SUPREME COURT

GARCILLANO v. HOUSE [G.R. NO. 170338 : December 23, 2008]

More than three years ago, tapes ostensibly containing a wire-tapped conversation purportedly between the President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a controversy that placed the legitimacy of the present administration on the line, and resulted in the near-collapse of the Arroyo govern-ment. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained the President's instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings were to become the subject of heated legislative

hearings conducted separately by committees of both Houses of Congress.1

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional investigation jointly conducted by the Commit-tees on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Tech-nology, and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, several versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI

Deputy Director Samuel Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the supposed three-hour taped conversation. After prolonged and impassioned debate by the committee members on the admissibility and authenticity of the recordings, the tapes were eventually played in the chambers of the House.2

On August 3, 2005, the respondent House Committees de-cided to suspend the hearings indefinitely. Nevertheless, they decided to prepare committee reports based on the said recordings and the testimonies of the resource persons.3

Alarmed by these developments, petitioner Virgilio O. Garcil-lano (Garcillano) filed with this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction4 docketed as G.R. No. 170338. He prayed that the respondent House Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped conversations in their committee re-ports and for any other purpose. He further implored that the said recordings and any reference thereto be ordered stricken off the records of the inquiry, and the respondent House Com-mittees directed to desist from further using the recordings in any of the House proceedings.5

Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly stopped.

After more than two years of quiescence, Senator Panfilo Lac-son roused the slumbering issue with a privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson promised to provide the public "the whole unvarnished

truth – the what's, when's, where's, who's and why's" of the alleged wiretap, and sought an inquiry into the perceived will-ingness of telecommunications providers to participate in ne-farious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacson's speech was referred to the Senate Committee on National De-fense and Security, chaired by Senator Rodolfo Biazon, who had previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties.7

In the Senate's plenary session the following day, a lengthy debate ensued when Senator Richard Gordon aired his con-cern on the possible transgression of Republic Act (R.A.) No. 42008 if the body were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-Santi-ago delivered a privilege speech, articulating her considered view that the Constitution absolutely bans the use, posses-sion, replay or communication of the contents of the "Hello Garci" tapes. However, she recommended a legislative inves-tigation into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal wiretapping of public officials.9

On September 6, 2007, petitioners Santiago Ranada and Os-waldo Agcaoili, retired justices of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Pre-liminary Injunction,10 docketed as G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative in-quiry. They argued in the main that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution.11

As the Court did not issue an injunctive writ, the Senate pro-ceeded with its public hearings on the "Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.

Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Anto-nio F. Trillanes filed their Comment16 on the petition on Sep-tember 25, 2007.

The Court subsequently heard the case on oral argument.17

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource persons summoned by the Senate to appear and testify at its hearings, moved to inter-vene as petitioner in G.R. No. 179275.18

On November 20, 2007, the Court resolved to consolidate G.R. NOS. 170338 and 179275.19

It may be noted that while both petitions involve the "Hello Garci" recordings, they have different objectives–the first is poised at preventing the playing of the tapes in the House and their subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the conduct of the Sen-ate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.

- I -

Before delving into the merits of the case, the Court shall first resolve the issue on the parties' standing, argued at length in their pleadings.

In Tolentino v. COMELEC,20 we explained that "' [l]egal stand-ing' or locus standi refers to a personal and substantial inter-est in a case such that the party has sustained or will sustain direct injury because of the challenged governmental act x x x," thus,

generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the chal-lenged action; and (3) the injury is likely to be redressed by a favorable action.21

The gist of the question of standing is whether a party has "al-leged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely de-pends for illumination of difficult constitutional questions."22

However, considering that locus standi is a mere procedural technicality, the Court, in recent cases, has relaxed the strin-gent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal policy has been observed, allowing ordinary citi-zens, members of Congress, and civic organizations to prose-cute actions involving the constitutionality or validity of laws, regulations and rulings."24 The fairly recent Chavez v. Gonza-les25 even permitted a non-member of the broadcast media, who failed to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary of Justice and the National Telecommunications Commission. The ma-jority, in the said case, echoed the current policy that "this Court has repeatedly and consistently refused to wield proce-dural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest, in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government

have kept themselves within the limits of the Constitution and the laws, and that they have not abused the discretion given to them."26

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that he is the person al-luded to in the "Hello Garci" tapes. Further, his was publicly identified by the members of the respondent committees as one of the voices in the recordings.27 Obviously, therefore, pe-titioner Garcillano stands to be directly injured by the House committees' actions and charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition.

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are concerned citizens, taxpayers, and members of the IBP. They are of the firm con-viction that any attempt to use the "Hello Garci" tapes will fur-ther divide the country. They wish to see the legal and proper use of public funds that will necessarily be defrayed in the en-suing public hearings. They are worried by the continuous vio-lation of the laws and individual rights, and the blatant at-tempt to abuse constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation.28

Intervenor Sagge alleges violation of his right to due process considering that he is summoned to attend the Senate hear-ings without being apprised not only of his rights therein through the publication of the Senate Rules of Procedure Gov-erning Inquiries in Aid of Legislation, but also of the intended legislation which underpins the investigation. He further inter-venes as a taxpayer bewailing the useless and wasteful ex-penditure of public funds involved in the conduct of the ques-tioned hearings.29

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that intervenor Sagge asserts

his constitutional right to due process,30 they satisfy the requi-site personal stake in the outcome of the controversy by merely being citizens of the Republic.

Following the Court's ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient petitioners Ranada's and Agcaoili's and intervenor Sagge's allegation that the continu-ous conduct by the Senate of the questioned legislative in-quiry will necessarily involve the expenditure of public funds.32 It should be noted that in Francisco, rights personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged unconstitutional acts of the House of Representa-tives, yet the Court granted standing to the petitioners therein for, as in this case, they invariably invoked the vindi-cation of their own rights–as taxpayers, members of Con-gress, citizens, individually or in a class suit, and members of the bar and of the legal profession–which were also suppos-edly violated by the therein assailed unconstitutional acts.33

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor Sagge advance constitu-tional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. The is-sues are of transcendental and paramount importance not only to the public but also to the Bench and the Bar, and should be resolved for the guidance of all.34

Thus, in the exercise of its sound discretion and given the lib-eral attitude it has shown in prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal stand-ing of petitioners Ranada and Agcaoili and intervenor Sagge.

- II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed in our prior deci-

sions is the principle that the exercise by this Court of judicial power is limited to the determination and resolution of actual cases and controversies.35 By actual cases, we mean existing conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.36 Neither will the Court determine a moot question in a case in which no practical relief can be granted. A case becomes moot when its purpose has become stale.37 It is un-necessary to indulge in academic discussion of a case pre-senting a moot question as a judgment thereon cannot have any practical legal effect or, in the nature of things, cannot be enforced.38

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings and from including the same in their commit-tee report. He likewise prays that the said tapes be stricken off the records of the House proceedings. But the Court notes that the recordings were already played in the House and heard by its members.39 There is also the widely publicized fact that the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano petition has to be dismissed for being moot and academic. After all, prohibition is a preventive rem-edy to restrain the doing of an act about to be done, and not intended to provide a remedy for an act already accom-plished.41

- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to continue with the con-duct of the questioned legislative inquiry without duly pub-lished rules of procedure, in clear derogation of the constitu-tional requirement.

Section 21, Article VI of the 1987 Constitution explicitly pro-vides that "[t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure." The requisite of publication of the rules is in-tended to satisfy the basic requirements of due process.42

Publication is indeed imperative, for it will be the height of in-justice to punish or otherwise burden a citizen for the trans-gression of a law or rule of which he had no notice whatso-ever, not even a constructive one.43 What constitutes publica-tion is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the com-pletion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines."44

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of Proce-dure Governing Inquiries in Aid of Legislation had been pub-lished in newspapers of general circulation only in 1995 and in 2006.45 With respect to the present Senate of the 14th Con-gress, however, of which the term of half of its members com-menced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their ses-sion.

Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on Accountability of Public Officers and Investigations,46 we said:

Fourth, we find merit in the argument of the OSG that respon-dent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSG's explanation:

The phrase "duly published rules of procedure" requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus en-act a different set of rules as it may deem fit. Not having pub-lished its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, proce-durally infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the following rationaliza-tion:

The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Sena-tors expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Consti-tution, like the 1935 Constitution, requires a majority of Sena-tors to "constitute a quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be repub-lished by the Senate after every expiry of the term of twelve Senators.47

The subject was explained with greater lucidity in our Resolu-tion48 (On the Motion for Reconsideration) in the same case, viz.:

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing," as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts sep-arately and independently of the Senate of the Congress be-fore it. The Rules of the Senate itself confirms this when it states:

RULE XLIVUNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the suc-ceeding Congress as if present for the first time.

Undeniably from the foregoing, all pending matters and pro-ceedings, i.e., unpassed bills and even legislative investiga-tions, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with

respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Con-gress but will, as a matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institu-tion and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Sen-ate's main rules of procedure) states:

RULE LIAMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval.

RULE LIIDATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into ac-count the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after pub-lication in two (2) newspapers of general circulation." The lat-ter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legisla-tive inquiries which come within the rule on unfinished busi-ness.

The language of Section 21, Article VI of the Constitution re-quiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incum-bent upon the Senate to publish the rules for its legislative in-quiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subse-quent Congresses or until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.

Respondents justify their non-observance of the constitution-ally mandated publication by arguing that the rules have never been amended since 1995 and, despite that, they are published in booklet form available to anyone for free, and ac-cessible to the public at the Senate's internet web page.49

The Court does not agree. The absence of any amendment to the rules cannot justify the Senate's defiance of the clear and unambiguous language of Section 21, Article VI of the Consti-tution. The organic law instructs, without more, that the Sen-ate or its committees may conduct inquiries in aid of legisla-tion only in accordance with duly published rules of proce-dure, and does not make any distinction whether or not these rules have undergone amendments or revision. The constitu-tional mandate to publish the said rules prevails over any cus-tom, practice or tradition followed by the Senate.

