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Date:  Monday, 30 May 2011 06:13

It has been said that ours is a country of laws and not of men. We are governed by fixed procedures, principles, rules and laws, which have canalized our system. Those laws forbid us from being swayed away to either tyranny or anarchism. We are engulfed in and out with laws, which permeates every individuals from “womb to tomb” and from “lust to dust.” This makes the legal system in the Philippines pervasive in all its ways.

Despite street outcries and public opinions to the contrary, laws shall be upheld “Dura lex Sid Lex” (the law may be harsh, but that’s the law). This should take precedence in the passing of every resolution or decision by the courts, tribunals and quasi-judicial agencies of the government. Being the protectors of rights and defenders of truth, the Office of the Ombudsman is not spared from strictly following those fixed procedures, rules and principles of laws.

It is a declared policy that “the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” With this pursuit, the state instilled in every Filipino’s mind that “public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, efficiency, act with patriotism and justice and lead modest lives.[1]” It is with this concern that the Office of the Ombudsman was crafted.

The Office of the Ombudsman is vested with “full administrative disciplinary authority” including the power to “determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose the said penalty.[2]” It was said that such provision covers the entire gamut of administrative adjudication.

It is, in fact, so powerful that it is not only vested with an investigative and adjudicatory power, but can likewise, create its own rules to follow. That awesome power has legal backings from the 1987 Constitution, which specifically stressed that it can “promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.[3]

With the enactment of RA 6770, otherwise known as the “Ombudsman Act of 1989”, that rule-making power of the Ombudsman was further highlighted as it underscored that “the Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or performance of its powers, functions, and duties” and that “the rules of procedure shall include a provision whereby the Rules of Court are made suppletory.[4]

Thus, the Office of the Ombudsman must and should act according to that mandate conferred upon it by the highest tribunal being the protector and “activist watchman” of the people. With that, “it shall act promptly on complaints filed in any form or manner against officers or employees of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.[5]

For emphasis, one must understand that unlike any other administrative tribunals, the Office of the Ombudsman can act on complaints in ANY form or manner and can enforce administrative, civil and criminal liability. The unprecedented power of the Office of the Ombudsman is displayed not only in its finding of probable cause but also in the implementation of its decisions.

Take for example in the Ombudsman’s Rules of Procedures, it provided that the filing of a motion for reconsideration/reinvestigation shall NOT BAR the filing of the corresponding information in Court on the basis of the finding of probable cause in the resolution subject of the motion.[6]” And, what is more disheartening is the fact that and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be FINAL, EXECUTORY and UNAPPEALABLE.

In all other cases, however, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration. But, an appeal shall NOT STOP the decision from being executory[7].

The wisdom of this seemingly harsh provision in the Ombudsman Rules was challenged several times in the Supreme Court.

On May 2, 2006, the Supreme Court in the Laja case ruled that “the order imposing the penalty of dismissal from the service of the respondent is NOT immediately executory. An appeal timely filed will STAY the immediate implementation of the decision.[8]

But on April 12, 2007, the Supreme Court in the Buencameno case seemingly retracted from its previous ruling where it ruled that:

“An appeal shall NOT STOP the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.[9]

The Supreme Court fortified this Decision in the May 7, 2008 case “Ombudsman vs. Court of Appeals” as it held for the executability of the Ombudsman Decisions pending appeal. In elucidating this doctrine, it held:

“More recently, in the 2007 case of Buencamino v. Court of Appeals, the primary issue was whether the decision of the Ombudsman suspending petitioner therein from office for six months without pay was immediately executory even pending appeal in the Court of Appeals. The Court held that the pertinent ruling in Lapid v. Court of Appeals has already been superseded by the case of ‘In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, which clearly held that decisions of the Ombudsman are immediately executory even pending appeal. Based on the foregoing, we hold that the Ombudsman’s order imposing the penalty of dismissal on Dr. Macabulos was IMMEDIATELY EXECUTORY EVEN PENDING APPEAL in the Court of Appeals.[10](Emphasis Supplied)

Surprisingly, barely four (4) months after or in 11 September 2008, the Supreme Court En Banc reverted back to the Laja case and through Justice Corona it ruled:

“In the interest of justice and practicality, we will rule on the propriety of the issuance of the injunctive writ.

The applicable provision of law is Section 7, Rule III of the Rules of Procedure of the Ombudsman, as amended:

Section 7. Finality and execution of decision. – xxx where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals xxx.

An appeal shall not stop the decision from being executory. xxx.

