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Malone-Cervantes,M.,

Respicio,

L.,

Tuballa,

L.

1

G.R. No. L-29274 November 27, 1975

SEC. QUIRICO P. EVANGELISTA, in his capacity as Secretary of thePresidential Agency on Reforms and Government Operations, and thePRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS(PARGO), petitioner,

vs.HON. HILARION U. JARENCIO, as Presiding Judge, Court of First Instance ofManila, Branch XXIII, and FERNANDO MANALASTAS, Assistant City PublicService Officer of Manila, and ALL OTHER CITY OFFICIALS AND EMPLOYEESSIMILARLY SITUATED, respondents.1

MARTIN, J .:

This is an original action for certiorariand prohibition with preliminary injunction,

under Rule 65 of the Rules of Court, seeking to annul and set aside the order of

respondent Judge, the Honorable Hilarion J. Jarencio, Presiding Judge of the Court of

First Instance of Manila, dated July 1, 1968, in Civil Case No. 73305, entitled

"Fernando Manalastas vs. Sec. Ramon D. Bagatsing, etc.", which reads as follows:

IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the writ

of preliminary injunction prayed for by the petitioner [private respondent] be issued

restraining the respondents [petitioners], their agents, representatives, attorneys

and/or other persons acting in their behalf from further issuing subpoenas in

connection with the fact-finding investigations to the petitioner [private respondent]

and from instituting contempt proceedings against the petitioner [private respondent]

under Section 580 of the Revised Administrative Code. (Stress supplied).

Pursuant to his special powers and duties under Section 64 of the Revised

Administrative Code,1the President of the Philippines created the Presidential

Agency on Reforms and Government Operations (PARGO) under Executive OrderNo. 4 of January 7, 1966.2Purposedly, he charged the Agency with the following

functions and responsibilities:3

b. To investigate all activities involving or affecting immoral practices, graft and

corruptions, smuggling (physical or technical), lawlessness, subversion, and all other

activities which are prejudicial to the government and the public interests, and to

submit proper recommendations to the President of the Philippines.

1

Power to issue subpoena

c. To investigate cases of graft and corruption and violations of Republic Acts Nos.

1379 and 3019, and gather necessary evidence to establish prima facie, acts of

graft and acquisition of unlawfully amassed wealth ... .

h. To receive and evaluate, and to conduct fact-finding investigations of sworn

complaints against the acts, conduct or behavior of any public official or employee

and to file and prosecute the proper charges with the appropriate agency.

For a realistic performance of these functions, the President vested in the Agency

all the powers of an investigating committee under Sections 71 and 580 of the

Revised Administrative Code, including the power to summon witnesses by

subpoena or subpoena duces tecum, administer oaths, take testimony or evidence

relevant to the investigation.4

Whereupon, on June 7, 1968, petitioner Quirico Evangelista, as Undersecretary of

the Agency, issued to respondent Fernando Manalastas, then Acting City Public

Service Officer of Manila, a subpoena ad testificandumcommanding him "to be and

appear as witness at the Office of the PRESIDENTIAL AGENCY ON REFORMS

AND GOVERNMENT OPERATIONS ... then and there to declare and testify in acertain investigation pending therein."

Instead of obeying the subpoena, respondent Fernando Manalastas filed on June

25, 1968 with the Court of First Instance of Manila an Amended Petition for

prohibition, certiorariand/or injunction with preliminary injunction and/or restraining

order docketed as Civil Case No. 73305 and assailed its legality.

On July 1, 1968, respondent Judge issued the aforementioned Order:

IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the

writ of preliminary injunction prayed for by the petitioner [private respondent] be

issued restraining the respondents [petitioners], their agents, representatives,attorneys and/or other persons acting in their behalf from further issuing subpoenas

in connection with the fact-findinginvestigations to the petitioner [private

respondent] and from instituting contempt proceedings against the petitioner

[private respondent] under Section 530 of the Revised Administrative Code. (Stress

supplied).

