

On the claim that the inclusion of the Office of the Special Prosecutor as among the offices under the Office of the Ombudsman in Section 3 of Republic Act No. 6770 is unconstitutional, we ratiocinated that:

The contention is not impressed with merit. Firstly, the petitioners misconstrue Commissioner Romulo’s statement as authority to advocate that the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the President. The said statement obviously referred to the Tanodbayan under P.D. No. 1630 – note how specific the erstwhile Commissioner was in stating; ". . . as the decree now reads . . ." Further, in complete contrast to the petitioner’s stand, one of the principal reasons for the proposal to withhold prosecutorial powers from the Ombudsman was precisely to remove the office from presidential control. x x x

x x x x

In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution." The underscored phrase evidently refers to the Tanodbayan’s powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan’s/Special Prosecutor’s powers under P.D. No. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman. In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A No. 6770.²³

While it is clear that Acop v. Office of the Ombudsman upheld Zaldivar v. Sandiganbayan insofar as the power of the Ombudsman to prosecute cases is concerned, there has been a shift in its ratio decidendi. Hence, it was pronounced that the authority of the Ombudsman to prosecute was based on Republic Act No. 6770, as authorized by paragraph 8, Section 13, Article XI of the Constitution. This being the case, and considering that Republic Act No. 6770 also gives the Special Prosecutor the power to prosecute criminal cases (albeit under the supervision and control and under the authority of the Ombudsman), was there likewise a modification of our ruling in Zaldivar prohibiting the then Special Prosecutor to initiate criminal cases unless authorized by the Ombudsman? Or should there now be a presumed authority, pursuant to Republic Act No. 6770, to prosecute cases unless prohibited by the Ombudsman?

The determination of this question is necessary in the case at bar, where it is the petitioners’ central contention that the Sandiganbayan committed grave abuse of discretion amounting to lack or excess in jurisdiction when it admitted the Amended Information which, according to petitioners, bears no approval of the Ombudsman, thus, constituting denial of procedural due process.²⁴

Particularly, petitioners allege that the amendment of the Information and the admission of the Amended Information is premature, since the Ombudsman has not yet acted with finality on the 23 October 2003 Memorandum.²⁵ The Ombudsman, by stating in the marginal notes of the 23 October 2003 Memorandum that "(t)he resolution of this case is deferred," and "(k)indly submit your recommendation soonest," allegedly decreed that the reinvestigation stage would not be completed until his final determination.²⁶

Respondent People’s defense is that compliance with the specific instructions of the Ombudsman is merely an internal matter and the alleged failure to heed the specific instructions of the Ombudsman is speculative.²⁷

The marginal notes of Ombudsmen to the recommendations of investigating prosecutors are hardly internal matters. In Cruz, Jr. v. People,²⁸ Olivarez v. Sandiganbayan,²⁹ and Gallardo v. People,³⁰ the marginal notes, even one-liners as in the case of Gallardo, were judicially considered sufficient dispositions by the Ombudsmen and Special Prosecutors concerned. We held in Olivarez that:

The mere fact that the order to file the information against petitioner was contained in a marginal note is not sufficient to impute arbitrariness or caprice on the part of respondent special prosecutors, absent a clear showing that they gravely abused their discretion in disapproving the recommendation of the investigating prosecutors to dismiss or withdraw the case against petitioner. x x x.³¹

Was there, as petitioners assert, a violation of the orders of the Ombudsman as stated in his marginal note?

For reference, we reiterate the marginal note of Ombudsman Marcelo dated 16 February 2004:

The resolution of this case is deferred. There are two modes of violating Section 3(e) of RA 3019, to wit: a) causing undue injury or b) giving unwarranted benefits, advantage or preference. OSP should study whether the accused, assuming arguendo that there was no overprice, gave unwarranted benefits, advantage or preference to the seller of the subject computer. Kindly submit your recommendation soonest. ³²

Assistant Special Prosecutor Galisanao’s Special Memorandum, quoted in full in the narration of facts, show complete compliance with Ombudsman Marcelo’s order to "study whether the accused, assuming arguendo that there was no overprice, gave unwarranted benefits, advantage or preference to the seller of the subject computer." Assistant Special Prosecutor Galisanao answered the query in the affirmative, stating that unwarranted benefits, advantage or preference were given to Mobil Link Enterprises/Starlet Sales Center through the "deliberate disregard of the rules on procurement discussed above."

Ombudsman Marcelo’s order, however, to "(k)indly submit your recommendation soonest," is another matter. The marginal note did not indicate to whom the recommendation should be submitted. As the recommendation was prepared by a subordinate in the Office of the Special Prosecutor, would a submission to the Special Prosecutor be sufficient compliance with the order of the Ombudsman? What is imperative is that the recommendation be submitted to someone who has the authority to implement such recommendation, by authorizing the filing of the proper information.

Republic Act No. 6770, by conferring upon the Ombudsman the power to prosecute, likewise grants to the Ombudsman the power to authorize the filing of informations. As to the Special Prosecutor, respondent People invokes the aforesaid authority of the Ombudsman in Section 15(10) to delegate his powers, and claim that there was a general delegation of the authority to approve the filing of informations in Office Order No. 03-97, series of 2003 (dated 15 September 2003), and Office Order No. 40-05, series of 2005 (dated 4 April 2005).

Office Order No. 40-05 is a consolidation of several office orders, including the aforementioned Office Order No. 03-97, which is thus superceded by the former.³³ Office Order No. 40-05 provides:

In the exigency of the service, except when otherwise ordered by the Ombudsman, the disposition of administrative and criminal cases involving any of the following, viz:

1) City and Municipal mayors;

x x x x

as the highest ranking respondent, where the offense charged involves injury or damage amounting to, or valued at Two Million Pesos (P2,000,000.00) or less, or where the maximum imposable penalty for any of the offense charged does not exceed twenty (20) years imprisonment, shall be subject to the final approval of the Deputy Ombudsman concerned; provided, that, where the offense charged involves injury or damage amounting to, or valued at, more than Two Million Pesos (P2,000,000.00), or where the maximum imposable penalty for any of the offense charged is more than twenty (20) years imprisonment, the disposition shall be subject to the final approval of the Ombudsman.

In the foregoing dispositions that are subject to the final approval of the Deputy Ombudsman concerned, the undersigned hereby delegates to the latter further authority to approve and sign any corresponding criminal information, whether to be filed with the regular courts or the Sandiganbayan; provided, however, that, preparatory to the filing of the information with the Sandiganbayan, the Office of the Special Prosecutor may review and modify the same, subject to the approval of the Special Prosecutor, without departing from, or varying in any way, the contents of the basic Resolution, Order or Decision.³⁴

Contrary to the contention of respondent People, the delegation of the power to authorize the filing of informations under Office Order No. 40-05 was only made to Deputy Ombudsmen, and not to the Special Prosecutor. All that was delegated to the Special Prosecutor was the discretional³⁵ authority to review and modify the Deputy Ombudsmen-authorized information, but even this is subject to the condition that such modification must be "without departing from, or varying in any way, the contents of the basic Resolution, Order or Decision." Even the title of Office Order No. 40-05 betray the contention of delegation to the Special Prosecutor: "DELEGATION OF FINAL APPROVING AUTHORITY TO THE DEPUTY OMBUDSMAN FOR LUZON, DEPUTY OMBUDSMAN FOR VISAYAS AND DEPUTY OMBUDSMAN FOR MINDANAO."

