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

EN BANC

G.R. No. 132875-76 February 3, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO G. JALOSJOS, accused-appellant.

R E S O L U T I O N

YNARES-SANTIAGO, J.:

The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts¹ is pending appeal. The accused-appellant filed this motion asking that he be allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings despite his having been convicted in the first instance of a non-bailable offense.

The issue raised is one of the first impression.

Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in the judicial interpretation of legislative privilege in the context of penal law.

The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was filed on the grounds that —

1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any ruling, giving priority to any right or interest — not even the police power of the State.

2. To deprive the electorate of their elected representative amounts to taxation without representation.

3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the renewed mandates entrusted to him by the people.

4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.

5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.

6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of government to respect its mandate.

7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to discharge his mandate.

8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.

The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of the First District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by his constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his constituents made possible by the intervention of the State. He adds that it cannot be defeated by insuperable procedural restraints arising from pending criminal cases.

True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our first task is to ascertain the applicable law.

We start with the incontestable proposition that all top officials of Government-executive, legislative, and judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment to high government office, by itself, frees the official from the common restraints of general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of obedience rather than exemption.

The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations.

The 1935 Constitution provided in its Article VI on the Legislative Department.

Sec 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the sessions of Congress, and in going to and returning from the same, . . .

Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessions and in going to and returning from the same.

For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive interpretation of immunity and intent to confine it within carefully defined parameters is illustrated by the concluding portion of the provision, to wit:

. . . but the Batasang Pambansa shall surrender the member involved the custody of the law within twenty four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so.

The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject Congressman to the custody of the law. The requirement that he should be attending sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session.

The accused-appellant argues that a member of Congress' function to attend sessions is underscored by Section 16 (2), Article VI of the Constitution which states that —

(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide.

However, the accused-appellant has not given any reason why he should be exempted from the operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional foundations.

Accused-appellant's reliance on the ruling in Aguinaldo v. Santos², which states, inter alia, that —

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 a people have elected a man to office, it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people.

will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case involves the administrative removal of a public officer for acts done prior to his present term of office. It does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is not removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or, otherwise, disqualified.

One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society must protect itself. It also serves as an example and warning to others.

A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United States v. Gustilo,³ it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to incarceration if there is risk of his absconding.⁴

The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his regular place of confinement.

It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded capture despite a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accused-appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the State's penal system.

Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:

a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the issue of whether to expel/suspend him from the House of Representatives;

b) to undergo dental examination and treatment at the clinic of his dentist in Makati City;

c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City;

d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by chartered plane and private vehicle.

He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he was likewise allowed/permitted to leave the prison premises, to wit.

a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one guard and allowed to use his own vehicle and driver in going to and from the project area and his place of confinement.

b) to continue with his dental treatment at the clinic of his dentist in Makati City.

c) to be confined at the Makati Medical Center in Makati City for his heart condition.

There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.

What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional sessions and committee meeting for five (5) days or more in a week will virtually make him free man with all the privilege 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. Of particular relevance in this regard are the following observations of the Court in Martinez v. Morfe:⁵

The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their conscience of their conscience. Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same. There is likely to be no dissent from the proposition that a legislator or a delegate can perform his functions efficiently and well, without the need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the judiciary would remain independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the essence.

The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal branch of government to respect his mandate. He also claims that the concept of temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/restrictions when he is allowed to leave jail.

We remain unpersuaded.1âwphi1.nêt

No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an] inter-department coordination, he is also provided with an office at the Administration Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents." Accused-appellant further admits that while under detention, he has filed several bills and resolutions. It also appears that he has been receiving his salaries and other monetary benefits. Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of Representative consistent with the restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even have been allowed by the prison authorities at the National Penitentiary to perform these acts.

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws."⁶ This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.⁷ The organs of government may not show any undue favoritism or hostility to any person. Neither partiality not prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under 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 legislative 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. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need to its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals.⁸

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded.⁹

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.¹⁰

Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise of his power of
locomotion.¹¹

More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is restraint by judgment of a court or lawful tribunal, and is personal to the accused.¹² The term refers to the restraint on the personal liberty of another; any prevention of his movements from place to place, or of his free action according to his own pleasure and will.¹³ Imprisonment is the detention of another against his will depriving him of his power of locomotion¹⁴ and it "[is] something more than mere loss of freedom. It includes the notion of restraint within limits defined by wall or any exterior barrier."¹⁵

It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in society.¹⁶ Prison officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.¹⁷

Premises considered, we are constrained to rule against the accused-appellant's claim that re-election to public office gives priority to any other right or interest, including the police power of the State.