Justice Carpio's response to the same argument raised by the respondents is illuminating:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation," precluding any other form of publication. Publication in accordance with Tañada is mandatory to comply with the due process require-ment because the Rules of Procedure put a person's liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792,50 otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an elec-tronic data message or an electronic document as the func-tional equivalent of a written document only for evidentiary purposes.51 In other words, the law merely recognizes the ad-missibility in evidence (for their being the original) of elec-tronic data messages and/or electronic documents.52 It does

not make the internet a medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legisla-tion by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only "in accordance with its duly published rules of procedure."

Very recently, the Senate caused the publication of the Sen-ate Rules of Procedure Governing Inquiries in Aid of Legisla-tion in the October 31, 2008 issues of Manila Bulletin and Malaya. While we take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions. Insofar as the consoli-dated cases are concerned, the legislative investigation sub-ject thereof still could not be undertaken by the respondent Senate Committees, because no published rules governed it, in clear contravention of the Constitution.

With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in the consolidated peti-tions.

WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on the "Hello Garci" tapes.

SO ORDERED.

LAZATIN v. DESIERTO [G.R. NO. 147097 : June 5, 2009]

This resolves the Petition for Certiorari under Rule 65 of the Rules of Court, praying that the Ombudsman's disapproval of the Office of the Special Prosecutor's (OSP) Resolution1 dated September 18, 2000, recommending dismissal of the criminal cases filed against herein petitioners, be reversed and set aside.

The antecedent facts are as follows.

On July 22, 1998, the Fact-Finding and Intelligence Bureau of the Office of the Ombudsman filed a Complaint-Affidavit dock-eted as OMB-0-98-1500, charging herein petitioners with Ille-gal Use of Public Funds as defined and penalized under Article 220 of the Revised Penal Code and violation of Section 3, paragraphs (a) and (e) of Republic Act (R.A.) No. 3019, as amended.

The complaint alleged that there were irregularities in the use by then Congressman Carmello F. Lazatin of his Countrywide Development Fund (CDF) for the calendar year 1996, i.e., he was both proponent and implementer of the projects funded from his CDF; he signed vouchers and supporting papers per-tinent to the disbursement as Disbursing Officer; and he re-ceived, as claimant, eighteen (18) checks amounting to P4,868,277.08. Thus, petitioner Lazatin, with the help of peti-tioners Marino A. Morales, Angelito A. Pelayo and Teodoro L. David, was allegedly able to convert his CDF into cash.

A preliminary investigation was conducted and, thereafter, the Evaluation and Preliminary Investigation Bureau (EPIB) is-sued a Resolution2 dated May 29, 2000 recommending the fil-ing against herein petitioners of fourteen (14) counts each of Malversation of Public Funds and violation of Section 3 (e) of R.A. No. 3019. Said Resolution was approved by the Ombuds-

man; hence, twenty-eight (28) Informations docketed as Crim-inal Case Nos. 26087 to 26114 were filed against herein peti-tioners before the Sandiganbayan.

Petitioner Lazatin and his co-petitioners then filed their re-spective Motions for Reconsideration/Reinvestigation, which motions were granted by the Sandiganbayan (Third Division). The Sandiganbayan also ordered the prosecution to re-evalu-ate the cases against petitioners.

Subsequently, the OSP submitted to the Ombudsman its Res-olution3 dated September 18, 2000. It recommended the dis-missal of the cases against petitioners for lack or insufficiency of evidence.

The Ombudsman, however, ordered the Office of the Legal Affairs (OLA) to review the OSP Resolution. In a Memorandum4

dated October 24, 2000, the OLA recommended that the OSP Resolution be disapproved and the OSP be directed to pro-ceed with the trial of the cases against petitioners. On Octo-ber 27, 2000, the Ombudsman adopted the OLA Memoran-dum, thereby disapproving the OSP Resolution dated Septem-ber 18, 2000 and ordering the aggressive prosecution of the subject cases. The cases were then returned to the Sandigan-bayan for continuation of criminal proceedings.

Thus, petitioners filed the instant petition.

Petitioners allege that:

I.

THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION OR ACTED WITHOUT OR IN EXCESS OF HIS JURISDICTION.

II.

THE QUESTIONED RESOLUTION WAS BASED ON MISAPPRE-HENSION OF FACTS, SPECULATIONS, SURMISES AND CONJEC-TURES.5

Amplifying their arguments, petitioners asseverate that the Ombudsman had no authority to overturn the OSP's Resolu-tion dismissing the cases against petitioners because, under Section 13, Article XI of the 1987 Constitution, the Ombuds-man is clothed only with the power to watch, investigate and recommend the filing of proper cases against erring officials, but it was not granted the power to prosecute. They point out that under the Constitution, the power to prosecute belongs to the OSP (formerly the Tanodbayan), which was intended by the framers to be a separate and distinct entity from the Of-fice of the Ombudsman. Petitioners conclude that, as provided by the Constitution, the OSP being a separate and distinct en-tity, the Ombudsman should have no power and authority over the OSP. Thus, petitioners maintain that R.A. No. 6770 (The Ombudsman Act of 1989), which made the OSP an or-ganic component of the Office of the Ombudsman, should be struck down for being unconstitutional.

Next, petitioners insist that they should be absolved from any liability because the checks were issued to petitioner Lazatin allegedly as reimbursement for the advances he made from his personal funds for expenses incurred to ensure the imme-diate implementation of projects that are badly needed by the Pinatubo victims.

The Court finds the petition unmeritorious.

Petitioners' attack against the constitutionality of R.A. No. 6770 is stale. It has long been settled that the provisions of R.A. No. 6770 granting the Office of the Ombudsman prosecu-

torial powers and placing the OSP under said office have no constitutional infirmity. The issue of whether said provisions of R.A. No. 6770 violated the Constitution had been fully dis-sected as far back as 1995 in Acop v. Office of the Ombuds-man.6

Therein, the Court held that giving prosecutorial powers to the Ombudsman is in accordance with the Constitution as para-graph 8, Section 13, Article XI provides that the Ombudsman shall "exercise such other functions or duties as may be pro-vided by law." Elucidating on this matter, the Court stated:

x x x While the intention to withhold prosecutorial powers from the Ombudsman was indeed present, the Commission [referring to the Constitutional Commission of 1986] did not hesitate to recommend that the Legislature could, through statute, prescribe such other powers, functions, and duties to the Ombudsman. x x x As finally approved by the Commission after several amendments, this is now embodied in paragraph 8, Section 13, Article XI (Accountability of Public Officers) of the Constitution, which provides:

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

x x x

Promulgate its rules and procedure and exercise such other functions or duties as may be provided by law.

Expounding on this power of Congress to prescribe other pow-ers, functions, and duties to the Ombudsman, we quote Com-missioners Colayco and Monsod during interpellation by Com-missioner Rodrigo:

x x x

MR. RODRIGO:

Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: "to exercise such powers or perform such functions or duties as may be provided by law." So, the legislature may vest him with powers taken away from the Tanodbayan, may it not?cralawred

MR. COLAYCO:

Yes.

MR. MONSOD:

Yes.

x x x

MR. RODRIGO:

Madam President. Section 5 reads: "The Tanodbayan shall continue to function and exercise its powers as provided by law."

MR. COLAYCO:

That is correct, because it is under P.D. No. 1630.

MR. RODRIGO:

So, if it is provided by law, it can be taken away by law, I sup-pose.

MR. COLAYCO:

That is correct.

MR. RODRIGO:

And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are "such func-tions or duties as may be provided by law." The sponsors ad-mitted that the legislature later on might remove some pow-ers from the Tanodbayan and transfer these to the Ombuds-man.

MR. COLAYCO:

Madam President, that is correct.

x x x

MR. RODRIGO:

Madam President, what I am worried about is, if we create a constitutional body which has neither punitive nor prosecu-tory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them.

MR. MONSOD:

I agree with the Commissioner.

MR. RODRIGO:

Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature?

x x x

MR. MONSOD: (reacting to statements of Commissioner Blas Ople):

x x x

With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exer-cise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We do not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombuds-man need in order that he be more effec-tive.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

This is not foreclosed.

So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability.7

The constitutionality of Section 3 of R.A. No. 6770, which sub-sumed the OSP under the Office of the Ombudsman, was like-wise upheld by the Court in Acop. It was explained, thus:

x x x the petitioners conclude that the inclusion of the Office of the Special Prosecutor as among the offices under the Of-fice of the Ombudsman in Section 3 of R.A. No. 6770 ("An Act Providing for the Functional and Structural Organization of the

Office of the Ombudsman and for Other Purposes") is uncon-stitutional and void.

The contention is not impressed with merit. x x x

x   x   x

x x x Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exer-cise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman cre-ated under this Constitution." The underscored phrase evi-dently refers to the Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special Prose-cutor's powers under P.D. No. 1630 or grant it other powers, except those powers conferred by the Constitution on the Of-fice of the Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman. In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Of-fice of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A. No. 6770.8

The foregoing ruling of the Court has been reiterated in Ca-manag v. Guerrero.9 More recently, in Office of the Ombuds-man v. Valera,10 the Court, basing its ratio decidendi on its rul-

ing in Acop and Camanag, declared that the OSP is "merely a component of the Office of the Ombudsman and may only act under the supervision and control, and upon authority of the Ombudsman" and ruled that under R.A. No. 6770, the power to preventively suspend is lodged only with the Ombudsman and Deputy Ombudsman.11 The Court's ruling in Acop that the authority of the Ombudsman to prosecute based on R.A. No. 6770 was authorized by the Constitution was also made the foundation for the decision in Perez v. Sandiganbayan,12

where it was held that the power to prosecute carries with it the power to authorize the filing of informations, which power had not been delegated to the OSP. It is, therefore, beyond cavil that under the Constitution, Congress was not proscribed from legislating the grant of additional powers to the Ombuds-man or placing the OSP under the Office of the Ombudsman.

Petitioners now assert that the Court's ruling on the constitu-tionality of the provisions of R.A. No. 6770 should be revisited and the principle of stare decisis set aside. Again, this con-tention deserves scant consideration.

The doctrine of stare decisis et non quieta movere (to adhere to precedents and not to unsettle things which are estab-lished) is embodied in Article 8 of the Civil Code of the Philip-pines which provides, thus:

ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.