Neither does it help that, under Section 11(4) of Republic Act No. 6770, the Special Prosecutor was given the rank and salary of Deputy Ombudsman. In Office of the Ombudsman v. Valera,³⁶ this Court held:

The petitioner’s contention that since the Special Prosecutor is of the same rank as that of a Deputy Ombudsman, then the former can rightfully perform all the functions of the latter, including the power to preventively suspend, is not persuasive. Under civil service laws, rank classification determines the salary and status of government officials and employees. Although there is substantial equality in the level of their respective functions, those occupying the same rank do not necessarily have the same powers nor perform the same functions.³⁷

There being no express delegation of the power to prosecute, we are constrained to go back to our main query: Is there an implied delegation of the power to prosecute under Republic Act No. 6770, such that Special Prosecutors are presumed to have been delegated such power, in the absence of a prohibition from the Ombudsman?

Republic Act No. 6770 provides:

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;

(b) To enter into plea-bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.³⁸

This Court has defined the power of control as "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."³⁹ The power of supervision, on the other hand, means "overseeing, or the power or authority of an officer to see that subordinate officers perform their duties."⁴⁰ Under the Administrative Code of 1987⁴¹:

Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. x x x

Springing from the power of control is the doctrine of qualified political agency, wherein the acts of a subordinate bears the implied approval of his superior, unless actually disapproved by the latter.⁴² Thus, taken with the powers of control and supervision, the acts of Department Secretaries in the performance of their duties are presumed to be the act of the President, unless and until the President alters, modifies, or nullifies the same. By arguing that "[w]hat is important is that the amended Information has not been withdrawn, and or recalled by the Honorable Ombudsman, [a] clear showing that the latter acknowledged/upheld the act of the Special Prosecutor in signing the Amended Information,"⁴³ respondent People claims that the doctrine of qualified political agency should be applied as well to the relationship between the Ombudsman and the Special Prosecutor.

Petitioners counter that the doctrine of qualified political agency does not apply to the Office of the Ombudsman, since the latter is an apolitical agency, and is far different from the bureaucracy to which said doctrine applies.⁴⁴

Petitioners are correct.

The doctrine of qualified political agency was adopted in our system of government on the following pronouncement of this Court in Villena v. The Secretary of the Interior⁴⁵:

After serious reflection, we have decided to sustain the contention of the government in this case on the broad proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. (Runkle vs. United States [1887]. 122 U.S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U.S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey v. Chapman [1880], 101 U.S., 755; 25 Law. ed., 915; Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.) ⁴⁶

While we do not underestimate the quantity of work in the hands of the Office of the Ombudsman, the same simply does not measure up to the workload of the Office of the President as to necessitate having the Special Prosecutor as an alter ego of the Ombudsman. In any case, the Office of the Ombudsman could very well make a general delegation of powers to the Special Prosecutor, if it is so desired. An examination of the office orders issued by the Ombudsman, however, reveal that there had been no such intention to make a general delegation.

Indeed, a statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for which it was created.⁴⁷ Yet, the Ombudsman would be severely hampered from exercising his power of control if we are to allow the Special Prosecutor to authorize the filing of informations in the first instance. This is because while the Ombudsman has full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the informations may not be dismissed, without the approval of the said court.⁴⁸

We, therefore, resolve to grant the Petition. We realize that, once transmitted to the new Ombudsman, she can so easily approve the 8 March 2004 Supplemental Memorandum of Assistant Special Prosecutor Galisanao, and the same Amended Information can be filed in no time. However, when the law entails a specific procedure to be followed, unwarranted shortcuts lead to the violation of the sacred right to due process, which we cannot countenance.

Finally, as regards other informations authorized by the Special Prosecutor to be filed without the approval of the Ombudsman, we also recognize that the former prevailing interpretation of the law may shield these informations from illegality. Such reliance upon the operative fact, however, would cease upon the finality of this Decision.

WHEREFORE, the instant Petition for Certiorari is GRANTED. The assailed Resolutions of the Sandiganbayan admitting the Amended Information is SET ASIDE. Let the 8 March 2004 Supplemental Memorandum of Assistant Special Prosecutor III Warlito F. Galisanao be TRANSMITTED to the Office of the Ombudsman for approval or disapproval.

SO ORDERED.

Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

Footnotes

¹ Both Resolutions were penned by Sandiganbayan Associate Justice Edilberto G. Sandoval with Associate Justices Francisco H. Villaruz, Jr. and Efren N. dela Cruz, concurring.

² Records, p. 213.

³ Id. at 242.

⁴ SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of officers or government corporations charged with the grant of licenses or permits or other concessions.

⁵ Anti-Graft and Corrupt Practices Act.

⁶ Rollo, pp. 20-21.

⁷ Petitioner’s Memorandum, p. 3.

⁸ Rollo, pp. 60-69.

⁹ Id. at 69.

¹⁰ Id.

¹¹ Id. at 70-73.

¹² Records, pp. 202-204.

¹³ Id. at 213.

¹⁴ Id. at 242.

¹⁵ Petitioner’s Memorandum, p. 7.

¹⁶ Zaldivar v. Sandiganbayan, G.R. Nos. L-79690-707, 27 April 1988, 160 SCRA 843, 846-847.

¹⁷ Approved on 17 November 1989.

¹⁸ Republic Act No. 6770, Section 3: "The Office of the Ombudsman shall include the Office of the Overall Deputy, the Office of the Deputy for Luzon, the Office of the Deputy for the Visayas, the Office of the Deputy for Mindanao, the Office of the Deputy for the Armed Forces, and the Office of the Special Prosecutor. The President may appoint other Deputies as the necessity for it may arise, as recommended by the Ombudsman."

¹⁹ Republic Act No. 6770, Section 11 (4): "The Office of the Special Prosecutor shall, under the supervision and control and under the authority of the Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;

(b) To enter into plea bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.

²⁰ Republic Act No. 6770, Section 11(1); In Uy v. Sandiganbayan (G.R. Nos. 105965-70, 20 March 2001, 354 SCRA 651, 659), we set aside our earlier Decision (312 SCRA 77, 9 August 1999) and Resolution (unreported, 20 February 2000), and held that Section 11(1) gives the Ombudsman the power to prosecute criminal cases not only within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts.

²¹ Acop v. Office of the Ombudsman, G.R. Nos. 120422 & 120428, 27 September 1995, 248 SCRA 566, 575-576.

²² SEC. 13. The office of the Ombudsman shall have the following powers, functions, and duties:

x x x x

Promulgate its rules and procedures and exercise such other functions or duties as may be provided by law. (Emphasis supplied.)

²³ Acop v. Office of the Ombudsman, supra note 21 at 581-582.

²⁴ Rollo, p. 155.

²⁵ Id. at 161.

²⁶ Id. at 161.

²⁷ Id. at 175.

²⁸ G.R. No. 110436, 27 June 1994, 233 SCRA 439, 450-451.

²⁹ 319 Phil. 45 (1995).

³⁰ G.R. No. 142030, 21 April 2005, 456 SCRA 494, 504-505.

³¹ Olivarez v. Sandiganbayan, supra note 29 at 58-59.

³² Rollo, p. 69.