WHEREFORE, the instant motion is hereby DENIED.

SO ORDERED.

Kapunan, Panganiban, Quisumbing, Purisima, Pardo Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., and also in separate opinion of Justice Reyes.
Bellosillo, J., I concur in the main and separate opinion.
Melo, J., I join the majority as well as the separate opinion.
Puno, J., I concur with the main and separate opinion.
Vitug, J., I concur in both the ponencia and the separate opinion.
Mendoza, J., I concur in this as well as in the separate opinion of Justice Gonzaga-Reyes.
Gonzaga-Reyes, J., See separate concurring opinion.

Separate Opinions

GONZAGA-REYES, J., concurring opinion;

For resolution in this case is a motion filed by accused-appellant Romeo G. Jalosjos, who has been convicted by the trial court of two counts of statutory rape and six counts of acts of lasciviousness, which judgment is currently pending appeal before this Court. As a member of the House of Representatives, accused-appellant claims that his constituents are deprived of representation by reason of his incarceration pending appeal of the judgment of conviction and that he should therefore be allowed to discharge his legislative functions, including attendance of legislative sessions and committee meetings.

I concur in the ponencia of my colleague Madame Justice Consuelo Ynares-Santiago in holding that accused-appellant's motion is bereft of any legal merit.

The Bill of Rights 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.¹ (emphasis supplied)

This constitutional provision denying the right to bail for offenses punishable by reclusion perpetua when the evidence of guilt is strong is reiterated in Rule 114 of the Rules of Criminal Procedure, viz —

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. — No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution.

The trial court found accused-appellant guilty of the crime of statutory rape, which is punishable by reclusion perpetua. In People v. Divina² we held that the trial court's judgment of conviction imports that the evidence of guilt of the crime charged is strong. Unquestionably, the continued incarceration of accused-appellant is a valid and constitutionally mandated curtailment of his rights to provisional liberty pending appeal of his conviction.

Neither may the constitutional provision granting immunity from arrest to legislators provide legal justification for accused-appellant's motion. The Constitution states that —

A Senator of Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.³

I agree with the ponencia that to allow accused-appellant to attend legislative sessions would constitute an unjustified broadening of the privilege from the arrest bestowed by the Constitution upon members of Congress. Neither the legislative history of this provision nor the general principles of official immunity support an expanded interpretation of such privilege.

Unlike the present Constitution, the 1935 Constitution⁴ limited the privilege from arrests to "all cases except treason, felony, and breach of the peace." This provision was taken from the Philippine Autonomy Act of 1916, which was in turn based upon the American Constitution. In accordance with American precedents, the word "treason, felony and breach of the peace" have been construed to include all indictable offenses.⁵ Thus, under the 1935 Constitution the freedom from arrest only encompassed civil arrest.

Under the 1973⁶ and the 1987 Constitution, the privilege was broadened to include arrests for crimes punishable by imprisonment of six years or less. Despite the expansion of the privilege, the rationale for granting members of Congress immunity from arrest remained the same — to ensure that they are not prevented from performing their legislative duties.⁷ In fact, the 1986 Constitutional Commission rejected the proposal of one of its members to expand the scope of the parliamentary immunity to include searches because, unlike arrest, it was not demonstrated that the conduct of searches would prevent members of Congress from discharging their legislative functions.⁸

It is a well-established principle that official immunity is a necessary adjunct to the vigorous and effective performance of official functions. Members of Congress in particular, who are called upon to exercise their discretion and judgment in enacting laws responsive to the needs of the people, would certainly be impeded in the exercise of their legislative functions if every dissatisfied person could compel them to vindicate the wisdom of their enactments in an action for damages or question their official acts before the courts.⁹

It was never the intention of the framers of the 1973 and 1987 Constitutions to shield a member of Congress from the consequences of his wrongdoing. Thus, despite the widening of its scope to include criminal offenses, the privilege from arrest is still circumscribed by the nature or the gravity of the offenses of which the accused is charged. Hence, the commission of serious crimes, i.e., crimes punishable by afflictive penalties or with capital punishment, does not fall within the scope of the constitutional privilege. A member of Congress could only invoke the immunity from arrest for relatively minor offenses, punishable at most by correctional penalties. As enunciated in Martinez v. Morfe,¹⁰ "when it comes to freedom from arrest, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same"

The accused-appellant, having been convicted of statutory rape which is punishable by reclusion perpetua, an afflictive penalty, is obviously not entitled to the privilege of parliamentary immunity and, proceeding from the above stated rationale for legislative immunity, a liberal construction of the constitutional privilege is not in order.