It was further explained in Fermin v. People13 as follows:

The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed in subse-

quent cases by all courts in the land. The doctrine of stare de-cisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.14 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

In Chinese Young Men's Christian Association of the Philippine Islands v. Remington Steel Corporation,15 the Court ex-pounded on the importance of the foregoing doctrine, stating that:

The doctrine of stare decisis is one of policy grounded on the necessity for securing certainty and stability of judicial deci-sions, thus:

Time and again, the court has held that it is a very desirable and necessary judicial practice thatwhen a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Stare de-cisis et non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means that for the sake of certainty, a conclusion reached in one case should be applied to those that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to reliti-gate the same issue.16

The doctrine has assumed such value in our judicial system that the Court has ruled that "[a]bandonment thereof must be based only on strong and compelling reasons, otherwise, the becoming virtue of predictability which is expected from this

Court would be immeasurably affected and the public's confi-dence in the stability of the solemn pronouncements dimin-ished."17 Verily, only upon showing that circumstances atten-dant in a particular case override the great benefits derived by our judicial system from the doctrine of stare decisis, can the courts be justified in setting aside the same.

In this case, petitioners have not shown any strong, com-pelling reason to convince the Court that the doctrine of stare decisis should not be applied to this case. They have not suc-cessfully demonstrated how or why it would be grave abuse of discretion for the Ombudsman, who has been validly con-ferred by law with the power of control and supervision over the OSP, to disapprove or overturn any resolution issued by the latter.

The second issue advanced by petitioners is that the Ombuds-man's disapproval of the OSP Resolution recommending dis-missal of the cases is based on misapprehension of facts, speculations, surmises and conjectures. The question is really whether the Ombudsman correctly ruled that there was enough evidence to support a finding of probable cause. That issue, however, pertains to a mere error of judgment. It must be stressed that certiorari is a remedy meant to correct only errors of jurisdiction, not errors of judgment. This has been emphasized in First Corporation v. Former Sixth Division of the Court of Appeals,18 to wit:

It is a fundamental aphorism in law that a review of facts and evidence is not the province of the extraordinary remedy of certiorari, which is extra ordinem - beyond the ambit of ap-peal. In certiorari proceedings, judicial review does not go as far as to examine and assess the evidence of the parties and to weigh the probative value thereof. It does not include an in-quiry as to the correctness of the evaluation of evidence. Any error committed in the evaluation of evidence is merely an er-

ror of judgment that cannot be remedied by certiorari . An er-ror of judgment is one which the court may commit in the ex-ercise of its jurisdiction. An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction, or with grave abuse of discretion, which is tantamount to lack or in excess of jurisdiction and which er-ror is correctible only by the extraordinary writ of certiorari . Certiorari will not be issued to cure errors of the trial court in its appreciation of the evidence of the parties, or its conclu-sions anchored on the said findings and its conclusions of law. It is not for this Court to re-examine conflicting evidence, re-evaluate the credibility of the witnesses or substitute the find-ings of fact of the court a quo.19

Evidently, the issue of whether the evidence indeed supports a finding of probable cause would necessitate an examination and re-evaluation of the evidence upon which the Ombuds-man based its disapproval of the OSP Resolution. Hence, the Petition for Certiorari should not be given due course.

Likewise noteworthy is the holding of the Court in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,20

imparting the value of the Ombudsman's independence, stat-ing thus:

Under Sections 12 and 13, Article XI of the 1987 Constitution and RA 6770 (The Ombudsman Act of 1989), the Ombudsman has the power to investigate and prosecute any act or omis-sion of a public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. It has been the consistent ruling of the Court not to interfere with the Ombudsman's exercise of his investigatory and prosecu-tory powers as long as his rulings are supported by substan-tial evidence. Envisioned as the champion of the people and preserver of the integrity of public service, he has wide lati-tude in exercising his powers and is free from intervention

from the three branches of government. This is to ensure that his Office is insulated from any outside pressure and improper influence.21

Indeed, for the Court to overturn the Ombudsman's finding of probable cause, it is imperative for petitioners to clearly prove that said public official acted with grave abuse of discretion. In Presidential Commission on Good Government v. Desierto,22

the Court elaborated on what constitutes such abuse, to wit:

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a vir-tual refusal to perform the duty enjoined or to act at all in contemplation of law. x x x23

In this case, petitioners failed to demonstrate that the Om-budsman acted in a manner described above. Clearly, the Ombudsman was acting in accordance with R.A. No. 6770 and properly exercised its power of control and supervision over the OSP when it disapproved the Resolution dated September 18, 2000.

It should also be noted that the petition does not question any order or action of the Sandiganbayan Third Division; hence, it should not have been included as a respondent in this peti-tion.

IN VIEW OF THE FOREGOING, the petition is DISMISSED for lack of merit. No costs.

SO ORDERED.

FERDINAND A. CRUZ v. JUDGE PRISCILLA MIJARES [G.R. NO. 154464, September 11, 2008]

This is a Petition for Certiorari, Prohibition and Mandamus, with prayer for the issuance of a writ of preliminary injunction under Rule 65 of the Rules of Court. It was directly filed with this Court assailing the Resolutions dated May 10, 20021 and July 31, 20022 of the Regional Trial Court (RTC), Branch 108, Pasay City, which denied the appearance of the plaintiff Ferdi-nand A. Cruz, herein petitioner, as party litigant, and the re-fusal of the public respondent, Judge Priscilla Mijares, to vol-untarily inhibit herself from trying the case. No writ of prelimi-nary injunction was issued by this Court.

The antecedents:

On March 5, 2002, Ferdinand A. Cruz (petitioner) sought per-mission to enter his appearance for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court3 that a non-lawyer may appear before any court and conduct his litigation personally.

During the pre-trial, Judge Priscilla Mijares required the peti-tioner to secure a written permission from the Court Adminis-trator before he could be allowed to appear as counsel for himself, a party-litigant. Atty. Stanley Cabrera, counsel for Benjamin Mina, Jr., filed a Motion to Dismiss instead of a pre-trial brief to which petitioner Cruz vehemently objected alleg-ing that a Motion to Dismiss is not allowed after the Answer had been filed. Judge Mijares then remarked, "Hay naku, masama `yung marunong pa sa Huwes. Ok?" and proceeded

to hear the pending Motion to Dismiss and calendared the next hearing on May 2, 2002.

On March 6, 2002, petitioner Cruz filed a Manifestation and Motion to Inhibit,4 praying for the voluntary inhibition of Judge Mijares. The Motion alleged that expected partiality on the part of the respondent judge in the conduct of the trial could be inferred from the contumacious remarks of Judge Mijares during the pre-trial. It asserts that the judge, in uttering an uncalled for remark, reflects a negative frame of mind, which engenders the belief that justice will not be served.5

In an Order6 dated April 19, 2002, Judge Mijares denied the motion for inhibition stating that throwing tenuous allegations of partiality based on the said remark is not enough to war-rant her voluntary inhibition, considering that it was said even prior to the start of pre-trial. Petitioner filed a motion for re-consideration7 of the said order.

On May 10, 2002, Judge Mijares denied the motion with final-ity.8 In the same Order, the trial court held that for the failure of petitioner Cruz to submit the promised document and ju-risprudence, and for his failure to satisfy the requirements or conditions under Rule 138-A of the Rules of Court, his appear-ance was denied.

In a motion for reconsideration,9 petitioner reiterated that the basis of his appearance was not Rule 138-A, but Section 34 of Rule 138. He contended that the two Rules were distinct and are applicable to different circumstances, but the respondent judge denied the same, still invoking Rule 138-A, in an Order10

dated July 31, 2002.

On August 16, 2002, the petitioner directly filed with this Court, the instant petition and assigns the following errors:

I.

THE RESPONDENT REGIONAL TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED THE APPEA-RANCE OF THE PETITIONER, FOR AND IN THE LATTER'S BE-HALF, IN CIVIL CASE NO. 01-0401 [sic] CONTRARY TO RULE 138, SECTION 34 OF THE RULES OF COURT, PROVIDING FOR THE APPEARANCE OF NON-LAWYERS AS A PARTY LITIGANT;

II.

THE RESPONDENT COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT DID NOT VOLUNTARILY INHIBIT DESPITE THE ADVENT OF JURISPRUDENCE [sic] THAT SUCH AN INHIBITION IS PROPER TO PRESERVE THE PEOPLE'S FAITH AND CONFIDENCE TO THE COURTS.The core issues raised before the Court are: (1) whether the extraordinary writs of certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules of Court may issue; and (2) whether the respondent court acted with grave abuse of dis-cretion amounting to lack or excess of jurisdiction when it de-nied the appearance of the petitioner as party litigant and when the judge refused to inhibit herself from trying the case.

This Court's jurisdiction to issue writs of certiorari, prohibition, mandamus and injunction is not exclusive; it has concurrent jurisdiction with the RTCs and the Court of Appeals. This con-currence of jurisdiction is not, however, to be taken as an ab-solute, unrestrained freedom to choose the court where the application therefor will be directed.11 A becoming regard of the judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against the RTCs should be filed with the Court of Appeals.12 The hierarchy of courts is determinative of the appropriate forum for petitions for the extraordinary writs; and only in exceptional cases and for compelling reasons, or if warranted by the nature of the is-sues reviewed, may this Court take cognizance of petitions filed directly before it.13

Considering, however, that this case involves the interpreta-tion of Section 34, Rule 138 and Rule 138-A of the Rules of Court, the Court takes cognizance of herein petition. Nonethe-less, the petitioner is cautioned not to continue his practice of filing directly before this Court petitions under Rule 65 when the issue raised can be resolved with dispatch by the Court of Appeals. We will not tolerate litigants who make a mockery of the judicial hierarchy as it necessarily delays more important concerns before us.

In resolving the second issue, a comparative reading of Rule 138, Section 34 and Rule 138-A is necessary.

Rule 138-A, or the Law Student Practice Rule, provides:RULE 138-A

LAW STUDENT PRACTICE RULE

Section 1. Conditions for Student Practice. - A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tri-bunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.

Sec. 2. Appearance. - The appearance of the law student au-thorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, mo-tions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the le-gal clinic.The respondent court held that the petitioner could not ap-pear for himself and on his behalf because of his failure to comply with Rule 138-A. In denying petitioner's appearance,

the court a quo tersely finds refuge in the fact that, on De-cember 18, 1986, this Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to prove on record that he is enrolled in a recognized school's clinical legal education program and is under supervision of an attorney duly accredited by the law school.