³³ Office Order No. 40-05 states: "This Office Order is being issued to consolidate the contents of existing officer orders, to wit: Office Order No. 05-11, dated 19 January 2005; Office Order No. 03-97, dated 15 September 2003; Office Order No. 03-116, dated 17 October 2003; Office Order No. 04-32, dated 12 May 2004; and Office Order No. 04-45, dated 8 July 2004. Said Office Orders are deemed superseded by this Office Order." (Emphasis supplied.)

³⁴ Rollo, pp. 218-220.

³⁵ "x x x [T]he Office of the Special Prosecutor may review and modify the same." (Id. at 219.)

³⁶ G.R. No. 164250, 30 September 2005, 471 SCRA 715.

³⁷ Id. at 746-747.

³⁸ Republic Act No. 6770, Section 11(4).

³⁹ Mondano v. Silvosa, 97 Phil. 143, 148 (1955).

⁴⁰ Id.

⁴¹ Executive Order No. 292, Book 4, Chapter 7, Section 38 (1).

⁴² See Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) v. Dominguez, G.R. No. 85439, 13 January 1992, 205 SCRA 92, 110.

⁴³ Rollo, p. 175.

⁴⁴ Id. at 164.

⁴⁵ 67 Phil. 451 (1939).

⁴⁶ Id. at 463-464.

⁴⁷ Buenaseda v. Flavier, G.R. No. 106719, 21 September 1993, 226 SCRA 645, 653.

⁴⁸ Domondon v. Sandiganbayan, G.R. No. 129904, 16 March 2000, 328 SCRA 292, 300, citing Ocampo, v. Ombudsman, 225 SCRA 725, 730 (1993).

THE DOCTRINE OF QUALIFIED POLITICAL AGENCY 1

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 140717 April 16, 2009

ANNIE L. MANUBAY, ANNE MARIE L. MANUBAY, JAMES JOHN L. MANUBAY, JAMES FRANCIS L. MANUBAY, ANNE MARGARETH L. MANUBAY and MANUBAY AGRO-INDUSTRIAL DEVELOPMENT CORP., INC. represented by ATTY. JAIME A. MANUBAY, Petitioners,
vs.
HON. ERNESTO D. GARILAO, in his capacity as the Secretary of the Department of Agrarian Reform, Respondent.

R E S O L U T I O N

CORONA, J.:

At the heart of this controversy is a 124-hectare land in Barrio Cadlan, Pili, Camarines Sur owned by petitioners Annie, Anne Marie, James John, James Francis and Anne Margareth (all surnamed Manubay)¹ and Manubay Agro-Industrial Development Corporation.²

On November 15, 1994, the Municipal Agrarian Reform Officer (MARO) of Pili issued a notice of coverage placing the property under the comprehensive agrarian reform program (CARP).³ Petitioners did not protest the notice.

On July 1, 1996, petitioners filed an application at the Department of Agrarian Reform (DAR) for conversion of the property from agricultural to residential.⁴

On August 26, 1996, the Sangguniang Bayan of Pili passed Resolution No. 145 approving the Comprehensive Zoning Ordinance of 1996 of the Municipality of Pili, Camarines Sur.⁵ The ordinance reclassified the subject property from agricultural to highly urbanized intended for mixed residential and commercial use.⁶

Thereafter, petitioners requested DAR Regional Director Percival C. Dalugdug to set aside the November 15, 1994 notice of coverage. They pointed out that the land had been reclassified and the property was no longer suitable for agricultural purposes. Director Dalugdug denied their request in a letter dated November 13, 1996⁷ :

Relative to land conversions, we are guided in our actions by [DAR-Administrative Order (AO)] No. 12, s. 1994 which clearly states that no application for conversions shall be accepted on lands for compulsory acquisition already given notices of coverage. Applications may only be accepted if the notice of coverage has been lifted for one reason or another.

x x x x x x x x x

Please note that your properties have already been issued notices of coverage by the MARO of Pili last November 15, 1994 which is almost two years prior to your submission of the application for conversion. To reiterate, for us to entertain your application, you must first have these notices lifted whether because of retention or exemption. Since the basis of your claims of exemption (i.e., not yet covered per instruction by the Secretary, and reclassification under the Pili land use plan) are not valid, we are sorry to inform you that we can no longer entertain your application…. (emphasis supplied)

Respondent Ernesto Garilao, then DAR Secretary, upheld Director Dalugdug and denied petitioners’ application for conversion, considering that the property had already been placed under the CARP.⁸

Aggrieved, petitioners separately asked respondent to reconsider. They insisted that, because the MARO issued a notice of coverage, not a notice of acquisition, their application for conversion should have been approved. The motions were denied.⁹

On April 28, 1998, petitioners filed a petition for certiorari in the Court of Appeals (CA) assailing the denial of their application for conversion.¹⁰ They averred that respondent acted with grave abuse of discretion when he denied their application. According to them, the issuance of a mere notice of coverage placing agricultural land under the CARP was not a ground for the denial of such application.

In a resolution dated June 1, 1999, the CA dismissed the petition.¹¹ DAR-AO No. 7, s. 1997¹² provides that the decision of the DAR Secretary may be appealed either to the Office of the President (OP) or to the CA. Considering that the issue raised by petitioners involved the administrative implementation of the CARP, the OP was more competent to rule on the issue. Moreover, by failing to bring the matter to the said office, petitioner did not exhaust all available administrative remedies before resorting to a petition for certiorari.

Petitioners moved for reconsideration but it was denied.¹³ Hence, this recourse.

Petitioners contend that the CA erred in dismissing the petition for certiorari as they did not violate the rule on exhaustion of administrative remedies. The act of a department secretary may be directly challenged in a petition for certiorari.

We dismiss the petition.

Under the doctrine of qualified political agency, department secretaries are alter egos or assistants of the President and their acts are presumed to be those of the latter unless disapproved or reprobated by him.¹⁴ Thus, as a rule, an aggrieved party affected by the decision of a cabinet secretary need not appeal to the OP and may file a petition for certiorari directly in the Court of Appeals assailing the act of the said secretary.¹⁵

Section 1 of Rule 65 of the Rules of Court provides that, for a petition for certiorari to prosper, petitioner must show (1) the public respondent acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction and (2) there is no appeal or a plain, speedy and adequate remedy in the ordinary course of law.

In a petition for certiorari premised on grave abuse of discretion, it must be shown that public respondent patently and grossly abused his discretion and that such abuse amounted to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law. In other words, the public respondent exercised his power arbitrarily and despotically by reason of passion or hostility.¹⁶

Here, inasmuch as respondent had a valid ground to deny petitioners’ application, he did not commit grave abuse of discretion.1avvphi1

Furthermore, DAR-AO No. 7, s. 1997 requires an appeal (of the denial of application of conversion) to the OP. It was the plain, speedy and adequate remedy contemplated by Section 1 of Rule 65.

Needless to state, elevating the matter to the OP was consistent with the doctrine of exhaustion of administrative remedies. A party aggrieved by an order of an administrative official should first appeal to the higher administrative authority before seeking judicial relief. Otherwise, as in this case, the complaint will be dismissed for being premature or for having no cause of action.¹⁷

WHEREFORE, the June 1, 1999 and November 4, 1999 resolutions of the Court of Appeals in CA-G.R. SP No. 47244 are hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

ANTONIO T. CARPIO Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

LUCAS P. BERSAMIN
Associate Justice

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

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above resolution 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

¹ Registered co-owners of lot no. 293, a 99.2559-hectare property, covered by TCT No. 12691.