Because of this, petitioners 5 elevated the matter direct to Us without a motion for

reconsideration first filed on the fundamental submission that the Order is a patent

nullity.6


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As unfurled, the dominant issue in this case is whether the Agency, acting thru its

officials, enjoys the authority to issue subpoenas in its conduct of fact-finding

investigations.

It has been essayed that the life blood of the administrative process is the flow of fact,

the gathering, the organization and the analysis of evidence. 7 Investigations are

useful for all administrative functions, not only for rule making, adjudication, andlicensing, but also for prosecuting, for supervising and directing, for determining

general policy, for recommending, legislation, and for purposes no more specific than

illuminating obscure areas to find out what if anything should be done. 8An

administrative agency may be authorized to make investigations, not only in

proceedings of a legislative or judicial nature, but also in proceedings whose sole

purpose is to obtain information upon which future action of a legislative or judicial

nature may be taken9and may require the attendance of witnesses in proceedingsof a purely investigatory nature. It may conduct general inquiries into evils calling for

correction, and to report findings to appropriate bodies and make recommendations

for actions. 10

We recognize that in the case before Us, petitioner Agency draws its subpoena power

from Executive Order No. 4, para. 5 which, in an effectuating mood, empowered it to

"summon witness, administer oaths, and take testimony relevant to the

investigation" 11with the authority "to require the production of documents under a

subpoenaduces tecumor otherwise, subject in all respects to the same restrictions

and qualifications as apply in judicial proceedings of a similar character." 12Such

subpoena power operates in extensoto all the functions of the Agency as laid out in

the aforequoted sub-paragraphs (b),(e), and (h). It is not bordered by nor is it merely

exercisable, as respondents would have it, in quasi-judicial or adjudicatory function

under sub-paragraph (b). The functions enumerated in all these sub-paragraphs (b),

(e), and (h) interlink or intertwine with one another with the principal aim of meeting

the very purpose of the creation of the Agency, which is to forestall and erodenefarious activities and anomalies in the civil service. To hold that the subpoena

power of the Agency is confined to mere quasi-judicial or adjudicatory functions would

therefore imperil or inactiviate the Agency in its investigatory functions under

sub-paragraphs (e) and (h). More than that, the enabling authority itself (Executive

Order No. 4, para. 5) fixes no distinction when and in what function should the

subpoena power be exercised. Similarly, We see no reason to depart from the

established rule that forbids differentiation when the law itself makes none.

Nor could We impress upon this subpoena power the alleged strictures of a subpoena

issued under the Rules of Court 13to abridge its application. The seeming proviso in

Section 580 of the Revised Administrative Code that the right to summon witnesses

and the authority to require the production of documents under a subpoena duces

tecumor otherwise shall be "subject in all respects to the same restrictions and

qualifications as apply in judicial proceedings of a similar character" cannot be

validly seized upon to require, in respondents' formulation, that, as in a subpoena

under the Rules, a specific case must be pending before a court for hearing or trial

and that the hearing or trial must be in connection with the exercise of the court's

judicial or adjudicatory functions 14before a non-judicial subpoena can be issued

by an administrative agency like petitioner Agency. It must be emphasized,

however, that an administrative subpoena differs in essencefrom a judicial

subpoena. Clearly, what the Rules speaks of is a judicial subpoena, one procurable

from and issuable by a competent court, and not an administrative subpoena. To

an extent, therefore, the "restrictions and qualifications" referred to in Section 580

of the Revised Administrative Code could mean the restraints against infringement

of constitutional rights or when the subpoena is unreasonable or oppressive and

when the relevancy of the books, documents or things does not appear. 15

Rightly, administrative agencies may enforce subpoenas issued in the course of

investigations, whether or not adjudication is involved, and whether or not probable

cause is shown 16and even before the issuance of a complaint. 17It is not

necessary, as in the case of a warrant, that a specific charge or complaint of

violation of law be pending or that the order be made pursuant to one. It is enough