A literal reading of this rule shows that the mere filing of an appeal does not prevent the decision of the Ombudsman from becoming executory. However, we clarified this rule in Office of the Ombudsman v. Laja:

[O]nly orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary shall be final and unappealable hence, immediately executory. In all other disciplinary cases where the penalty imposed is other than public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, the law gives the respondent the right to appeal. In these cases, the order, directive or decision becomes final and executory only after the lapse of the period to appeal if no appeal is perfected, or after the denial of the appeal from the said order, directive or decision. It is only then that execution shall perforce issue as a matter of right. The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the STAY of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.” (Emphasis in the original)

The penalty meted out to respondent was suspension for one year without pay. He filed an appeal of the Ombudsman’s joint decision on time. In his appeal, he included a prayer for the issuance of a writ of preliminary injunction in order to stay the execution of the decision against him. Following Office of the Ombudsman v. Laja, we hold that the mere filing by respondent of an appeal sufficed to stay the execution of the joint decision against him. Respondent’s prayer for the issuance of a writ of preliminary injunction (for purposes of staying the execution of the decision against him) was therefore a superfluity. The execution of petitioner’s joint decision against respondent should be stayed during the pendency of CA-G.R. SP No. 89999.[11] (Emphasis supplied)

Following the principle in Statutory Construction, “Inclusion unius est exclusio alterus”- the express mention of the things included excludes those that are not included, it would seem that if the punishment is public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, the Ombudsman decision is UNAPPEALABLE, thus, EXECUTORY. And, other than those enumerated penalties, the losing respondent still has option to file an appeal to stay the execution of judgment and that prayer for the issuance of a writ of preliminary injunction is no longer needed, it being mere a superfluity.

But the wisdom of this recent En Banc Decision is still challenged as it is still subjected to a Motion for Reconsideration. The Supreme Court, in fact, has not yet come up with its authoritative conclusion as of this writing. Therefore, this Samaniego case is not yet final and executory as with regards to the issue of executability of the Ombudsman Decisions are concern.

What is standing and binding at present is still the doctrine espoused in the Buencamino case, which upheld that the Ombudsman Decisions are executory pending appeal.

Therefore, in order to stay execution of judgment of the Ombudsman Decision, the losing respondent must first file an appeal within the 15-day reglementary period based on Rule 43 of the Rules of Court and then pray for the issuance of a Writ of Preliminary Injunction. Without which, no amount of public outcries, street demonstrations or even hostage drama that could prevent its Decision from being implemented, even pending appeal. This makes the power of the Office of the Ombudsman awesome.

There may be great and far-fetched differences in the application of principles, procedures and laws among the various administrative tribunals such as the PLEB, Office of the Ombudsman, NAPOLCOM, Civil Service Commission and other PNP Disciplinary Authorities, but they still shared the same view that their altruistic existence is not meant to demean the lives of the hapless governments officials, but to see to it that they are enhanced and trimmed down towards a realization that “Public officers and employees must at all times be accountable to the people.”

[1] Section 2, R.A. 6770 ("The Ombudsman Act of 1989")

[2] En Banc, OFFICE OF THE OMBUDSMAN, Petitioner, versus COURT OF APPEALS and LOREÑA L. SANTOS, Respondents., [G.R. No. 167844], Nov 22, 2006)

[3] Sec. 13(8), Art. 13 of the 1987 Constitution.

[4] Section 18 (1,2), R.A. 6770 ("The Ombudsman Act of 1989")

[5] Section 13 ibid

[6] Section 7 (b), Rule II, Ombudsman Administrative Order No. 07 (As amended by Administrative Order No. 15, dated February 16, 2000)

[7] Section 7, Rule III, Ombudsman Administrative Order No. 07

[8] 1st Division, OFFICE OF THE OMBUDSMAN, Petitioner, versus PENDATUN G. LAJA and the COURT OF APPEALS, Respondents. [G.R. No. 169241], May 2,2006)

[9] 1st Division, EDMUNDO JOSE T. BUENCAMINO, Petitioner, versus HON. COURT OF APPEALS, OFFICE OF THE OMBUDSMAN, and CONSTANTINO PASCUAL, Respondents., [G.R. No. 175895,] Apr 12, 2007)

[10] 1st Division, OFFICE OF THE OMBUDSMAN, Petitioner, versus COURT OF APPEALS and DR. MERCEDITA J. MACABULOS, Respondents., [G.R. No. 159395], May 7, 2008)

[11] En Banc, OFFICE OF THE OMBUDSMAN, Petitioner, versus JOEL S. SAMANIEGO, Respondent., [G.R. No. 175573], Sep 11, 2008)

 

About the Author:

PSI ADRIEL B GRAN is a graduate of Mass Communication major in Journalism from the Pilgrim Christian College, Cagayan de Oro City. He finished his law studies at the Mindanao State University, Marawi City and passed the bar examination in 2008. He was a college professor prior to his appointment in the PNP in 1999. A loving husband of Janette J. Gran of Zamboanga City, Atty. Gran is a father of three boys all named “Adriel” following his stead.

Last Updated (Monday, 30 May 2011 07:12)