However, the petitioner insisted that the basis of his appear-ance was Section 34 of Rule 138, which provides:Sec. 34. By whom litigation is conducted. - In the court of a justice of the peace, a party may conduct his litigation in per-son, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.and is a rule distinct from Rule 138-A.

From the clear language of this provision of the Rules, it will have to be conceded that the contention of the petitioner has merit. It recognizes the right of an individual to represent him-self in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual liti -gant may personally do everything in the course of proceed-ings from commencement to the termination of the litiga-tion.14 Considering that a party personally conducting his liti-gation is restricted to the same rules of evidence and proce-dure as those qualified to practice law,15Petitioner, not being a lawyer himself, runs the risk of falling into the snares and haz-ards of his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct the litigation of Civil Case No. 01-0410. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent him-self.

The trial court must have been misled by the fact that the pe-titioner is a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in apply-ing Rule 138-A, when the basis of the petitioner's claim is Sec-tion 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non-lawyer as a party represent-ing himself.

The conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No. 19 is misplaced. The Court never intended to repeal Rule 138 when it released the guide-lines for limited law student practice. In fact, it was intended as an addendum to the instances when a non-lawyer may ap-pear in courts and was incorporated to the Rules of Court through Rule 138-A.

It may be relevant to recall that, in respect to the constitu-tional right of an accused to be heard by himself and coun-sel,16 this Court has held that during the trial, the right to counsel cannot be waived.17 The rationale for this ruling was articulated in People v. Holgado,18 where we declared that "even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his in-nocence."

The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous concern that the Constitution accords the accused in a criminal prosecution obviously does not obtain in a civil case. Thus, a party litigant in a civil case, who insists that he can, without a lawyer's assistance, effec-tively undertake the successful pursuit of his claim, may be given the chance to do so. In this case, petitioner alleges that he is a law student and impliedly asserts that he has the com-

petence to litigate the case himself. Evidently, he is aware of the perils incident to this decision.

In addition, it was subsequently clarified in Bar Matter 730, that by virtue of Section 34, Rule 138, a law student may ap-pear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts. Here, we have a law student who, as party litigant, wishes to represent himself in court. We should grant his wish.

Additionally, however, petitioner contends that the respon-dent judge committed manifest bias and partiality by ruling that there is no valid ground for her voluntary inhibition de-spite her alleged negative demeanor during the pre-trial when she said: "Hay naku, masama `yung marunong pa sa Huwes. Ok?" Petitioner avers that by denying his motion, the respon-dent judge already manifested conduct indicative of arbitrari-ness and prejudice, causing petitioner's and his co-plaintiff's loss of faith and confidence in the respondent's impartiality.

We do not agree.

It must be noted that because of this incident, the petitioner filed an administrative case19 against the respondent for viola-tion of the Canons of Judicial Ethics, which we dismissed for lack of merit on September 15, 2002. We now adopt the Court's findings of fact in the administrative case and rule that there was no grave abuse of discretion on the part of Judge Mijares when she did not inhibit herself from the trial of the case.

In a Motion for Inhibition, the movant must prove the ground for bias and prejudice by clear and convincing evidence to dis-qualify a judge from participating in a particular trial,20 as vol-untary inhibition is primarily a matter of conscience and ad-dressed to the sound discretion of the judge. The decision on whether she should inhibit herself must be based on her ratio-

nal and logical assessment of the circumstances prevailing in the case before her.21 Absent clear and convincing proof of grave abuse of discretion on the part of the judge, this Court will rule in favor of the presumption that official duty has been regularly performed.

WHEREFORE, the Petition is PARTIALLY GRANTED. The as-sailed Resolution and Order of the Regional Trial Court, Branch 108, Pasay City are MODIFIED. Regional Trial Court, Branch 108, Pasay City is DIRECTED to ADMIT the Entry of Ap-pearance of petitioner in Civil Case No. 01-0410 as a party liti-gant.

No pronouncement as to costs.

SO ORDERED.

FIRST UNITED v. PORO POINT [G.R. NO. 178799 : January 19, 2009]

First United Constructors Corporation (FUCC) filed this special civil action for certiorari and prohibition with prayer for the is-suance of a temporary restraining order, seeking to annul (i) the re-bidding of the contract for the Upgrading of the San Fernando Airport Project, Phase I, held on May 8, 2007; (ii) the Notice of Award1 dated May 23, 2007 to Satrap Construction Company, Inc. (SCCI); and (iii) Notice to Proceed2 dated May 29, 2007 also to SCCI. FUCC also seeks to permanently enjoin the Special Bids and Awards Committee (SBAC) and Poro Point Management Corporation (PPMC) from implementing the Contract3 in favor of SCCI.

The factual antecedents are as follows:

On January 26, 2007, PPMC approved the Contract for the Up-grading of the San Fernando Airport Phase I. The SBAC then issued invitations to reputable contractors to pre-qualify for the project.

FUCC and two (2) other contractors - C.M. Pancho Construc-tion, Inc. (C.M. Pancho) and EEI-New Kanlaon Construction, Inc. Joint Venture (EEI-New Kanlaon JV) responded to the invi-tation and were pre-qualified to bid for the project. However, upon evaluation, none of the pre-qualified bidders was cho-sen. C.M. Pancho was disqualified because it did not possess the required minimum years of experience in airport projects, while EEI New Kanlaon JV was disqualified because it did not submit a special license to bid as joint venture. FUCC's techni-cal proposal, on the other hand, obtained a failing mark be-cause it failed to submit the automated weather observation system (AWOS) and its authorized representative did not sign some pages of the narrative construction method and the tax returns. FUCC sought reconsideration of the SBAC decision, but it was denied.4

FUCC then filed a protest5 with the PPMC. On March 26, 2007, Atty. Felix S. Racadio, PPMC Head, resolved FUCC's protest, viz.:

In sum, based on the issues raised and [the] arguments pre-sented by FUCC, this OFFICE finds NO REVERSIBLE ERROR committed by SBAC, both on its findings of 06 March 2007 (giving FUCC the FAILED rating) and 12 March 2007 (denial of FUCC's Motion for Reconsideration).

In addition to the "NO REVERSIBLE ERROR FINDING," there ex-ists a PRESUMPTION OF REGULARITY OF OFFICIAL ACTION OF A PUBLIC OFFICER. In the case at bar, such presumption ap-plies. The burden of proof lies with the FUCC. On this score, FUCC failed to even just scratch the surface of the same.

The proceedings and findings of SBAC, in the Pre-Qualification stage not having been put into issue by the PROTEST, then, FUCC had opted to leave them as they were, thus, let them remain UNDISTURBED.

WHEREFORE, in view of the foregoing, the PROTEST filed by FUCC which is under consideration is hereby DISMISSED for lack of merit.

The FILING FEE paid by FUCC, the protestant, via Metro Bank Cashier's Check No. 0600018513, dated March 19, 2007, in the amount of Four Million Seven Hundred Twenty-One Thou-sand Pesos (P4,721,000.00), Philippine Currency, which is equivalent to one [percent] (%) of the ABC being NON-RE-FUNDABLE (Sec. 55.1, IRR-A, RA 1984), the same is hereby or-dered FORFEITED in favor of PPMC.

SO ORDERED.6

SBAC then scheduled a re-bidding and issued new invitations to bid for the project. To enjoin the re-bidding set on May 8, 2007, FUCC filed a petition for injunction with prayer for the issuance of a preliminary injunction or temporary restraining order (TRO) with the Regional Trial Court (RTC) of La Union, docketed as Civil Case No. 7274.

On May 2, 2007, the RTC issued a TRO which, however, was lifted on May 4, 2007 because under Section 3 of Republic Act No. 8975,7 no court, except the Supreme Court, shall issue a TRO or injunction or prohibit the bidding or award of a govern-ment infrastructure project. SBAC thus proceeded with the re-bidding of the project on May 8, 2007 and awarded the project to SCCI as the lowest qualified bidder.8 The Contract9

for the project was signed, and a notice to proceed10 was served on SCCI on May 29, 2007.

FUCC filed an amended petition with the RTC to enjoin the im-plementation of the project. The Office of the Government Corporate Counsel (OGCC) moved to dismiss the petition for lack of jurisdiction.

Pending resolution of OGCC's motion to dismiss, FUCC moved for the dismissal of its amended petition, which was granted by the RTC on July 4, 2007, to wit:

Acting on the above-stated notice of dismissal, this Court hereby confirms the dismissal of the amended petition, in ef-fect the dismissal of the whole action, without prejudice, pur-suant to Sec. 1, Rule 17 of the Rules of Court.

WHEREFORE, this case is hereby DISMISSED.

SO ORDERED.11

Claiming that there is no appeal, or any speedy and adequate remedy in the ordinary course of law, FUCC comes to us via this petition. It also asks for the issuance of a TRO to enjoin the implementation of the project, asserting that SCCI is not qualified to undertake the project and the award clearly poses a real threat to the public welfare and safety. In its November 12, 2007 Resolution, this Court denied FUCC's application for the issuance of a TRO for lack of merit.

FUCC filed this petition praying for the following relief, viz.:

(a) That upon receipt of this Petition, a Temporary Restraining Order (TRO) be issued enjoining the implementation of the contract for the Upgrading of the San Fernando Airport Project, Phase I with respondent [SCCI] as the contractor;

(b) That after proper proceeding, judgment be rendered: (1) permanently enjoining the implementation of the contract for the Upgrading of the San Fernando Airport Project, Phase I with respondent [SCCI] as the contractor; (2) declaring the re-bidding of the contract for the Upgrading of the San Fernando Airport Project, Phase I on 08 May 2007 illegal and nullifying the results thereof; (3) annulling the Notice of Award dated 23 May 2007, the Contract for the Upgrading of the San Fer-nando Airport, Phase I entered into, by and between respon-dent PPMC and respondent [SCCI] on 29 May 2007, and the Notice to Proceed dated 29 May 2007; and (4) directing re-spondent SBAC and/or respondent PPMC and/or respondent Atty. Recadio to reconsider the "Failed" rating of the bid of FUCC, open the Financial Proposal Envelope submitted by FUCC during the original bidding, declare FUCC as the winning bidder, and forthwith award the contract to FUCC, as the win-ning bidder and being the only qualified contractor for the project.12

It asserts that SBAC and PPMC committed grave abuse of dis-cretion in disqualifying its bid, in denying its protest, in con-ducting a re-bidding and in awarding the project to SCCI. It in-sists that it is the only qualified contractor for the project and prays that it be declared the winning bidder.