that the investigation be for a lawfully authorized purpose. 18The purpose of the

subpoena is to discover evidence, not to prove a pending charge, but upon which

to make one if the discovered evidence so justifies. 19Its obligation cannot rest on

a trial of the value of testimony sought; it is enough that the proposed investigation

be for a lawfully authorized purpose, and that the proposed witness be claimed to

have information that might shed some helpful light. 20Because judicial power is

reluctant if not unable to summon evidence until it is shown to be relevant to issues

on litigations it does not follow that an administrative agency charged with seeing

that the laws are enforced may not have and exercise powers of original inquiry.

The administrative agency has the power of inquisition which is not dependentupon a case or controversy in order to get evidence, but can investigate merely on

suspicion that the law is being violated or even just because it wants assurance

that it is not. When investigative and accusatory duties are delegated by statute to

an administrative body, it, too may take steps to inform itself as to whether there is

probable violation of the law.21In sum, it may be stated that a subpoena meets the

requirements for enforcement if the inquiry is (1) within the authority of the agency;

(2) the demand is not too indefinite; and (3) the information is reasonably

relevant. 22

There is no doubt that the fact-finding investigations being conducted by the

Agency upon sworn statements implicating certain public officials of the City

Government of Manila in anomalous transactions23

fall within the Agency's sphere


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of authority and that the information sought to be elicited from respondent Fernando

Manalastas, of which he is claimed to be in possession, 24is reasonably relevant to

the investigations.

We are mindful that the privilege against self-incrimination extends in administrative

investigations, generally, in scope similar to adversary proceedings. 25In Cabal v.

Kapunan, Jr., 26the Court ruled that since the administrative charge of unexplainedwealth against the respondent therein may result in the forfeiture of the property

under the Anti-Graft and Corrupt Practices Act, a proceeding criminal or penal in

nature, the complainant cannot call the respondent to the witness stand without

encroaching upon his constitutional privilege against self-incrimination. Later,

in Pascual, Jr. v. Board of Medical Examiners,27the same approach was followed in

the administrative proceedings against a medical practitioner that could possibly

result in the loss of his privilege to practice the medical profession. Nevertheless, in

the present case, We find that respondent Fernando Manalastas is not facing any

administrative charge. 28He is merely cited as a witness in connection with the fact-

finding investigation of anomalies and irregularities in the City Government of Manila

with the object of submitting the assembled facts to the President of the Philippines or

to file the corresponding charges. 29Since the only purpose of investigation is to

discover facts as a basis of future action, any unnecessary extension of the privilege

would thus be unwise. 30Anyway, by all means, respondent Fernando Manalastas

may contest any attempt in the investigation that tends to disregard his privilege

against self-incrimination.

A question of constitutional dimension is raised by respondents on the inherent power

of the President of the Philippines to issue subpoena. 31More tersely stated,

respondents would now challenge, in a collateral way, the validity of the basic

authority, Executive Order No. 4, as amended in part by Executive Order No. 88.

Unfortunately, for reasons of public policy, the constitutionality of executive orders,

which are commonly said to have the force and effect of statutes 32cannot be

collaterally impeached. 33 Much more when the issue was not duly pleaded in the

court below as to be acceptable for adjudication now. 34The settled rule is that the

Court will not anticipate a question of constitutional law in advance of the necessity of

deciding it. 35

Nothing then appears conclusive than that the disputed subpoena issued by petitioner

Quirico Evangelista to respondent Fernando Manalastas is well within the legal

competence of the Agency to issue.

WHEREFORE, the aforequoted order of respondent Judge, dated July 1, 1968, is

hereby set aside and declared of no force and effect.

Without pronouncement as to costs.

SO ORDERED.


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G.R. No. 116801 April 6, 1995

GLORIA G. LASTIMOSA, First Assistant Provincial Prosecutor ofCebu, petitioner,

vs.