² Registered owner of lot nos. 360, 229, 388, 232 and 170 covered by TCT Nos. 12357, 12358, 12359 and 12360 respectively, covering an aggregate area of 25,0651 hectares.

³ Notice of Coverage issued by MARO Nelson S. Tongco. Rollo, p. 142.

⁴ Id., pp. 54-64.

⁵ Ordinance No. 40-1, s. 1996.

⁶ Certificate of Eligibility for Conversion issued by the Sangguniang Bayan of Pili. Dated July 9, 1996. Rollo, p. 95.

⁷ Id., p. 112. Petitioners subsequently requested Director Dalugdug to reconsider his November 13, 1996 decision but he refused to do so in a letter dated December 6, 1996. Id., pp. 113-114.

⁸ Order dated September 16, 1996. Id., pp. 116-119.

⁹ Orders dated January 14, 1998 and February 25, 1998. Id., pp. 144-15 and 165-170, respectively.

¹⁰ Docketed as CA-G.R. SP No. 472244.

¹¹ Penned by Associate Justice Ma. Alicia Austria-Martinez (now a member of this Court) and concurred in by Associate Justices Salvador J. Valdez, Jr. (retired) and Renato C. Dacudao (retired) of the Ninth Division of the Court of Appeals. Rollo, pp. 16-18.

¹² DAR-A.O. No. 7, s. 1999, par. XIV provides:

XIV. APPEAL FROM THE DECISION OF THE UNDERSECRETARY OR SECRETARY.

Appeal from the Decision of the Undersecretary shall be made to the Secretary and from the Secretary to the Office of the President or the Court of Appeals as the case may be. The mode of appeal/motion for reconsideration and appeal fee from Undersecretary to the Office of the Secretary shall be the same as that of the Regional Director to the Office of the Secretary.

¹³ Dated November 4, 1999. Id., p. 19.

¹⁴ See DENR v. DENR Region 12 Employees, 456 Phil. 635, 644 (2003).

¹⁵ Ruben E. Agpalo, Philippine Administrative Law 1999 ed., 354.

¹⁶ See Aggabao v. Commission on Elections, G.R. No. 163756, 26 January 2005, 449 SCRA 400. See also Zarate v. Maybank, G.R. No. 160976, 8 June 2005, 459 SCRA 785. See also Agustin v. Court of Appeals, G.R. No. 162571, 15 June 2005, 460 SCRA 315.

¹⁷ See Pangasinan State University v. Court of Appeals, G.R. No. 162321, 29 July 2007, 526 SCRA 92, 99.

NMC V. ARCA 1969

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-25743 September 30, 1969

NATIONAL MARKETING CORPORATION, CORNELIO BALMACEDA, JOSE CALDERON, ANTONIO ARAMBULO, PEDRO BALINGIT, CIPRIANO MALONZO and ROSENDO TOMAS, petitioners,
vs.
HON. FRANCISCO ARCA, Presiding Judge of the Court of First Instance of Manila, Branch I and JUAN T. ARIVE, respondents.

Government Corporate Counsel Leopoldo M. Abellera and Trial Attorney Manuel M. Lazaro for petitioners.
Paredes, Poblador, Cruz and Nazareno for respondents.

CAPISTRANO, J.:

This is an original action for certiorari and prohibition with prayer for a writ of preliminary injunction to enjoin respondent Judge Francisco Arca from enforcing his Order dated January 12, 1966, directing petitioners to reinstate respondent Juan T. Arive to his former position in the National Marketing Corporation (hereinafter referred to as NAMARCO) and the writ of preliminary mandatory injunction issued pursuant thereto on January 14, 1966.

Respondent Juan T. Arive was the Manager of the Traffic-Storage Department of the NAMARCO receiving an annual compensation of P7,200.00. Pursuant to the General Manager's Administrative Order No. 118 dated February 24, 1960, he was investigated by a committee for violating Management Memorandum Order dated February 1, 1960, directing "that the allocation and deliveries of merchandise imported under the so-called Trade Assistance Program to its designated beneficiaries be stopped;" and causing the improper release of shipments intended for delivery upon full payment thereof by the Federation of United NAMARCO Distributors (FUND), which were covered by certain domestic letters of credit for the total sum of P361,053.85. After due hearing, the investigating committee found Arive guilty of the charges but left the imposition of the penalty to the discretion of the General Manager and the Board of Directors. Subsequently, the General Manager issued Administrative Order No. 137, series of 1960, holding Arive guilty of the charges and dismissing him from the service. On November 4. 1960, the Board of Directors adopted Resolution No. 584-60 dismissing Arive from the service effective as of the date of his suspension, with prejudice to his reinstatement in the NAMARCO and to all benefits to which he would otherwise have been entitled, Arive filed a motion for reconsideration, which was denied.

On March 2, 1961, Arive appealed from the decision of the NAMARCO to the President of the Philippines. The NAMARCO was advised by the Office of the President of the appeal, and was asked to forward the records of the administrative case. On January 26, 1965, then Executive Secretary Ramon A. Diaz, presumably acting for the President, handed down a decision setting aside Resolution No. 584-60 of the NAMARCO and reinstating Juan T. Arive to his former position. In the decision it was pointed out that the order of the NAMARCO stopping the further delivery of commodities imported under the trade assistance program to the designated beneficiaries had been subsequently declared illegal by the Supreme Court in the case of Federation of United NAMARCO Distributors vs. NAMARCO, G. R. No. L-17819, March 31, 1962, on the ground that said order was a violation of the contract of sale; hence, it would not be proper to hold Arive administratively liable for his failure to comply with said order; and that the Pasig River Bodegas being private warehouses over which Arive did not have supervision, much less control, the release of the commodities therefrom could have been effected even had Arive tried to block it. In the meantime, another person was appointed to the position formerly occupied by Juan T. Arive.

On April 6, 1965, the NAMARCO, through its General Manager, in a letter addressed to the President, asked for a reconsideration of the decision ordering Arive's reinstatement. In that letter it was contended that the Office of the President had no jurisdiction to review any decision of the NAMARCO Board of Directors removing, suspending, or otherwise disciplining any of its subordinate employees, because Republic Act No. 1345 (the NAMARCO Charter), which grants that power to the General Manager and to the Board of Directors, does not provide for an appeal to any governmental body. In a letter to the NAMARCO dated June 8, 1965, then Executive Secretary Ramon A. Diaz, this time expressly acting "[b]y authority of the President," refused to reconsider the decision, stating that the President had jurisdiction under his constitutional power of control over all executive departments, bureaus and offices, and directing that the decision be implemented. The NAMARCO filed a second motion for reconsideration; and on November 17, 1965, the President, through Salvador Marino, as Acting Executive Secretary, denied the motion and again directed immediate compliance with the order of reinstatement. On December 9, 1965, the Office of the President, acting on complaints of Arive that he had not been reinstated in spite of the denial of the NAMARCO's two motions for reconsideration, sent a telegram to the General Manager requesting him to act on the case and to comment within forty-eight hours; but the said General Manager neither acted on the case nor commented.