We dismiss the petition.

Republic Act (RA) No. 9184, or the Government Procurement Reform Act, outlines the procedure to assail decisions of the SBAC in this wise:

SEC. 55. Protests on Decisions of the BAC. - Decisions of BAC in all stages of procurement may be protested to the head of the procuring entity and shall be in writing. Decisions of the BAC may be protested by filing a verified position paper and paying a nonrefundable protest fee. The amount of protest

fee and the periods during which the protests may be filed and resolved shall be specified in the IRR.

SEC. 56. Resolution of Protests. - The protests shall be re-solved strictly on the basis of records of the BAC. Up to a cer-tain amount specified in the IRR, the decisions of the Head of the Procuring Entity shall be final.

SEC. 57. Non-interruption of the Bidding Process. - In no case shall any protest taken from any decision treated in this Arti-cle stay or delay the bidding process. Protests must first be resolved before any award is made.

SEC. 58. Resort to Regular Courts; Certiorari. - Court action may be resorted only after the protest contemplated in this Article shall have been completed. Cases that are filed in vio-lation of the process specified in this Article shall be dismissed for lack of jurisdiction. The regional trial court shall have juris-diction over final decisions of the head of the procuring entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.

This provision is without prejudice to any law conferring on the Supreme Court the sole jurisdiction to issue temporary re-straining orders and injunctions relating to Infrastructure Projects of Government.

FUCC challenged the decision of SBAC in a protest filed with Atty. Racadio of the PPMC who affirmed the SBAC decision. In-stead of filing a petition for certiorari, as provided in Section 58, FUCC filed a petition for injunction with prayer for the is-suance of a temporary restraining order and/or preliminary in-junction with the RTC. FUCC, however, later moved for its dis-missal theorizing that the RTC had no jurisdiction over peti-tions for injunction. Thereafter, it filed this petition for certio-rari with this Court.

Section 4, Rule 65 of the 1997 Rules of Civil Procedure pro-vides that a special civil action for certiorari shall be filed not later than sixty (60) days from the notice of the judgment, or-der or resolution.13 FUCC admitted that it received the PPMC decision on March 27, 2007.14 However, it filed this petition assailing the said decision only on July 30, 2007. It is, there-fore, too late in the day for FUCC, via this petition, to assail the PPMC decision which rated its bid as failed.

Besides, FUCC violated the doctrine of judicial hierarchy in fil-ing this petition for certiorari directly with this Court. Section 58 is clear that petitions for the issuance of a writ of certiorari against the decision of the head of the procuring agency, like PPMC, should be filed with the Regional Trial Court. Indeed, the jurisdiction of the RTC over petitions for certiorari is con-current with this Court. However, such concurrence does not allow unrestricted freedom of choice of the court forum. A di-rect invocation of the Supreme Court's original jurisdiction to issue this writ should be allowed only when there are special and important reasons, clearly and specifically set out in the petition.15

In the present case, FUCC adduced no special and important reason why direct recourse to this Court should be allowed. Thus, we reaffirm the judicial policy that this Court will not en-tertain a direct invocation of its jurisdiction unless the redress desired cannot be obtained in the appropriate lower courts, and exceptional and compelling circumstances justify the re-sort to the extraordinary remedy of a writ of certiorari .

Similarly, the RTC is the proper venue to hear FUCC's prayer for permanent injunction. Unquestionably, RA No. 897516 en-joins all courts, except the Supreme Court, from issuing any temporary restraining order, preliminary injunction, or prelimi-nary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity to restrain,

prohibit or compel the bidding or awarding of a contract or project of the national government. The proscription, how-ever, covers only temporary restraining orders or writs but not decisions on the merits granting permanent injunction. Therefore, while courts below are prohibited by RA No. 8795 from issuing TROs or preliminary restraining orders pending the adjudication of the case, said statute, however, does not explicitly proscribe the issuance of a permanent injunction granted by a court of law arising from an adjudication of a case on the merits.17

As we explained in Alvarez v. PICOP Resources, Inc.:18

x x x Republic Act No. 8975 merely proscribes the issuance of temporary restraining orders and writs of preliminary injunc-tion and preliminary mandatory injunction. [It] cannot, under pain of violating the Constitution, deprive the courts of au-thority to take cognizance of the issues raised in the principal action, as long as such action and the relief sought are within their jurisdiction.

Clearly, except for the prayer for the issuance of a TRO or pre-liminary injunction, the issues raised by FUCC and the relief it sought are within the jurisdiction of the RTC. It is a procedural faux pas for FUCC to invoke the original jurisdiction of this Court over the issuance of a writ of certiorari and permanent injunction.

In any event, the invitation to bid contains a reservation for PPMC to reject any bid. It has been held that where the right to reject is so reserved, the lowest bid, or any bid for that matter, may be rejected on a mere technicality.19 The discre-tion to accept or reject bid and award contracts is vested in the government agencies entrusted with that function. This discretion is of such wide latitude that the Courts will not in-terfere therewith or direct the committee on bids to do a par-

ticular act or to enjoin such act within its prerogatives unless it is apparent that it is used as a shield to a fraudulent award;20 or an unfairness or injustice is shown;21 or when in the exercise of its authority, it gravely abuses or exceeds its jurisdiction. Thus, where PPMC as advertiser, availing itself of that right, opts to reject any or all bids, the losing bidder has no cause to complain or right to dispute that choice, unless fraudulent acts, injustice, unfairness or grave abuse of discre-tion is shown.

FUCC alleges that SBAC and PPMC, along with the SCCI and five (5) other bidders, colluded to rig the results of the re-bid-ding so that SCCI would emerge as the so-called lowest bid-der. The record, however, is bereft of any proof to substanti-ate the allegation. Neither is there any evidence offered to es-tablish unfairness, injustice, caprice or arbitrariness on the part of the SBAC or the PPMC in awarding the contract to SCCI, the lowest bidder. The presumption of regularity of the bidding must thus be upheld.

As we explained in JG Summit Holdings, Inc. v. Court of Ap-peals:22

The discretion to accept or reject a bid and award contracts is vested in the Government agencies entrusted with that func-tion. The discretion given to the authorities on this matter is of such wide latitude that the Courts will not interfere there-with, unless it is apparent that it is used as a shield to a fraud-ulent award (Jalandoni v. NARRA, 108 Phil. 486 [1960]). x x x The exercise of this discretion is a policy decision that neces-sitates prior inquiry, investigation, comparison, evaluation, and deliberation. This task can best be discharged by the Government agencies concerned, not by the Courts. The role of the Courts is to ascertain whether a branch or instrumen-tality of the Government has transgressed its constitutional boundaries. But the Courts will not interfere with executive or

legislative discretion exercised within those boundaries. Oth-erwise, it strays into the realm of policy decision-making.

It is only upon a clear showing of grave abuse of discretion that the Courts will set aside the award of a contract made by a government entity. Grave abuse of discretion implies a capricious, arbitrary and whimsical exercise of power (Filin-vest Credit Corp. v. Intermediate Appellate Court, No. 65935, 30 September 1988, 166 SCRA 155). The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, as to act at all in contemplation of law, where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility (Litton Mills, Inc. v. Galleon Trader, Inc., et al[.], L-40867, 26 July 1988, 163 SCRA 489).

Accordingly, there being no showing of grave abuse of discre-tion, FUCC has no valid ground to demand annulment of the contract between PPMC and SCCI.

WHEREFORE, the petition is DISMISSED. The assailed Decision of the PPMC is AFFIRMED.

SO ORDERED.

FIRST LEPANTO CERAMICS, INC. v. COURT OF APPEALS [G.R. No. 110571 March 10, 1994]

Brought to fore in this petition for certiorari and prohibition with application for preliminary injunction is the novel ques-tion of where and in what manner appeals from decisions of the Board of Investments (BOI) should be filed. A thorough scrutiny of the conflicting provisions of Batas Pambansa Bi-

lang 129, otherwise known as the "Judiciary Reorganization Act of 1980," Executive Order No. 226, also known as the Om-nibus Investments Code of 1987 and Supreme Court Circular No. 1-91 is, thus, called for.chanroblesvirtualawlibrarychan-robles virtual law library

Briefly, this question of law arose when BOI, in its decision dated December 10, 1992 in BOI Case No. 92-005 granted pe-titioner First Lepanto Ceramics, Inc.'s application to amend its BOI certificate of registration by changing the scope of its reg-istered product from "glazed floor tiles" to "ceramic tiles." Eventually, oppositor Mariwasa filed a motion for reconsidera-tion of the said BOI decision while oppositor Fil-Hispano Ce-ramics, Inc. did not move to reconsider the same nor appeal therefrom. Soon rebuffed in its bid for reconsideration, Mari-wasa filed a petition for review with respondent Court of Ap-peals pursuant to Circular 1-91.chanroblesvirtualawli-brarychanrobles virtual law library

Acting on the petition, respondent court required the BOI and petitioner to comment on Mariwasa's petition and to show cause why no injunction should issue. On February 17, 1993, respondent court temporarily restrained the BOI from imple-menting its decision. This temporary restraining order lapsed by its own terms on March 9, 1993, twenty (20) days after its issuance, without respondent court issuing any preliminary in-junction.chanroblesvirtualawlibrarychanrobles virtual law li-brary

On February 24, 1993, petitioner filed a "Motion to Dismiss Petition and to Lift Restraining Order" on the ground that re-spondent court has no appellate jurisdiction over BOI Case No. 92-005, the same being exclusively vested with the Supreme Court pursuant to Article 82 of the Omnibus Invest-ments Code of 1987.chanroblesvirtualawlibrarychanrobles vir-tual law library

On May 25, 1993, respondent court denied petitioner's motion to dismiss, the dispositive portion of which reads as follows:

WHEREFORE, private respondent's motion to dismiss the peti-tion is hereby DENIED, for lack of merit.chanroblesvirtualawli-brarychanrobles virtual law library

Private respondent is hereby given an inextendible period of ten (10) days from receipt hereof within which to file its com-ment to the petition. 1chanrobles virtual law library

Upon receipt of a copy of the above resolution on June 4, 1993, petitioner decided not to file any motion for reconsider-ation as the question involved is essentially legal in nature and immediately filed a petition for certiorari and prohibition before this Court.chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner posits the view that respondent court acted without or in excess of its jurisdiction in issuing the questioned resolu-tion of May 25, 1993, for the following reasons:

I. Respondent court has no jurisdiction to entertain Mariwasa's appeal from the BOI's decision in BOI Case No. 92-005, which has become final.chanroblesvirtualawlibrarychanrobles virtual law library

II. The appellate jurisdiction conferred by statute upon this Honorable Court cannot be amended or superseded by Circu-lar No. 1-91. 2chanrobles virtual law library

Petitioner then concludes that:

III. Mariwasa has lost it right to appeal . . . in this case. 3chan-robles virtual law library

Petitioner argues that the Judiciary Reorganization Act of 1980 or Batas Pambansa Bilang 129 and Circular 1-91, "Prescribing the Rules Governing Appeals to the Court of Appeals from a Final Order or Decision of the Court of Tax Appeals and Quasi-Judicial Agencies" cannot be the basis of Mariwasa's appeal to respondent court because the procedure for appeal laid down therein runs contrary to Article 82 of E.O. 226, which provides that appeals from decisions or orders of the BOI shall be filed directly with this Court, to wit:

Judicial relief. - All orders or decisions of the Board (of Investments) in cases involving the provisions of this Code shall immediately be executory. No appeal from the order or decision of the Board by the party adversely affected shall stay such an order or decision; Provided, that all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision.

On the other hand, Mariwasa maintains that whatever "obvi-ous inconsistency" or "irreconcilable repugnancy" there may have been between B.P. 129 and Article 82 of E.O. 226 on the question of venue for appeal has already been resolved by Circular 1-91 of the Supreme Court, which was promulgated on February 27, 1991 or four (4) years after E.O. 226 was en-acted.chanroblesvirtualawlibrarychanrobles virtual law library

Sections 1, 2 and 3 of Circular 1-91, is herein quoted below:

1. Scope. - These rules shall apply to appeals from final orders or decisions of the Court of Tax Appeals. They shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now allowed by statute to the Court of Appeals or the Supreme Court. Among these agen-cies are the Securities and Exchange Commission, Land Reg-istration Authority, Social Security Commission, Civil Aeronau-tics Board, Bureau of Patents, Trademarks and Technology

Transfer, National Electrification Administration, Energy Regu-latory Board, National Telecommunications Commission, Sec-retary of Agrarian Reform and Special Agrarian Courts under RA 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, In-surance Commission and Philippine Atomic Energy Commis-sion.chanroblesvirtualawlibrarychanrobles virtual law library

2. Cases not covered. - These rules shall not apply to deci-sions and interlocutory orders of the National Labor Relations Commission or the Secretary of Labor and Employment under the Labor Code of the Philippines, the Central Board of As-sessment Appeals, and other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute.chanroblesvirtualawlibrarychanrobles virtual law li-brary

3. Who may appeal and where to appeal. - The appeal of a party affected by a final order, decision, or judgment of the Court of Tax Appeals or of a quasi-judicial agency shall be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves ques-tions of fact or of law or mixed questions of fact and law. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to the Supreme Court as provided in Rule 45 of the Rules of Court.

It may be called that Section 9(3) of B.P. 129 vests appellate jurisdiction over all final judgments, decisions, resolutions, or-ders or awards of quasi-judicial agencies on the Court of Ap-peals, to wit:

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commis-

sions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.chanroblesvirtualawli-brarychanrobles virtual law library

The Intermediate Appellate Court shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, in-cluding the power to grant and conduct new trials or further proceedings.chanroblesvirtualawlibrarychanrobles virtual law library

These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals.

Clearly evident in the aforequoted provision of B.P. 129 is the laudable objective of providing a uniform procedure of appeal from decisions of all quasi-judicial agencies for the benefit of the bench and the bar. Equally laudable is the twin objective of B.P. 129 of unclogging the docket of this Court to enable it to attend to more important tasks, which in the words of Dean Vicente G. Sinco, as quoted in our decision in Conde v. Inter-mediate Appellate Court 4is "less concerned with the decisions of cases that begin and end with the transient rights and obli-gations of particular individuals but is more intertwined with the direction of national policies, momentous economic and social problems, the delimitation of governmental authority and its impact upon fundamental rights.chanroblesvirtualawli-brarychanrobles virtual law library

In Development Bank of the Philippines vs. Court of Appeals, 5this Court noted that B.P. 129 did not deal only with "changes

in the rules on procedures" and that not only was the Court of Appeals reorganized, but its jurisdiction and powers were also broadened by Section 9 thereof. Explaining the changes, this Court said:

. . . Its original jurisdiction to issue writs of mandamus, prohi-bition, certiorari and habeas corpus, which theretofore could be exercised only in aid of its appellate jurisdiction, was ex-panded by (1) extending it so as to include the writ of quo warranto, and also (2) empowering it to issue all said extraor-dinary writs "whether or not in aid of its appellate jurisdic-tion." Its appellate jurisdiction was also extended to cover not only final judgments of Regional Trial Courts, but also "all final judgments, decisions, resolutions, orders or awards of . . . quasi-judicial agencies, instrumentalities, boards or commis-sions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of sub-paragraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948," it being noteworthy in this connection that the text of the law is broad and compre-hensive, and the explicitly stated exceptions have no refer-ence whatever to the Court of Tax Appeals. Indeed, the inten-tion to expand the original and appellate jurisdiction of the Court of Appeals over quasi-judicial agencies, instrumentali-ties, boards, or commissions, is further stressed by the last paragraph of Section 9 which excludes from its provisions, only the "decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of As-sessment Appeals." 6chanrobles virtual law library

However, it cannot be denied that the lawmaking system of the country is far from perfect. During the transitional period after the country emerged from the Marcos regime, the law-making power was lodged on the Executive Department. The obvious lack of deliberation in the drafting of our laws could perhaps explain the deviation of some of our laws from the

goal of uniform procedure which B.P. 129 sought to pro-mote.chanroblesvirtualawlibrarychanrobles virtual law library

In exempli gratia, Executive Order No. 226 or the Omnibus In-vestments Code of 1987 provides that all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision.chanroblesvirtualawli-brarychanrobles virtual law library

Noteworthy is the fact that presently, the Supreme Court en-tertains ordinary appeals only from decisions of the Regional Trial Courts in criminal cases where the penalty imposed is re-clusion perpetua or higher. Judgments of regional trial courts may be appealed to the Supreme Court only by petition for re-view on certiorari within fifteen (15) days from notice of judg-ment in accordance with Rule 45 of the Rules of Court in rela-tion to Section 17 of the Judiciary Act of 1948, as amended, this being the clear intendment of the provision of the Interim Rules that "(a)ppeals to the Supreme Court shall be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court." Thus, the right of appeal provided in E.O. 226 within thirty (30) days from receipt of the order or deci-sion is clearly not in consonance with the present procedure before this Court. Only decisions, orders or rulings of a Consti-tutional Commission (Civil Service Commission, Commission on Elections or Commission on Audit), may be brought to the Supreme Court on original petitions for certiorari under Rule 65 by the aggrieved party within thirty (30) days form receipt of a copy thereof. 7chanrobles virtual law library

Under this contextual backdrop, this Court, pursuant to its Constitutional power under Section 5(5), Article VIII of the 1987 Constitution to promulgate rules concerning pleading, practice and procedure in all courts, and by way of implemen-tation of B.P. 129, issued Circular 1-91 prescribing the rules governing appeals to the Court of Appeals from final orders or

decisions of the Court of Tax Appeals and quasi-judicial agen-cies to eliminate unnecessary contradictions and confusing rules of procedure.chanroblesvirtualawlibrarychanrobles vir-tual law library

Contrary to petitioner's contention, although a circular is not strictly a statute or law, it has, however, the force and effect of law according to settled jurisprudence. 8In Inciong v. de Guia, 9a circular of this Court was treated as law. In adopting the recommendation of the Investigating Judge to impose a sanction on a judge who violated Circular No. 7 of this Court dated September 23, 1974, as amended by Circular No. 3 dated April 24, 1975 and Circular No. 20 dated October 4, 1979, re-quiring raffling of cases, this Court quoted the ratiocination of the Investigating Judge, brushing aside the contention of re-spondent judge that assigning cases instead of raffling is a common practice and holding that respondent could not go against the circular of this Court until it is repealed or other-wise modified, as "(L)aws are repealed only by subsequent ones, and their violation or non-observance shall not be ex-cused by disuse, or customs or practice to the contrary." 10chanrobles virtual law library

The argument that Article 82 of E.O. 226 cannot be validly re-pealed by Circular 1-91 because the former grants a substan-tive right which, under the Constitution cannot be modified, diminished or increased by this Court in the exercise of its rule-making powers is not entirely defensible as it seems. Re-spondent correctly argued that Article 82 of E.O. 226 grants the right of appeal from decisions or final orders of the BOI and in granting such right, it also provided where and in what manner such appeal can be brought. These latter portions simply deal with procedural aspects which this Court has the power to regulate by virtue of its constitutional rule-making powers.chanroblesvirtualawlibrarychanrobles virtual law li-brary

The case of Bustos v. Lucero 11distinguished between rights created by a substantive law and those arising from proce-dural law:

Substantive law creates substantive rights . . . . Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal re-lations (60 C.J., 980). Substantive law is that part of the law which creates, defines and regulates rights, or which regu-lates rights and duties which give rise to a cause of action, as oppossed to adjective or remedial law, which prescribes the method of enforcing rights or obtains a redress for their inva-sion. 12chanrobles virtual law library