HONORABLE OMBUDSMAN CONRADO VASQUEZ, HONORABLE ARTURO C.

MOJICA, DEPUTY OMBUDSMAN FOR THE VISAYAS, and HONORABLEFRANKLIN DRILON, SECRETARY OF JUSTICE, and UNDERSECRETARY OFJUSTICE RAMON J. LIWAG, respondents.2

MENDOZA, J. :

This case requires us to determine the extent to which the Ombudsman may call

upon government prosecutors for assistance in the investigation and prosecution of

criminal cases cognizable by his office and the conditions under which he may do so.

Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu.Because she and the Provincial Prosecutor refused, or at any rate failed, to file a

criminal charge as ordered by the Ombudsman, an administrative complaint for grave

misconduct, insubordination, gross neglect of duty and maliciously refraining from

prosecuting crime was filed against her and the Provincial Prosecutor and a charge

for indirect contempt was brought against them, both in the Office of the Ombudsman.

In the meantime the two were placed under preventive suspension. This is a petition

for certiorari and prohibition filed by petitioner to set aside the orders of the

Ombudsman with respect to the two proceedings.

The background of this case is as follows:

On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe,Cebu, filed a criminal complaint for frustrated rape and an administrative complaint for

immoral acts, abuse of authority and grave misconduct against the Municipal Mayor

of Santa Fe, Rogelio Ilustrisimo. 1The cases were filed with the Office of theOmbudsman-Visayas where they were docketed as OMB-VIS-(CRIM)-93-0140 and

OMB-VIS-(ADM)-93-0036, respectively.

The complaint was assigned to a graft investigation officer who, after an investigation,

found noprima facieevidence and accordingly recommended the dismissal of the

complaint. After reviewing the matter, however, the Ombudsman, Hon. Conrado

2

Power to punish contempt

Vasquez, disapproved the recommendation and instead directed that Mayor

Ilustrisimo be charged with attempted rape in the Regional Trial Court. 2

Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas,

respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor

Oliveros E. Kintanar for the "filing of appropriate information with the Regional Trial

Court of Danao City, . . ." 3The case was eventually assigned to herein petitioner,First Assistant Provincial Prosecutor Gloria G. Lastimosa.

It appears that petitioner conducted a preliminary investigation on the basis of

which she found that only acts of lasciviousness had been committed. 4With theapproval of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information

for acts of lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial

Court of Santa Fe. 5

In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22,

1994, Deputy Ombudsman Mojica inquired as to any action taken on the previous

referral of the case, more specifically the directive of the Ombudsman to charge

Mayor Ilustrisimo with attempted rape. 6

As no case for attempted rape had been filed by the Prosecutor's Office, Deputy

Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and

petitioner Lastimosa to show cause why they should not be punished for contempt

for "refusing and failing to obey the lawful directives" of the Office of the

Ombudsman. 7

For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial

Prosecutor were given until August 3, 1994 within which to submit their

answer. 8An answer 9was timely filed by them and hearings were thereupon

conducted.

It appears that earlier, on July 22, 1994, two cases had been filed against the two

prosecutors with the Office of the Ombudsman for Visayas by Julian Menchavez, a

resident of Santa Fe, Cebu. One was an administrative complaint for violation of

Republic Act No. 6713 and P.D. No. 807 (the Civil Service Law) 10and another one

was a criminal complaint for violation of 3(e) of Republic Act No. 3019 and Art.

208 of the Revised Penal Code. 11The complaints were based on the allegedrefusal of petitioner and Kintanar to obey the orders of the Ombudsman to charge

Mayor Ilustrisimo with attempted rape.

In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy

Ombudsman for Visayas Mojica issued an order on August 15, 1994, placing


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petitioner Gloria G. Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under

preventive suspension for a period of six (6) months, 12pursuant to Rule III, 9 of theRules of Procedure of the Office of the Ombudsman (Administrative Order No. 7), in

relation to 24 of R.A. No. 6770. The order was approved by Ombudsman Conrado

M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary of Justice

Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial

Prosecutor of Cebu.