On December 23, 1965, respondent Juan T. Arive filed a complaint (Civil Case No. 63720) with the Court of First Instance of Manila against the NAMARCO and the members of its Board of Directors for reinstatement and damages, with prayer for a writ of preliminary mandatory injunction. Hearing was held on the petition for issuance of the writ; and after the parties had submitted their respective memoranda, respondent Judge issued an order dated January 12, 1966, the pertinent portion of which reads:

... The Court is, however, of the view that the President of the Philippines does not only exercise supervision but also control over all government-owned and controlled corporations including the NAMARCO; hence, he may review, revise, alter, modify or nullify the decision or action of the Board of Directors of any government-owned and controlled corporation and substitute his judgment for that of the latter. Plaintiff's right to reinstatement, therefore, appears to be very clear; and considering that the effect of the issuance of the writ prayed for is rather to re-establish and maintain a pre-existing continuing relation between the parties and considering further that there is an invasion of plaintiff's right and the injury is a continuing one, the Court hereby grants plaintiff's prayer and hereby orders the issuance of a writ of preliminary mandatory injunction directing the defendants to immediately reinstate the plaintiff to his position as Manager of the Traffic Storage Department of the National Marketing Corporation upon filing a bond in the amount of P5,000.00.

Defendants filed a motion for reconsideration; and when the motion was denied, they filed the present petition with this Court, which on March 15, 1966, issued a writ of preliminary injunction.

The pivotal point at issue is whether the President of the Philippines had authority to reverse the decision of the Board of Directors of the NAMARCO and to order the reinstatement of Juan T. Arive. Respondents maintain that he had, and they anchor their stand on Section 10(1), Article VII, of the Constitution, which reads:

The President shall have control of all executive departments bureau or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed.

Petitioners, however, disagree, and contend that the word "offices," interpreted in the light of the preceding words "executive departments," and "bureaus," refers to offices performing governmental functions which have no juridical personality, and, therefore, does not include government-owned and controlled corporations. They claim that the above-quoted constitutional provision is not applicable and that what should apply is Section 13(d) of Republic Act No. 1345, (NAMARCO Charter) which vests in the General Manager the power and/or duty, with the approval of the Board of Directors, to remove, suspend or otherwise discipline for cause any subordinate employee of the NAMARCO. They contend that in reversing the order of the NAMARCO Board of Directors dismissing Juan T. Arive from the service, and in ordering his reinstatement, the President of the Philippines arrogated unto himself a power not authorized either by the Constitution or by the law, hence his actuations were legally ineffective and certainly could not be a basis for issuance of the writ of preliminary injunction.

We hold that the President of the Philippines' authority to review and reverse the decision of the NAMARCO Board of Directors dismissing Juan T. Arive from his position in the NAMARCO and to order his re-instatement falls within the constitutional power of the President over all executive departments, bureaus and offices. Under our governmental set-up, corporations owned or controlled by the government, such as the NAMARCO, partake of the nature of government bureaus or offices, which are administratively supervised by the Administrator of the Office of Economic Coordination, "whose compensation and rank shall be that of a head of an Executive Department" and who "shall be responsible to the President of the Philippines under whose control his functions ... shall be exercised." (Executive Order No. 386 of December 22, 1950, section 1, issued under the Reorganization Act of 1950).

The fact that section 13(d) of Republic Act No. 1345 (the NAMARCO Charter and likewise section 11(d) of the Uniform Charter for Government Owned or Controlled Corporations (Ex. Order No. 399 of January 5, 1951) which authorize the general manager of such corporations, with the approval of the Board of Directors, to remove for cause any subordinate employee of the Corporation do not provide for an appeal from the general manager's decision of removal to any superior officer, body or agency, does not mean that no appeal lies from such decision to the President. In Lacson-Magallanes Co., Inc. vs. Patio, (21 SCRA 895, 899), where the Court upheld the President's action through his Executive Secretary of reversing a decision of the Director of Lands which had been affirmed by the Secretary of Agriculture and Natural Resources, notwithstanding the provision of Section 4 of Commonwealth Act No. 141 that such decisions "as to questions of fact shall be conclusive," we stated that "the right to appeal to the President reposes upon the President's power of control over the executive departments." And control simply 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 the latter." As enunciated through Justice Laurel in Planas vs. Gil (69 Phil. 52, 76), "under the presidential type of government which we have adopted ... all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive."

We find the President's action through his Executive Secretary of reversing the NAMARCO Board decision and ordering the reinstatement of respondent Arive to be an act of justice due respondent. In the decision of January 20, 1965, then Executive Secretary Diaz stated:

Moreover, it is an established fact that the Pasig River Bodegas is a private warehouse. Arive did not have the supervision, much less the control, of said warehouse. Under this circumstance, the release of the commodities in question could have been effected even if Arive tried to do his best to block it. To paraphrase Arive, and in this regard there is no evidence that contradicts him, his only duty in connection with shipment imported by the NAMARCO for the FUND under the trade assistance program was to undertake the proper clearance therefor with the Bureau of Customs. Clearly, therefore, Arive should not be made to suffer for the release of commodities in violation of the NAMARCO order of February 1, 1960, even if it were lawful, which it is not according to the Supreme Court, because the custody and release thereof were not within his control and supervision. (Annex "A" of Complaint, Annex "C" of Petition) .

Executive Secretary Diaz further pointed out in the first denial on June 8, 1965 of petitioner's motion for reconsideration that:

It cannot be said, therefore, that it was an act of insubordination on Arive's part not to stop the release of the shipments in question in favor of the FUND. Had he done so, in total disregard of a contract between NAMARCO and FUND which that memorandum order violates, and of an injunction issued by the Court of First Instance hearing the complaint filed by the FUND against the NAMARCO for specific performance of that contract, he would have been held liable therefor, especially considering that the shipments intended for the FUND were stored in a private warehouse. The shipments could not have been stopped at all even if Arive did not "okey for release" from the Bureau of Customs those shipments. Furthermore, the memorandum order allegedly not obeyed by him was declared illegal by no less an authority than the Supreme Court.

x x x x x x x x x

The primary question is whether Arive was illegally dismissed or not. Whether his reinstatement would entail the alleged adverse effects is of secondary importance and legal significance. This Office having found, in effect, that Arive was not lawfully dismissed for cause, he was entitled to reinstatement and to the benefits incidental thereto, inasmuch as his temporary cessation from work was not of his own doing nor within his control. The fact that one has replaced him already is immaterial because "legally speaking his position never became vacant, hence there was no vacancy to which a new incumbent could be permanently appointed; in other words, the new incumbent's occupancy of, or tenure in, said post is temporary and precarious and does not come within the contemplation of the Constitutional prohibition. (Batungbakal vs. National Development Company, et al., 49 O.G. 2290)." (Annex "B" of Complaint, Annex "D" of Petition)

Implementation of the President's decision has been delayed all these long years by the NAMARCO, notwithstanding the Government Corporate Counsel's advice and opinion that "may not legally refuse to implement the decision of the Office of the President in the performance of the exercise of his supervision and control over said government owned and controlled corporations" (Op. No. 175, Series of 1963). Yet, in the case of a co-employee of respondent Arive, Victor Macaraig, who was similarly dismissed by the Board, the NAMARCO Board promptly reinstated him on December 4, 1962, in implementation of the President's decision of August 30, 1962, ordering his reinstatement. (Annexes 2 and 3, Respondents' Answer) Arive's right to reinstatement by virtue of the President's decision, which was reiterated twice in denying the petitioner's persistent motions for reconsideration was, therefore, clearly established, and which is now final and binding upon petitioners, and respondent judge did not act without jurisdiction or with grave abuse of discretion in issuing the writ of preliminary mandatory injunction for his immediate reinstatement. We deem it unnecessary to pass upon the other issues raised by the parties, which are after all, merely incidental to the main issue of the President's authority to review and reverse Resolution No. 584-60 of the NAMARCO Board of Directors.

