Bar Q and A #33

The petition of CTD should be dismissed. Section 21 of the Ombudsman Act vests the Office of the Ombudsman with disciplinary authority over all elective and appointive officials of the government, except officials who may be removed only by impeachment, Members of Congress and the Judiciary. While CTD has the rank of a Justice of the Court of Appeals, he does not belong to the Judiciary but to the Executive Department. This simply means that he has the same compensation and privileges as a Justice of the Court of Appeals. If the Supreme Court were to investigate CTD, it would be performing a non-judicial function. This will violate the principle of separation of powers (Noblejas v. Teehankee, 23 SCRA 405)

No. This is because the ultimate effect is to remove him from office, circumventing the provision on removal by impeachment thus violating his security of tenure (In Re: First Indorsement from Hon. Raul Gonzalez, A.M. No. 88-4-5433, April 15, 1988).

An impeachable officer who is a member of the Philippine bar cannot be disbarred first without being impeached (Jarque v. Desierto, A.C. No. 4509, December 5, 1995).

a. The contention of Director WOW is not meritorious. The suspension meted out to him is preventive and not punitive. Section
24 of Republic Act No. 6770 grants the Ombudsman the power to impose preventive suspension up to six months. Preventive suspension maybe imposed without any notice or hearing. It is merely a preliminary step in an administrative investigation and is not the final determination of the guilt of the officer concerned (Garcia v. Mojica, 314 SCRA 207).

b. The motion to dismiss should be denied. Since the suspension of Director WOW was immediately executory, he would have suffered irreparable injury had he tried to exhaust administrative remedies before filing a petition in court (University of the Philippines Board of Regents v. Rasul, 200 SCRA 685). Besides, the question involved is purely legal (Azarcon v. Bunagan, 399 SCRA 365).

a. Since the complaint refers to the performance of the duties of Judge Red, Ombudsman Grey should not act on it and should refer it to the Supreme Court. His investigation will encroach upon the exclusive power of administrative supervision of the Supreme Court over all courts (Maceda v. Vasquez, 221 SCRA 464).

b. The Ombudsman can investigate crimes or offenses committed by public officers which are not connected with the performance of their duties. Under Section 13(1), Article XI of the Constitution, the Ombudsman can investigate any act or omission of a public official which is illegal (Deloso v. Domingo, 191 SCRA 545).

c. All public officers and employees are required to submit a declaration under oath of their assets, liabilities and net worth (Section 17, Article XI of the Constitution).

a. A violation of Section 3(b) and (c) of the Anti-Graft and Corrupt Practices Act prescribes. As held in Presidential Ad- Hoc Fact-Finding Committee on Behest Loans v. Desierto,317 SCRA 272 (1999), Article XI, Section 15 of the Constitution does not apply to criminal cases for violation of the Anti- Graft and Corrupt Practices Act.

b. Article XI, Section 15 of the Constitution provides that the right of the State to recover properties unlawfully acquired by public officials or employees, or from them or from their nominees or transferees, shall not be barred by prescription.

Section 2 of the Introductory Provision of the Administrative Code of 1987 defines the government of the Philippines as the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, same as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. Government owned or controlled corporation are within the scope and meaning of the Government of the Philippines if they are performing governmental or political functions.

An agency of the government refers to any of the various units of the government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein [Section 2(4j, Introductory Provisions, Administrative Code of 1987; Mactan Cebu v. Marcos, 261 SCRA 667
(1996)].

An instrumentality of the government refers to any agency of the national government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions, and government-owned or controlled corporation [Section 3(10), Introductory Provisions, Administrative Code of 1987; Mactan Cebu v. Marcos, 261 SCRA 667 (1996)].

a. The Department of Public Works and Highways is an agency of the government, because it is a department.

b. The Bangko Sentral ng Pilipinas is a government instrumentality, because it is vested with the special function of being the central monetary authority, and enjoys operational autonomy through its charter (Section 1, Republic Act No. 7653).

c. The Philippine Ports Authority is a government instrumentality, because it is merely attached to the Department of Transportation and Communication, it is vested with the special function of regulating ports, and it is endowed with all corporate powers through its charter (Sections 4(a) and 6 (a)(2), Presidential Decree No. 857).

d. The Land Transportation Office is an agency of the government, because it is an office under the Department of Transportation and Communication (Section 4(a), Republic Act No. 4136).

e. The Land Bank of the Philippines is a government instrumentality, because it is vested with the special function of financing agrarian reform, it is endowed with all corporate powers, and it enjoys autonomy through a charter (Section 74, Agrarian Land Reform Code).

A quasi-judicial body is an administrative agency which performs adjudicative functions. Although itis authorized by law to try and decide certain cases, it is not bound strictly by the technical rules of evidence and procedure. However, it must observe the requirements of due process.

Section 5[5] of Article VIII of the Constitution clearly provides that the “Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court;” accordingly, it is clear that the Supreme Court may review and reverse the rules of procedure of the Sandiganbayan and the Constitutional Commissions.

With respect to the rules of procedure of Congress in its proceedings, legislative inquiries and on impeachment, while these rules may be generally considered as political questions, when questioned before the courts in a proper case, they would nevertheless be subject to the power of judicial review under the second paragraph of Section 1, Article VIII of the Constitution, which authorizes it to review and annul all acts of any branch or instrumentality of the government which may be tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.

The issuance of the new rules and regulations violated due process. Under Section 9, Chapter II, Book VII of the Administrative Code of 1987, as far as practicable, before adopting proposed rules, an administrative agency should publish or circulate notices of the proposed rules and afford interested parties the opportunity to submit their views; and in the fixing of rates, no rule shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least  two weeks before the first hearing on them. In accordance with this provision, in Commissioner of Internal Revenue v. CA, 261 SCRA 236, it was held that when an administrative rule substantially increases the burden of those directly affected, they should be accorded the chance to be heard before its issuance.