On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued

orders 13in the two cases, directing petitioner and Provincial Prosecutor Kintanar tosubmit their counter affidavits and controverting evidence.

On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition

for certiorari and prohibition to set aside the following orders of the Office of the

Ombudsman and Department of Justice:

(a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C. Mojica

and related orders, referring to the Office of the Cebu Provincial Prosecutor the

records of OMB-VIS-CRIM-93-0140, entitled Jessica V. Dayon vs. Mayor RogelioIlustrisimo, "for filing of the appropriate action (for Attempted Rape) with the Regional

Trial Court of Danao City.

(b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders

directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to explain in

writing within three (3) days from receipt why they should not be punished for indirect

Contempt of the Office of the Ombudsman "for refusing and failing . . . to file the

appropriate Information for Attempted Rape against Mayor Rogelio Ilustrisimo.

(c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon J.

Liwag, ordering the Office of the Provincial Prosecutor to comply with the directive of

the Office of the Ombudsman that a charge for attempted rape be filed againstrespondent Mayor Ilustrisimo in recognition of the authority of said Office.

(d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved by

Ombudsman Conrado Vasquez, and related orders in OMB-VIS-(ADM)-94-0189,

entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa, placing

petitioner and Provincial Prosecutor Kintanar under preventive suspension for a

period of six (6) months, without pay.

(e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag

directing Assistant Regional State Prosecutor Eduardo O. Concepcion (Region VII) to

implement the letter dated August 15, 1994 of Ombudsman Vasquez, together with

the Order dated August 15, 1994, placing petitioner and Provincial Prosecutor

Kintanar under preventive suspension.

(f) Department Order No. 259 issued by Acting Secretary Liwag on August 18,

1994, designating Assistant Regional State Prosecutor Concepcion Acting

Provincial Prosecutor of Cebu.

Petitioner raises a number of issues which will be discussed not necessarily in the

order they are stated in the petition.

I. The pivotal question in this case is whether the Office of the Ombudsman has the

power to call on the Provincial Prosecutor to assist it in the prosecution of the case

for attempted rape against Mayor Ilustrisimo. Lastimosa claims that the Office of

the Ombudsman and the prosecutor's office have concurrent authority to

investigate public officers or employees and that when the former first took

cognizance of the case against Mayor Ilustrisimo, it did so to the exclusion of the

latter. It then became the duty of the Ombudsman's office, according to petitioner,

to finish the preliminary investigation by filing the information in court instead of

asking the Office of the Provincial Prosecutor to do so. Petitioner contends that thepreparation and filing of the information were part and parcel of the preliminary

investigation assumed by the Office of the Ombudsman and the filing of information

in court could not be delegated by it to the Office of the Provincial Prosecutor.

Petitioner defends her actuations in conducting a preliminary investigation as

having been made necessary by the insistence of the Ombudsman to delegate the

filing of the case to her office.

In any event, petitioner contends, the Office of the Ombudsman has no jurisdiction

over the case against the mayor because the crime involved (rape) was not

committed in relation to a public office. For this reason it is argued that the Office of

the Ombudsman has no authority to place her and Provincial Prosecutor Kintanar

under preventive suspension for refusing to follow his orders and to cite them forindirect contempt for such refusal.

Petitioner's contention has no merit. The office of the Ombudsman has the power

to "investigate and prosecute on its own or on complaint by any person, any act or

omission of any public officer or employee, office or agency, when such act or

omission appears to be illegal, unjust, improper or inefficient." 14This power has

been held to include the investigation and prosecution of any crime committed by a

public official regardless of whether the acts or omissions complained of are related

to, or connected with, or arise from, the performance of his official duty 15 It is

enough that the act or omission was committed by a public official. Hence, the


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crime of rape, when committed by a public official like a municipal mayor, is within the

power of the Ombudsman to investigate and prosecute.