WHEREFORE, the petition is dismissed, with costs against petitioners.1awphîl.nèt The writ of preliminary injunction issued on March 15, 1966 against the enforcement of respondent judge's order dated January 12, 1966 and writ of preliminary mandatory injunction dated January 14, 1966 in Civil Case No. 63720 of the Court of First Instance of Manila is hereby dissolved effective immediately.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Teehankee and Barredo, JJ., concur.
Reyes, J.B.L., J., is on leave.

JOEL BITO-ONON, petitioner, vs. HON. JUDGE NELIA YAP FERNANDEZ,2001

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 139813 January 31, 2001

JOEL BITO-ONON, petitioner,
vs.
HON. JUDGE NELIA YAP FERNANDEZ, R.T.C. Br. 50 – Puerto Princesa City and Palawan, and ELEGIO QUEJANO, JR., respondents.

GONZAGA-REYES, J.:

This Petition for Certiorari and Prohibition with prayer for the issuance of a temporary restraining order and writ of injunction seeks the reversal of the Order of the Regional Trial Court of Palawan and Puerto Princesa City,¹ Branch 50 in SPL. PROC. NO. 1056 entitled "Elegio F. Quejano, Jr., petitioner vs. Joel Bito-Onon, et. al., respondents" which denied herein petitioner's motion to dismiss the Petition for Review of the Resolution of the Board of Election Supervisors dated August 25, 1997 in case number L-10-97 filed by herein private respondent with said court.1âwphi1.nêt

It appears from the records that the petitioner, Joel Bito-Onon is the duly elected Barangay Chairman of Barangay Tacras, Narra, Palawan and is the Municipal Liga Chapter President for the Municipality of Narra, Palawan. The private respondent, Elegio Quejano, Jr. on the other hand, is the duly elected Barangay Chairman of Barangay Rizal, Magsaysay, Palawan and is the Municipal Liga Chapter President for the Municipality of Magsaysay, Palawan. Both Onon and Quejano were candidates for the position of Executive Vice-President in the August 23, 1997 election for the Liga ng Barangay Provincial Chapter of the province of Palawan. Onon was proclaimed the winning candidate in the said election prompting Quejano to file a post proclamation protest with the Board of Election Supervisors (BES), which was decided against him on August 25, 1997.

Not satisfied with the decision of the BES, Quejano filed a Petition for Review of the decision of the BES with the Regional Trial Court of Palawan and Puerto Princesa City (RTC). On April 26, 1999, Onon filed a motion to dismiss the Petition for Review raising the issue of jurisdiction. Onon claimed that the RTC had no jurisdiction to review the decisions rendered by the BES in any post proclamation electoral protest in connection with the 1997 Liga ng mga Barangay election of officers and directors. In his motion to dismiss, Onon claimed that the Supplemental Guidelines for the 1997 Liga ng mga Barangay election issued by the DILG on August 11, 1997 in its Memorandum Circular No. 97-193, providing for review of decisions or resolutions of the BES by the regular courts of law is an ultra vires act and is void for being issued without or in excess of jurisdiction, as its issuance is not a mere act of supervision but rather an exercise of control over the Liga's internal organization.

On June 22, 1999, the RTC denied Onon's motion to dismiss. In its order, the RTC ratiocinated that the Secretary of the Department of Interior and Local Government² is vested with the power "to establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and the promotion of local autonomy and monitor compliance thereof by said units."³ The RTC added that DILG Circular No. 97-193 was issued by the DILG Secretary pursuant to his rule-making power as provided for under Section 7, Chapter II, Book IV of the Administrative Code.⁴ Consequently, the RTC ruled that it had jurisdiction over the petition for review filed by Quejada.⁵

Motion for reconsideration of the aforesaid Order was denied⁶ prompting the petitioner to file the present petition wherein the following issues are raised:

A. WHETHER OR NOT THE QUESTIONED PROVISION IN MEMORANDUM CIRCULAR 97-193 WAS ISSUED BY THE DILG SECRETARY IN EXCESS OF HIS AUTHORITY.

B. WHETHER OR NOT THE RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING THE QUESTIONED ORDERS.⁷

In support of his petition, Onon argues that the "Supplemental Guidelines for the 1997 Synchronized Election of the Provincial and Metropolitan Chapters and for the Election of the National Chapter of the Liga ng mga Barangay" contradicts the "Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors" and is therefore invalid. Onon alleges that the Liga ng mga Barangay (LIGA) is not a local government unit considering that a local government unit must have its own source of income, a certain number of population, and a specific land area in order to exist or be created as such. Consequently, the DILG only has a limited supervisory authority over the LIGA. Moreover, Onon Argues that even if the DILG has supervisory authority over the LIGA, the act of the DILG in issuing Memorandum Circular No. 97-193 or the supplemental rules and guidelines for the conduct of the 1997 LIGA elections had the effect of modifying, altering and nullifying the rules prescribed by the National Liga Board. Onon posits that the issuance of said guidelines allowing an appeal of the decision of the BES to the regular courts rather than to the National Liga Board is no longer an exercise of supervision but an exercise of control.⁸

In his comment to the petition, private respondent Quejano argues that the Secretary of the DILG has competent authority to issue rules and regulations like Memorandum Circular No. 97-893. The Secretary of DILG's rule-making power is conferred by the Administrative Code. Considering that the Memorandum Circular was issued pursuant to his rule making power, Quejano insists that the lower court did not commit any reversible error when it denied Onon's motion to dismiss.⁹

On the other hand, the public respondent represented herein by the Solicitor General, filed a separate Manifestation and Motion in Lieu of Comment agreeing with the position of petitioner Onon. The Solicitor General affirms Onon's claim that in issuing the questioned Memorandum Circular, the Secretary of the DILG effectively amended the rules and guidelines promulgated by National Liga Board. This act was no longer a mere act of supervision but one of control. The Solicitor General submits that the RTC committed grave abuse of discretion in not dismissing the petition for review of the BES decision filed before it for failure of the petitioner to exhaust the rightful remedy which was to appeal to the National Liga Board.¹⁰

On October 27, 1999, this Court denied petitioner Onon's motion for the issuance of restraining order for lack of merit.

After a careful review of the case, we sustain the position of the petitioner.