Indeed, the question of where and in what manner appeals from decisions of the BOI should be brought pertains only to procedure or the method of enforcing the substantive right to appeal granted by E.O. 226. In other words, the right to ap-peal from decisions or final orders of the BOI under E.O. 226 remains and continues to be respected. Circular 1-91 simply transferred the venue of appeals from decisions of this agency to respondent Court of Appeals and provided a differ-ent period of appeal, i.e., fifteen (15) days from notice. It did not make an incursion into the substantive right to ap-peal.chanroblesvirtualawlibrarychanrobles virtual law library

The fact that BOI is not expressly included in the list of quasi-judicial agencies found in the third sentence of Section 1 of Circular 1-91 does not mean that said circular does not apply to appeals from final orders or decision of the BOI. The second sentence of Section 1 thereof expressly states that "(T)hey shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now al-lowed by statute to the Court of Appeals or the Supreme Court." E.O. 266 is one such statute. Besides, the enumera-tion is preceded by the words "(A)mong these agencies

are . . . ," strongly implying that there are other quasi-judicial agencies which are covered by the Circular but which have not been expressly listed therein. More importantly, BOI does not fall within the purview of the exclusions listed in Section 2 of the circular. Only the following final decisions and interlocu-tory orders are expressly excluded from the circular, namely, those of: (1) the National Labor Relations Commission; (2) the Secretary of Labor and Employment; (3) the Central Board of Assessment Appeals and (4) other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute. Since in DBP v. CA 13we upheld the appellate jurisdic-tion of the Court of Appeals over the Court of Tax Appeals de-spite the fact that the same is not among the agencies reor-ganized by B.P. 129, on the ground that B.P. 129 is broad and comprehensive, there is no reason why BOI should be ex-cluded from Circular 1-91, which is but implementary of said law.chanrob-lesvirtualawlibrarychanrobles virtual law library

Clearly, Circular 1-91 effectively repealed or superseded Arti-cle 82 of E.O. 226 insofar as the manner and method of en-forcing the right to appeal from decisions of the BOI are con-cerned. Appeals from decisions of the BOI, which by statute was previously allowed to be filed directly with the Supreme Court, should now be brought to the Court of Appeals.chan-roblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, in view of the foregoing reasons, the instant pe-tition for certiorari and prohibition with application for tempo-rary restraining order and preliminary injunction is hereby DISMISSED for lack of merit. The Temporary Restraining Order issued on July 19, 1993 is hereby LIFTED.chanroblesvirtu-alawlibrarychanrobles virtual law library

SO ORDERED.

SARAH P. AMPONG v. CSC [G.R. NO. 167916 : August 26, 2008]

CAN the Civil Service Commission (CSC) properly assume ju-risdiction over administrative proceedings against a judicial employee involving acts of dishonesty as a teacher, commit-ted prior to her appointment to the judiciary?cra lawlibrary

Before Us is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals (CA) affirming the CSC's ex-ercise of administrative jurisdiction over petitioner.

The Facts

The following facts are uncontroverted:

On November 10, 1991, a Professional Board Examination for Teachers (PBET)2 was held in Davao City. A certain Evelyn Ju-nio-Decir3 applied for and took the examination at Room 16, Kapitan Tomas Monteverde Elementary School. She passed with a rating of 74.27%.4

At the time of the PBET examinations, petitioner Sarah P. Am-pong (nee Navarra) and Decir were public school teachers un-der the supervision of the Department of Education, Culture and Sports (DECS).5 Later, on August 3, 1993, Ampong trans-ferred to the Regional Trial Court (RTC) in Alabel, Sarangani Province, where she was appointed as Court Interpreter III.

On July 5, 1994, a woman representing herself as Evelyn Decir went to the Civil Service Regional Office (CSRO) No. XI, Davao City, to claim a copy of her PBET Certificate of Eligibility. Dur-ing the course of the transaction, the CSRO personnel noticed that the woman did not resemble the picture of the examinee in the Picture Seat Plan (PSP). Upon further probing, it was confirmed that the person claiming the eligibility was different

from the one who took the examinations. It was petitioner Ampong who took and passed the examinations under the name Evelyn Decir.

The CSRO conducted a preliminary investigation and deter-mined the existence of a prima facie case against Decir and Ampong for Dishonesty, Grave Misconduct and Conduct Preju-dicial to the Best Interest of the Service. On August 23, 1994, they were formally charged and required to file answers un-der oath. The formal charge reads:

That sometime before the conduct of the November 10, 1991 Professional Board Examination for Teachers (PBET), a certain Ms. Evelyn B. Junio (now Decir) took the said examination at Rm. 16 Kapitan Tomas Monteverde Elementary School, Davao City, with a passing rate of 74.27%; That on July 5, 1994 she appeared before the CSC Region XI Office to get her Guro Cer-tificate; That upon verification, it was found out that the pic-ture attached in the Picture Seat Plan, marked as Annex "A" and "A-1," respectively, were not the same compared to the picture attached in the CSC Form 212 of Evelyn Junio-Decir marked herein as annex "B," "B-1," respectively. There was also a marked difference in the signatures affixed in the said annexes; That further investigations revealed that it was the pictures of Ms. Sarah Navarra, wife of her husband's first cousin, who took the said examination in behalf of Ms. Evelyn Junio-Decir, a provisional teacher; That the said act of Mes-dames Decir and Navarra are acts of dishonesty and conduct prejudicial to the best interest of the service; that in (sic) tak-ing the CS examination for and in behalf of another under-mines the sanctity of the CS examinations; All these contrary to existing civil service laws and regulations. (Emphasis sup-plied)cralawlibrary

In her sworn statement dated November 3, 1994, Decir de-nied the charges against her. She reasoned out that it must have been the examination proctor who pasted the wrong pic-ture on the PSP and that her signatures were different be-

cause she was still signing her maiden name at the time of the examination. In her Answer, Decir contended that:

2. The same accusation is denied, the truth being:

A. When I took the Professional Board Examination for Teach-ers (PBET) in the year 1991, I handed my 1x1 I.D. picture to the proctor assigned in the examination room who might have inadvertently pasted in the Seat Plan [the] wrong picture in-stead [of] my own picture;

b. With respect to the marked difference in my signature both appearing in the aforesaid Seat Plan and also with the Form 212, the disparity lies in that in the year 1991, when I took the afroresaid examination, I was still sporting my maiden name Evelyn B. Junio in order to coincide with all my pertinent supporting papers, like the special order (s.o.), appointment and among others, purposely to take said communications. However, immediately after taking the PBET Examination in 1991, I started using the full name of Evelyn Junio-Decir.6

Even before filing an Answer, petitioner Ampong voluntarily appeared at the CSRO on February 2, 1995 and admitted to the wrongdoing. When reminded that she may avail herself of the services of counsel, petitioner voluntarily waived said right.

On March 13, 1995, petitioner gave another admission in the following tenor:

Q:     Now, what is then your intention in coming to this Region inasmuch as you are still intending to file an answer to the formal charge?cra lawlibrary

A:     I came here because I want to admit personally. So that I will not be coming here anymore. I will submit my case for Resolution.

Q:     So, you intend to waive your right for the formal hearing and you also admit orally on the guilt of the charge on the Formal Charge dated August 24, 1994?cra lawlibrary

A:     Yes, Ma'am.

Q:     What else do you want to tell the Commission?cra lawli-brary

A:     x x x Inasmuch as I am already remorseful, I am repent-ing of the wrong that I have done. I am hoping that the Com-mission can help x x x so that I will be given or granted an-other chance to serve the government.

x    x    x

Q:     Now inasmuch as you have declared that you have ad-mitted the guilt that you took the examination for and in be-half of Evelyn Junio Decir, are you telling this to the Commis-sion without the assistance of the counsel or waiver of your right to be assisted by counsel.

A:     Yes, Ma'am. I am waiving my right.7 (Emphasis sup-plied)cralawlibrary

Petitioner reiterated her admission in her sworn Answer dated March 16, 1995:

3. That, during the commission of the act, I was still under the Department of Education, Culture and Sports, as Teacher in-charge of San Miguel Primary School, Malungon North District, way back in 1991, when the husband of Evelyn Junio-Decir, my husband's cousin came to me and persuaded me to take the examination in behalf of his wife to which I disagreed but he earnestly begged so that I was convinced to agree be-cause I pity his wife considering that she is an immediate rela-tive, and there was no monetary consideration involved in this

neither a compensatory reward for me, as I was overcome by their persuasion;

4. That, despite the fact that I was a teacher, I was not aware that the acts I was charged, is a ground for disciplinary action and punishable by dismissal;

5. That I should not have conformed to this anomalous trans-action considering that I was born in a Christian family, and was brought up in the fear of Lord, and had been a consistent officer of the Church Board, had been a religious leader for so many years, and had been the organizer of the Music Festival of the Association of Evangelical Churches of Malungon, Sarangani Province, thus I was devoted to church work and was known to be of good conduct; and that my friends and ac-quaintances can vouch to that, but I was just forced by cir-cumstances to agree to the spouses Godfre and Evelyn Decir.8

(Emphasis added)

CSC Finding and Penalty

On March 21, 1996, the CSC found petitioner Ampong and De-cir guilty of dishonesty, dismissing them from the service. The dispositive part of the CSC resolution states:

WHEREFORE, the Commission hereby finds Evelyn J. Decir and Sarah P. Navarra guilty of Dishonesty. Accordingly, they are meted the penalty of dismissal with all its accessory penalties. The PBET rating of Decir is revoked.9

Petitioner moved for reconsideration, raising for the first time the issue of jurisdiction.10 She argued that the exclusive au-thority to discipline employees of the judiciary lies with the Supreme Court; that the CSC acted with abuse of discretion when it continued to exercise jurisdiction despite her assump-tion of duty as a judicial employee. She contended that at the time the case was instituted on August 23, 1994, the CSC al-ready lost jurisdiction over her. She was appointed as Inter-

preter III of the RTC, Branch 38, Alabel, Sarangani Province on August 3, 1993.