In the existence of his power, the Ombudsman is authorized to call on prosecutors for

assistance. 31 of the Ombudsman Act of 1989 (R.A. No. 6770) provides:

Designation of Investigators and Prosecutors. The Ombudsman may utilize thepersonnel of his office and/or designate of deputize any fiscal, state prosecutor or

lawyer in the government service to act as special investigator or prosecutor to assist

in the investigation and prosecution of certain cases. Those designated or deputized

to assist him as herein provided shall be under his supervision and control.

(Emphasis added)

It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy

Ombudsman Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an

information for attempted rape against Mayor Rogelio Ilustrismo.

It does not matter that the Office of the Provincial Prosecutor had already conducted

the preliminary investigation and all that remained to be done was for the Office of theProvincial Prosecutor to file the corresponding case in court. Even if the preliminary

investigation had been given over to the Provincial Prosecutor to conduct, his

determination of the nature of the offense to be charged would still be subject to the

approval of the Office of the Ombudsman. This is because under 31 of the

Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision

and control" of the Ombudsman which means that he is subject to the power of the

Ombudsman to direct, review, approve, reverse or modify his (prosecutor's)

decision. 16Petitioner cannot legally act on her own and refuse to prepare and file theinformation as directed by the Ombudsman.

II. The records show that despite repeated orders of the Ombudsman, petitioner

refused to file an information for attempted rape against Mayor Ilustrisimo, insistingthat after investigating the complaint in the case she found that he had committed

only acts of lasciviousness.

15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to

"punish for contempt, in accordance with the Rules of Court and under the same

procedure and with the same penalties provided therein." There is no merit in the

argument that petitioner and Provincial Prosecutor Kintanar cannot be held liable for

contempt because their refusal arose out of an administrative, rather than judicial,

proceeding before the Office of the Ombudsman. As petitioner herself says in another

context, the preliminary investigation of a case, of which the filing of an information is

a part, is quasi judicial in character.

Whether petitioner's refusal to follow the Ombudsman's orders constitutes a

defiance, disobedience or resistance of a lawful process, order or command of the

Ombudsman thus making her liable for indirect contempt under Rule 71, 3 of the

Rules of Court is for respondents to determine after appropriate hearing. At this

point it is important only to note the existence of the contempt power of the

Ombudsman as a means of enforcing his lawful orders.

III. Neither is there any doubt as to the power of the Ombudsman to discipline

petitioner should it be found that she is guilty of grave misconduct, insubordination

and/or neglect of duty, nor of the Ombudsman's power to place her in the

meantime under preventive suspension. The pertinent provisions of the

Ombudsman Act of 1989 state:

21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the

Ombudsman shall have disciplinary authority over all elective and appointive

officials of the Government and its subdivisions, instrumentalities and agencies,

including Members of the Cabinet, local government, government-owned or

controlled corporations and their subsidiaries, except over officials who may be

removed only by impeachment or over Members of Congress, and the Judiciary.

22. Preventive Suspension. The Ombudsman or his Deputy may suspend any

officer or employee under his authority pending an investigation, if in his judgment

the evidence of guilt is strong, and (a) the charge against such officer or employee

involves dishonesty, oppression or grave misconduct or neglect in the performance

of duty; (b) the charges would warrant removal from the service; or (c) the

respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office

of the Ombudsman but not more than six months, without pay, except when the

delay in the disposition of the case by the Office of the Ombudsman is due to the

fault, negligence or petition of the respondent, in which case the period of suchdelay shall not be counted in computing the period of suspension herein provided.