The resolution of the present controversy requires an examination of the questioned provision of Memorandum Circular No. 97-193 and the Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors (Guidelines). The memorandum circular reads, insofar as pertinent, as follows:

"Any post-proclamation protest must be filed with the BES within twenty-four (24) hours from the closing of the election. The BES shall decide the same within forty-eight (48) hours from receipt thereof. The decision of the BES shall be final and immediately executory without prejudice to the filing of a Petition for Review with the regular courts of law."¹¹ (emphasis supplied)

On the other hand, the GUIDELINES provides that the BES shall have the following among its duties:

"To resolve any post-proclamation electoral protest which must be submitted in writing to this Board within twenty-four (24) hours from the close of election; provided said Board shall render its decision within forty-eight (48) hours from receipt hereof; and provided further that the decision must be submitted to the National Liga Headquarters within twenty-four (24) hours from the said decision. The decision of the Board of Election Supervisors in this respect shall be subject to review by the National Liga Board the decision of which shall be final and executory."¹² (emphasis supplied)

Memorandum Circular No. 97-193 was issued by the DILG Secretary pursuant to the power of general supervision of the President over all local government units which was delegated to the DILG Secretary by virtue of Administrative Order No. 267 dated February 18, 1992.¹³ The President's power of general supervision over local government units is conferred upon him by the Constitution.¹⁴ The power of supervision is defined as "the power of a superior officer to see to it that lower officers perform their functions in accordance with law."¹⁵ This is distinguished from the power of control or "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter."¹⁶

On many occasions in the past, this court has had the opportunity to distinguish the power of supervision from the power of control. In Taule vs. Santos,¹⁷ we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.¹⁸ Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act.¹⁹

Does the President's power of general supervision extend to the liga ng mga barangay, which is not a local government unit?²⁰

We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Code²¹ defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.²² The liga shall have chapters at the municipal, city, provincial and metropolitan political subdivision levels. The municipal and city chapters of the liga shall be composed of the barangay representatives of the municipal and city barangays respectively. The duly elected presidents of the component municipal and city chapters shall constitute the provincial chapter or the metropolitan political subdivision chapter. The duly elected presidents of highly urbanized cities, provincial chapters, the Metropolitan Manila chapter and metropolitan political subdivision chapters shall constitute the National Liga ng mga Barangay.²³

The liga at the municipal, city, provincial, metropolitan political subdivision, and national levels directly elect a president, a vice-president and five (5) members of the board of directors. The board shall appoint its secretary and treasurer and create such other positions as it may deem necessary for the management of the chapter.²⁴

The ligas are primarily governed by the provisions of the Local Government Code.²⁵ However, their respective constitution and by-laws shall govern all other matters affecting the internal organization of the liga not otherwise provided for in the Local Government Code provided that the constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local Government Code and shall always conform to the provisions of the Constitution and existing laws.²⁶

Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG insofar as it authorizes the filing a Petition for Review of the decision of the BES with the regular courts in a post proclamation electoral protest is of doubtful constitutionality. We agree with both the petitioner and the Solicitor General that in authorizing the filing of the petition for review of the decision of the BES with the regular courts, the DILG Secretary in effect amended and modified the GUIDELINES promulgated by the National Liga Board and adopted by the LIGA which provides that the decision of the BES shall be subject to review by the National Liga Board. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances.²⁷ To monitor means "to watch, observe or check" and is compatible with the power of supervision of the DILG Secretary over local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments.²⁸ Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.²⁹

The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing the respondent's Petition for Review for failure to exhaust all administrative remedies and for lack of jurisdiction.

WHEREFORE, the instant petition is hereby GRANTED. The Order of the Regional Trial Court dated June 22, 1999 is REVERSED and SET ASIDE. The Petition for Review filed by the private respondent docketed as SPL. PROC. NO. 1056 is DISMISSED.

SO ORDERED.

Melo, Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

Footnotes:

¹ Penned by Judge Nelia Yap Fernandez.

² Secretary Robert Z. Barbers.

³ RTC Order quoting Book IV, Title XII, Chapter 1, Sec. 3 (2) of the Administrative Code; Rollo, 84.

⁴ "(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;"

⁵ Rollo, 84-85.

⁶ Order dated July 26, 1999; Rollo, 89.

⁷ Memorandum for the Petitioner, 3; Rollo, 155.

⁸ Petition, 7-12; Rollo, 10-15.

⁹ Comment, 4-7; Rollo, 119-121.

¹⁰ Manifestation and Motion in Lieu of Comment, 3-5; Rollo, 126-128.

¹¹ Article II, par. 3.

¹² § 1, Article VIII, par. 1.2.2.

¹³ See Whereas clauses, Memorandum Circular No. 97-193, August 11, 1997.

¹⁴ § 4, Article X.

¹⁵ Drilon vs. Lim 335 SCRA 135, 141 [1994].

¹⁶ Ibid, 140-141.

¹⁷ 200 SCRA 512.

¹⁸ Ibid.

¹⁹ Drilon vs. Lim Supra, 142.

²⁰ As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators or viability and projected capacity to provide service. These are income, population and land area. See § 7, Local Government Code, Republic Act No. 7160.

²¹ Republic Act No. 7160.

²² § 491, Local Government Code.

²³ § 492, Local Government Code.

²⁴ § 493, Local Government Code.

²⁵ Book III, Title VI, Local Government Code.

²⁶ § 507, Local Government Code.

²⁷ Taule vs. Santos, 200 SCRA 512, 523 [1991].

²⁸ Ibid.

²⁹ Ibid.

GEN. RENATO DE VILLA, BRIG. GEN. DOMINGO RIO, LT. COL. MIGUEL CORONAL, and P/MAJ. NICOLAS TORRES,vs. THE CITY OF BACOLOD 1990

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80744 September 20, 1990

GEN. RENATO DE VILLA, BRIG. GEN. DOMINGO RIO, LT. COL. MIGUEL CORONAL, and P/MAJ. NICOLAS TORRES, petitioners,
vs.
THE CITY OF BACOLOD and LT. COL. HERMAN S. PLOTEÑA, respondents.

Roem J. Arbolado for Lt. Col. Herman Ploteña.

Raul S. Magbanua for City of Bacolod.

PADILLA, J.:

On or about 12 September 1987, petitioner Lt. Gen. Renato de Villa, then Director General of the Integrated National Police (INP), relieved respondent Lt. Col. Herman S. Ploteña as Bacolod City INP Station Commander and assigned him to the PC Provincial Headquarters in Bacolod City.

The city of Bacolod filed with the RTC of Bacolod a complaint for declaratory relief and/or injunction with prayer for issuance of a writ of preliminary mandatory injunction to declare the relief of Ploteña as invalid and illegal.

Said complaint was later amended to implead Ploteña as an unwilling co-plaintiff (defendant) who filed an answer with crossclaim praying for dismissal of the complaint against him but asked for reinstatement with full backwages and without loss of seniority rights allegedly because he has security of tenure as a civil servant. Defendants therein (herein petitioners) claimed that Gen. de Villa, as Director General of the INP, has the power and authority under PD 765, PD 1162 and EO 1012 to replace Ploteña Thru the Solicitor General, a motion to dismiss was filed. After hearing on the motion to dismiss, the entire case was, by agreement of the parties, submitted for resolution.

Since the replacement of Ploteña was a fait accompli, the RTC treated the case as an ordinary civil action pursuant to Sec. 6, Rule 64 of the Rules of Court, and held on 12 November 1987 that Ploteña was summarily replaced without observance of due process, violative of Executive Order 1012 as amended by Executive Order 1027 and the 1987 Constitution requiring as an essential condition for relief a prior recommendation of, or consultation with the local chief executive, in the instant case, the City Mayor of Bacolod.