It should also be mentioned that, under the factual circumstances of this case, the applicability of this privilege from arrest to accused-appellant is already moot and academic. The constitutional provision contemplates that stage of the criminal process at which personal jurisdiction is sought to be acquired over the accused by means of his arrest. Accused-appellant is no longer at the point of merely being arrested. As a matter of fact, he has already been arrested, tried and convicted by the trial court.

Accused-appellant's contention that his re-election constitutes a renewal of his mandate and that such an expression of the popular will should not be rendered inutile by even the police power of the State is hollow. In Aguinaldo v. Comelec,¹¹ Aguinaldo v. Santos¹² and in Salalima v. Guingona¹³ we laid down the doctrine 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 therefor. This doctrine of forgiveness or condonation cannot apply to criminal acts which the re-elected official may have committed during his previous term.¹⁴ The administrative liability of a public officer is separate and distinct from his penal liability.1âwphi1.nêt

Penal laws are obligatory upon all who live or sojourn in Philippine territory. Since the Constitution itself provides for the immunities from the general application of our criminal laws which a Senator or Member of the House of Representatives may enjoy, it follows that any expansion of such immunities must similarly be based upon an express constitutional grant.

I vote to deny the motion.

Footnotes

¹ RTC Decision, pp. 54-55.

² 212 SCRA 768, at 773 [1992].

³ 19 Phil, 208, 212.

⁴ Cubillo v. City Warden, 97 SCRA 771 [1980].

⁵ 44 SCRA 37 [1972].

⁶ Art. III, Sec. 1.

⁷ Ichong v. Hernandez, 101 Phil. 1155.

⁸ Skinuer v. Oklahoma, 315 US 535.

⁹ See Fernando, Constitution of the Philippines, 2nd Edition, p. 548.

¹⁰ See Felwa v. Salas, 18 SCRA 606 [1966]; Ichong v. Hernandez, 101 Phil. 1155: Dumlao v. Commission on Elections, 95 SCRA 392 [1980]; Ceniza v. Commission on Elections, 96 SCRA 763 (1980); People v. Cayat, 68 Phil. 12.

¹¹ Black's Law Dictionary, Special Deluxe 5th Ed., p. 681.

¹² 20 Words And Phrases, Permanent Ed., p. 466, citing US v. Safeway Stores [Tex.] C.C.C.A. Kan. 140F 2d 834, 839 and US v. Mitchell, 163 F. 1014, 1016 at p. 470.

¹³ Ibid, p. 470, citing Pine v. Okzewski, 170 A. 825, 827, 112 N.J.L. 429.

¹⁴ Id., p. 472, citing US v. Benner, 24 Fed. Gas. 1084, 1087.

¹⁵ Id., citing Bird v. Jones, 4 N.Y. Leg. Obs. 158, 159.

¹⁶ Sheldon, Krantz, 1088 Supplement. The Law of Correction and Prisoners' Rights, 3rd Ed., p. 121.

¹⁷ Ibid.

GONZAGA-REYES, J., concurring opinion;

¹ 1987 Constitution, Art. III, sec. 13.

² 221 SCRA 209 (1993).

³ Art. VI, sec. 11.

⁴ Art. VI, sec. 15. — The Senators and Members of the House of Representatives shall in all cases except treasons, felony, and breach of the peace, be privileged from the arrest during their attendance at the sessions of the Congress, and in going to and returning from the same; and for any speech and debate therein, they shall not be questioned in any other place.

⁵ Martinez v. Morfe, 44 SCRA 22 (1972), citing Williamson v. United States, 207 U.S. 425.

⁶ Art. VIII, sec. 9. — A member of the Batasang Pambansa shall, in all offenses punishable by not more than six years imprisonment, be privilege from arrest during his attendance at its sessions, and in going to and returning from the same; but the Batasang Pambansa shall surrender the member involved to the custody of the law within twenty-four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so. A member shall not be questioned nor held liable in any other place for any speech or debate in the Batasan or in any committee thereof.

⁷ 1987 Constitution, II RECORD 90.

⁸ Ibid., 178-185.

⁹ Mechem, F.R., A Treatise on the Law of Public Offices and Officers (1890), 431.

¹⁰ Supra.

¹¹ Res., G.R. Nos. 105128-30, May 14, 1992.

¹² 212 SCRA 768 (1992).

¹³ 257 SCRA 55 (1996).

¹⁴ Salalima v. Guingona, id.

salumbides case: doctrine of condonation

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)lawph!l

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.

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