A. Petitioner contends that her suspension is invalid because the order was issued

without giving her and Provincial Prosecutor Kintanar the opportunity to refute the

charges against them and because, at any rate, the evidence against them is not

strong as required by 24. The contention is without merit. Prior notice and hearing

is a not required, such suspension not being a penalty but only a preliminary step in

an administrative investigation. As held in Nera v. Garcia:17

In connection with the suspension of petitioner before he could file his answer to

the administrative complaint, suffice it to say that the suspension was not a


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punishment or penalty for the acts of dishonesty and misconduct in office, but only as

a preventive measure. Suspension is a preliminary step in an administrative

investigation. If after such investigation, the charges are established and the person

investigated is found guilty of acts warranting his removal, then he is removed or

dismissed. This is the penalty. There is, therefore, nothing improper in suspending an

officer pending his investigation and before the opportunity to prove his innocence.

(Emphasis added).

It is true that, under 24 of the Ombudsman's Act, to justify the preventive suspension

of a public official, the evidence against him should be strong, and any of the

following circumstances is present:

(a) the charge against such officer or employee involves dishonesty, oppression or

grave misconduct or neglect in the performance of duty;

(b) the charges would warrant removal from the service; or

(c) the respondent's continued stay in office may prejudice the case filed against him.

As held in Buenaseda v. Flavier,18however, whether the evidence of guilt is strong is

left to the determination of the Ombudsman by taking into account the evidence

before him. A preliminary hearing as in bail petitions in cases involving capital

offenses is not required. In rejecting a similar argument as that made by petitioner in

this case, this Court said in that case:

The import of the Nera decision is that the disciplining authority is given the discretion

to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of

R.A. No. 6770, which expressly left such determination of guilt to the "judgment" of

the Ombudsman on the basis of the administrative complaint. . . . 19

In this case, respondent Deputy Ombudsman Mojica justified the preventivesuspension of petitioner and Provincial Prosecutor Kintanar on the following grounds:

A careful assessment of the facts and circumstances of the herein cases and the

records pertaining thereto against respondents [Provincial Prosecutor Kintanar and

herein petitioner] clearly leads to the conclusion that the evidence on record of guilt is

strong and the charges involved offenses of grave misconduct, gross neglect of duty

and dishonesty which will warrant respondents [Provincial Prosecutor Kintanar and

herein petitioner] removal from the service. Moreover, considering the unabashed

attitude of respondents in openly announcing various false pretexts and alibis to

justify their stubborn disregard for the lawful directives of the Ombudsman as their

official position in their pleadings filed in OMB-VIS-0-94-0478 and in print and

broadcast media, the probability is strong that public service more particularly in the

prosecution of cases referred by the Office of the Ombudsman to the Cebu

Provincial Prosecutor's office will be disrupted and prejudiced and the records of

said cases even be tampered with if respondents [Provincial Prosecutor Kintanar

and herein petitioner] are allowed to stay in the Cebu Provincial Prosecutor's Office

during the pendency of these proceedings.

Indeed respondent Deputy Ombudsman Mojica had personal knowledge of thefacts justifying the preventive suspension of petitioner and the Provincial

Prosecutor since the acts alleged in the administrative complaint against them were

done in the course of their official transaction with the Office of the Ombudsman.

The administrative complaint against petitioner and Provincial Prosecutor Kintanar

was filed in connection with their designation as deputies of the ombudsman in the

prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Respondent

Deputy Ombudsman did not have to go far to verify the matters alleged in

determine whether the evidence of guilt of petitioner and Provincial Prosecutor was

strong for the purpose of placing them under preventive suspension.

Given the attitude displayed by petitioner and the Provincial Prosecutor toward the

criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension isjustified to the end that the proper prosecution of that case may not be

hampered.20In addition, because the charges against the two prosecutors involve

grave misconduct, insubordination and neglect of duty and these charges, if

proven, can lead to a dismissal from public office, the Ombudsman was justified in

ordering their preventive suspension.

B. Petitioner questions her preventive suspension for six (6) months without pay

and contends that it should only be for ninety (90) days on the basis of cases

decided by this Court. Petitioner is in error. She is referring to cases where the law

is either silent or expressly limits the period of suspension to ninety (90) days. With

respect to the first situation, we ruled in the case of Gonzaga v.