The CSC denied the motion for reconsideration.11 According to the Commission, to allow petitioner to evade administrative li-ability would be a mockery of the country's administrative dis-ciplinary system. It will open the floodgates for others to es-cape prosecution by the mere expedient of joining another branch of government. In upholding its jurisdiction over peti-tioner, the CSC differentiated between administrative supervi-sion exercised by the Supreme Court and administrative juris-diction granted to the Commission over all civil service em-ployees:

Moreover, it must be pointed out that administrative supervi-sion is distinct from administrative jurisdiction. While it is true that this Commission does not have administrative supervi-sion over employees in the judiciary, it definitely has concur-rent jurisdiction over them. Such jurisdiction was conferred upon the Civil Service Commission pursuant to existing law specifically Section 12(11), Chapter 3, Book V of the Adminis-trative Code of 1987 (Executive Order No. 292) which pro-vides as follows:

"(11) Hear and decide administrative cases instituted by or through it directly or on appeal, including contested appoint-ment, and review decisions and actions of its offices and of the agencies attached to it x x x."

The fact that court personnel are under the administrative su-pervision of the Supreme Court does not totally isolate them from the operations of the Civil Service Law. Appointments of all officials and employees in the judiciary is governed by the Civil Service Law (Section 5(6), Article VIII, 1987 Constitution). (Emphasis supplied)cralawlibrary

CA Disposition

Via Petition for Review under Rule 43, petitioner elevated the matter to the CA.12 She insisted that as a judicial employee, it is the Supreme Court and not the CSC that has disciplinary ju-risdiction over her.

In a Decision dated November 30, 2004,13 the CA denied the petition for lack of merit.

The CA noted that petitioner never raised the issue of jurisdic-tion until after the CSC ruled against her. Rather, she willingly appeared before the commission, freely admitted her wrong-doing, and even requested for clemency. Thus, she was estopped from questioning the Commission's jurisdiction. The appellate court opined that while lack of jurisdiction may be assailed at any stage, a party's active participation in the pro-ceedings before a court, tribunal or body will estop such party from assailing its jurisdiction.

The CA further ruled that a member of the judiciary may be under the jurisdiction of two different bodies. As a public school teacher or a court interpreter, petitioner was part of the civil service, subject to its rules and regulations. When she committed acts in violation of the Civil Service Law, the CSC was clothed with administrative jurisdiction over her.

Issue

Petitioner, through this petition, assigns the lone error that:

The Honorable Court of Appeals-First Division decided a ques-tion of substance in a way not in accord with law and jurispru-dence, gravely erred in facts and in law, and has sanctioned such departure and grave error because it ignored or was not aware of Garcia v. De la Peña, 229 SCRA 766 (1994) and Adm. Matter No. OCA I.P.I. 97-329-P (CSC v. Ampong) dated January 31, 2001, which reiterate the rule that exclusive au-thority to discipline employees of the judiciary lies with the Supreme Court, in issuing the questioned decision and resolu-

tion; which grave error warrant reversal of the questioned de-cision and resolution.14

Put simply, the issue boils down to whether the CSC has ad-ministrative jurisdiction over an employee of the Judiciary for acts committed while said employee was still with the Execu-tive or Education Department.

Our Ruling

The answer to the question at the outset is in the negative but We rule against the petition on the ground of estoppel.

It is true that the CSC has administrative jurisdiction over the civil service. As defined under the Constitution and the Admin-istrative Code, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, and government-owned or controlled corporations.15 Pursuant to its administrative authority, the CSC is granted the power to "control, supervise, and coordinate the Civil Service exami-nations."16 This authority grants to the CSC the right to take cognizance of any irregularity or anomaly connected with the examinations.17

However, the Constitution provides that the Supreme Court is given exclusive administrative supervision over all courts and judicial personnel.18 By virtue of this power, it is only the Supreme Court that can oversee the judges' and court person-nel's compliance with all laws, rules and regulations. It may take the proper administrative action against them if they commit any violation. No other branch of government may in-trude into this power, without running afoul of the doctrine of separation of powers.19 Thus, this Court ruled that the Om-budsman cannot justify its investigation of a judge on the powers granted to it by the Constitution. It violates the spe-cific mandate of the Constitution granting to the Supreme Court supervisory powers over all courts and their personnel; it undermines the independence of the judiciary.20

In Civil Service Commission v. Sta. Ana,21 this Court held that impersonating an examinee of a civil service examination is an act of dishonesty. But because the offender involved a ju-dicial employee under the administrative supervision of the Supreme Court, the CSC filed the necessary charges before the Office of the Court Administrator (OCA), a procedure which this Court validated.

A similar fate befell judicial personnel in Bartolata v. Julaton,22

involving judicial employees who also impersonated civil ser-vice examinees. As in Sta. Ana, the CSC likewise filed the nec-essary charges before the OCA because respondents were ju-dicial employees. Finding respondents guilty of dishonesty and meting the penalty of dismissal, this Court held that "re-spondents' machinations reflect their dishonesty and lack of integrity, rendering them unfit to maintain their positions as public servants and employees of the judiciary."23

Compared to Sta. Ana and Bartolata, the present case in-volves a similar violation of the Civil Service Law by a judicial employee. But this case is slightly different in that petitioner committed the offense before her appointment to the judicial branch. At the time of commission, petitioner was a public school teacher under the administrative supervision of the DECS and, in taking the civil service examinations, under the CSC. Petitioner surreptitiously took the CSC-supervised PBET exam in place of another person. When she did that, she be-came a party to cheating or dishonesty in a civil service-su-pervised examination.

That she committed the dishonest act before she joined the RTC does not take her case out of the administrative reach of the Supreme Court.

The bottom line is administrative jurisdiction over a court em-ployee belongs to the Supreme Court, regardless of whether the offense was committed before or after employment in the judiciary.

Indeed, the standard procedure is for the CSC to bring its complaint against a judicial employee before the OCA. Records show that the CSC did not adhere to this procedure in the present case.

However, We are constrained to uphold the ruling of the CSC based on the principle of estoppel. The previous actions of pe-titioner have estopped her from attacking the jurisdiction of the CSC. A party who has affirmed and invoked the jurisdic-tion of a court or tribunal exercising quasi-judicial functions to secure an affirmative relief may not afterwards deny that same jurisdiction to escape a penalty.24 As this Court declared in Aquino v. Court of Appeals:25

In the interest of sound administration of justice, such prac-tice cannot be tolerated. If we are to sanction this argument, then all the proceedings had before the lower court and the Court of Appeals while valid in all other respects would simply become useless.26

Under the principle of estoppel, a party may not be permitted to adopt a different theory on appeal to impugn the court's ju-risdiction.27 In Emin v. De Leon,28 this Court sustained the ex-ercise of jurisdiction by the CSC, while recognizing at the same time that original disciplinary jurisdiction over public school teachers belongs to the appropriate committee created for the purpose as provided for under the Magna Carta for Public School Teachers.29 It was there held that a party who fully participated in the proceedings before the CSC and was accorded due process is estopped from subsequently attack-ing its jurisdiction.

Petitioner was given ample opportunity to present her side and adduce evidence in her defense before the CSC. She filed with it her answer to the charges leveled against her. When the CSC found her guilty, she moved for a reconsideration of the ruling. These circumstances all too clearly show that due process was accorded to petitioner.

Petitioner's admission of guilt stands. Apart from her full par-ticipation in the proceedings before the CSC, petitioner admit-ted to the offense charged - that she impersonated Decir and took the PBET exam in the latter's place. We note that even before petitioner filed a written answer, she voluntarily went to the CSC Regional Office and admitted to the charges against her. In the same breath, she waived her right to the assistance of counsel. Her admission, among others, led the CSC to find her guilty of dishonesty, meting out to her the penalty of dismissal.

Now, she assails said confession, arguing that it was given without aid of counsel. In police custodial investigations, the assistance of counsel is necessary in order for an extra-judi-cial confession to be made admissible in evidence against the accused in a criminal complaint. If assistance was waived, the waiver should have been made with the assistance of coun-sel.30

But while a party's right to the assistance of counsel is sacred in proceedings criminal in nature, there is no such require-ment in administrative proceedings. In Lumiqued v. Exevea,31

this Court ruled that a party in an administrative inquiry may or may not be assisted by counsel. Moreover, the administra-tive body is under no duty to provide the person with counsel because assistance of counsel is not an absolute require-ment.32

Petitioner's admission was given freely. There was no compul-sion, threat or intimidation. As found by the CSC, petitioner's admission was substantial enough to support a finding of guilt.

The CSC found petitioner guilty of dishonesty. It is categorized as "an act which includes the procurement and/or use of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or procurement of the same, cheat-ing, collusion, impersonation, or any other anomalous act

which amounts to any violation of the Civil Service examina-tion."33 Petitioner impersonated Decir in the PBET exam, to ensure that the latter would obtain a passing mark. By inten-tionally practicing a deception to secure a passing mark, their acts undeniably involve dishonesty.34

This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of in-tegrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray."35 Petitioner's dishonest act as a civil ser-vant renders her unfit to be a judicial employee. Indeed, We take note that petitioner should not have been appointed as a judicial employee had this Court been made aware of the cheating that she committed in the civil service examinations. Be that as it may, petitioner's present status as a judicial em-ployee is not a hindrance to her getting the penalty she de-serves.

The conduct and behavior of everyone connected with an of-fice charged with the dispensation of justice is circumscribed with a heavy burden or responsibility. The image of a court, as a true temple of justice, is mirrored in the conduct, official or otherwise, of the men and women who work thereat, from the judge to the least and lowest of its personnel.36 As the Court held in another administrative case for dishonesty:

x x x Any act which diminishes or tends to diminish the faith of the people in the judiciary shall not be countenanced. We have not hesitated to impose the utmost penalty of dismissal for even the slightest breach of duty by, and the slightest ir-regularity in the conduct of, said officers and employees, if so warranted. Such breach and irregularity detract from the dig-nity of the highest court of the land and erode the faith of the people in the judiciary.

x    x    x

As a final point, we take this opportunity to emphasize that no quibbling, much less hesitation or circumvention, on the part of any employee to follow and conform to the rules and regu-lations enunciated by this Court and the Commission on Civil Service, should be tolerated. The Court, therefore, will not hesitate to rid its ranks of undesirables who undermine its ef-forts toward an effective and efficient system of justice.37

(Emphasis added)

We will not tolerate dishonesty for the Judiciary expects the best from all its employees.38 Hindi namin papayagan ang pandaraya sapagkat inaasahan ng Hudikatura ang pinakam-abuti sa lahat nitong kawani.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.