Not satisfied with the decision of the RTC, petitioners have come to this Court. Respondent Ploteña in a manifestation dated 31 May 1988 refrained from filing any comment and opted to adopt whatever favorable comment the respondent city would file. After two (2) show cause resolutions from this Court and motions for extension, the City of Bacolod finally filed its one (1) page comment praying for the dismissal of the petition as moot and academic, it being satisfied with the performance of the new station commander Lt. Col. Nicolas Torres. Ploteña filed a manifestation to the effect that he will abide by the RTC decision while the Office of the Solicitor General prays for the allowance of the petition in order to reverse the RTC decision.

We grant the petition because the city's change of heart is not a permanent solution to the issues it has raised.

It is worth noting that Section 6 of PD 765 ¹ includes regular members of the INP within the career service category of the Civil Service. Section 7 of the decree also provides:

SEC. 7. Authority of the President of the Philippines over the Integrated National Police. — In the exercise of its power to maintain peace, law, order and public safety, the Integrated National Police shall be subject to the command and general supervision of the President of the Philippines and shall function directly under the Department of National Defense.

Section 9 provides:

Transfer of Administrative Supervision and Control. The power of administrative supervision and control by city and municipal governments over their respective local police forces, jails and fire departments as defined under existing laws and charters, notwithstanding the transition periods provided in the abovementioned Decrees on integration, shall be transferred to, and exercised by the Chief of Constabulary as Director-General of the Integrated National Police; ... ² (Emphasis supplied)

The power of control, undefined in PD 765, has been jurisprudentially defined (with reference to the president's power of control) as the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter. ³

In Ang-Angco vs. Castillo, et al. (L-17169, 30 November 1963) control was defined as follows:

That meaning is also the meaning given to the word 'control' as used in administrative law. Thus, the Department Head pursuant to Section 79(c) is given direct control of all bureaus and offices under his department by virtue of which he may repeal or modify decisions of the chiefs of said bureaus or offices and under Section 74 of the same Code, the President's control over the executive department only refers to matters of general policy. ... .

On the other hand, the power of supervision means the power of a superior officer to see to it that subordinates perform their functions according to law. ⁴

General supervision, operational supervision and direction are separately defined under PD 1162, Section 1 as follows:

d. General Supervision. — It is the power to see to it that the units or elements of the Integrated National Police perform their duties properly according to existing laws and the rules, regulations and policies promulgated by competent authority in order that the overall mission of the Integrated National Police in maintaining law and order insuring public safety in any province, city or municipality shall be effectively achieved. ... .

e. Operational Supervision and Direction. — It is the power to see to it that the units or elements of the Integrated National Police perform their duties properly according to existing laws and the rules, regulations and policies promulgated by competent authority, and the power to employ or deploy such units or elements, in coordination with the Provincial or District Police Superintendent, Station Commander or Officer-in-Charge to insure public safety and the effective maintenance of peace and order within the locality.

In addition, the last paragraph of Section 1, Executive Order 1012 ⁵ provides:

xxx xxx xxx

In accordance with Section 2 of Presidential Decree No. 1162, the Provincial Governors, City Mayors and Municipal Mayors shall have the power to exercise general supervision over units and elements of the INP stationed or assigned in their respective jurisdictions, and shall accordingly exercise the powers and authorities provided for in Section 1(d) of said Presidential Decree No. 1162.

Executive Orders 1012 and 1027 did not remove administrative supervision and control over police units from the INP chief, what is given to local executives over local police units is general and, at most, operational supervision and direction.

Administrative supervision and control is not the same as general or operational supervision, and direction; but the RTC ruling appears to interchange the two (2) things.

Section 4 of Executive Order 1027 ⁶ which is relied upon by the Bacolod RTC states:

SEC. 4. Once the reassignments herein required are in place, no further reassignment or detail of policemen outside their respective towns or cities of residence shall be made without the approval of the Municipal or City Mayor concerned. No appointment of new policemen in any municipality or city shall be made, except upon the recommendation of the Municipal or City Mayor therein. The new appointees shall, as a general rule, be residents of the city or municipality to where they are assigned or stationed. (Emphasis supplied)

The above section speaks of no further reassignment or detail of policemen outside their respective towns or cities of residence without the approval of the Municipal or City Mayor concerned. The Office of the Solicitor General contends that said directive refers only to ordinary policemen and not to officers and the approval of the local chief executive is necessary only if the reassignment or detail of the policemen is outside of the city or municipality which happens to be his residence. But, even if the section were to apply to police officers, the situation contemplated in the section does not exist in the case at bar for Ploteña has been re-assigned to the PC Provincial Headquarters also in Bacolod City.

PD 531 ⁷ which integrated the police departments of Negros Occidental provides in Section 6 thereof that in case of conflict between the exercise of administrative control and supervision on the one hand and operational control, direction and supervision on the other hand, the latter shall prevail. Be that as it may, the operative word here is control, i.e. who has control? The local executives have general and operational supervision over local police units, but no power of administrative supervision or control over them; hence, absence of recommendation from the local chief executive does not invalidate the replacement of a Station Commander made by the INP Director General.

At best, the participation of the local chief executive is recom

mandatory but the power to relieve or reassign a city INP Station Commander is lodged with the INP Director General under existing laws.

To conclude, as the Bacolod RTC has done, that Ploteña replacement, transfer or reassignment may only be done upon approval of the local chief executive, defies organizational interests. If the RTC's position were correct, a deadlock can ensue; an intransigent local executive would be in a position to nullify the power of administrative supervision and control vested by law in the PC Chief/INP Director General.

The undisputed assertion of the Office of the Solicitor General is that the decision to relieve Ploteña was reached after consultations with the Regional Directors and Police Superintendents relative to his performance in the face of the worsening peace and order and insurgency situation in Bacolod City. The PC/INP Commander's power of control encompasses such a transfer. There is thus no need to discuss further the issue of due process.

Moreover, Executive Order 1040 ⁸ directly placed the National Police Commission under the office of the President. The Commission exercises administrative control and supervision over all units of the INP force throughout the country. Questions therefore of propriety of a transfer or relief of policemen have to be threshed out before said body whose decisions are appealable to the office of the President. Were it not for the legal issue presented, the petition before the lower court would have been premature for failure to exhaust administrative remedies.

The Supreme Court interprets the law, it does not shirk from this duty but takes this opportunity to bring to the attention of our lawmakers the danger of numerous laws/issuances covering the same subject matter, as demonstrated in this case. Careful drafting and compilation in one comprehensive/concise piece of legislation can eliminate unnecessary contradictions and confusing interpretations by those tasked to execute such laws.

WHEREFORE, the petition is GRANTED. The challenged RTC decision is REVERSED and SET ASIDE.

SO ORDERED.

Melencio-Herrera (Chairperson), Sarmiento and Regalado, JJ., concur.

Paras, J., is on leave.

Footnotes

1 Dated 8 August 1975.

2 Also Section 7 PD 1162, dated 8 June 1977.

3 Mondano vs. Silvosa, 97 Phil. 143,148: Tuazon vs. Magallanes, Co. Inc., G.R. No. L-27811, October 17, 1967; Lacson vs. Romero, 84 Phil. 740, 759.

4 Bernas, Joaquin G. The (Revised) 1973 Philippine Constitution Notes and Cases, Part I, 1983 Edition, p. 474.

5 Dated 22 March 1985.

6 Dated 14 May 1985.

7 8 August 1974.

8 Dated 10 July 1985