Sandiganbayan21that

To the extent that there may be cases of indefinite suspension imposed either

under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for

the guidance of all concerned that this Court set forth the rules on the period of

preventive suspension under the aforementioned laws, as follows:

1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be

limited to a maximum period of ninety (90) days, from issuances thereof, and this

applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are

validly charged under said Act.


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2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all

officers or employees whose positions are embraced in the Civil Service, as provided

under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to a maximum

period of ninety (90) days from issuance, except where there is delay in the

disposition of the case, which is due to the fault, negligence or petition of the

respondent, in which case the period of delay shall both be counted in computing the

period of suspension herein stated; provided that if the person suspended is apresidential appointee, the continuance of his suspension shall be for a reasonable

time as the circumstances of the case may warrant.

On the other hand, petitioner and the Provincial Prosecutor were placed under

preventive suspension pursuant to 24 of the Ombudsman Act which expressly

provides that "the preventive suspension shall continue until the case is terminated by

the Office of the Ombudsman but not more than six months, without pay." Their

preventive suspension for six (6) months without pay is thus according to law.

C. Nor is there merit in petitioner's claim that the contempt charge should first be

resolved before any action in the administrative complaint case can be taken because

the contempt case involves a prejudicial question. There is simply no basis for thiscontention. The two cases arose out of the same act or omission and may proceed

hand in hand, or one can be heard before the other. Whatever order is followed will

not really matter.

WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift

Order of Preventive Suspension is DENIED.

SO ORDERED.


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G.R. No. L-63915 December 29, 1986

LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OFATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.(MABINI), petitioners,vs.

HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President,HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to thePresident, MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.3

R E S O L U T I O N

CRUZ, J .:

Due process was invoked by the petitioners in demanding the disclosure of a number

of presidential decrees which they claimed had not been published as required by

law. The government argued that while publication was necessary as a rule, it was

not so when it was "otherwise provided," as when the decrees themselves declared

that they were to become effective immediately upon their approval. In the decision ofthis case on April 24, 1985, the Court affirmed the necessity for the publication of

some of these decrees, declaring in the dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette

all unpublished presidential issuances which are of general application, and unless so

published, they shall have no binding force and effect.

The petitioners are now before us again, this time to move for

reconsideration/clarification of that decision. 1Specifically, they ask the following

questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which

are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

3

Implementing Rules of Interpretative Policies

Resolving their own doubts, the petitioners suggest that there should be no

distinction between laws of general applicability and those which are not; that

publication means complete publication; and that the publication must be made

forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the

motion was a request for an advisory opinion and should therefore be dismissed,and, on the merits, that the clause "unless it is otherwise provided" in Article 2 of

the Civil Code meant that the publication required therein was not always

imperative; that publication, when necessary, did not have to be made in the

Official Gazette; and that in any case the subject decision was concurred in only by

three justices and consequently not binding. This elicited a Reply 4refuting these

arguments. Came next the February Revolution and the Court required the new

Solicitor General to file a Rejoinder in view of the supervening events, under Rule

3, Section 18, of the Rules of Court. Responding, he submitted that issuances

intended only for the internal administration of a government agency or for

particular persons did not have to be 'Published; that publication when necessary

must be in full and in the Official Gazette; and that, however, the decision under

reconsideration was not binding because it was not supported by eight members of

this Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

ART. 2. Laws shall take effect after fifteen days following the completion of their

publication in the Official Gazette, unless it is otherwise provided. This Code shall

take effect one year after such publication.

After a careful study of this provision and of the arguments of the parties, both on

the original petition and on the instant motion, we have come to the conclusion and

so hold, that the clause "unless it is otherwise provided" refers to the date of

effectivity and not to the requirement of publication itself, which cannot in any eventbe omitted. This clause does not mean that the legislature may make the law

effective immediately upon approval, or on any other date, without its previous

publication.

Publication is indispensable in every case, but the legislature may in its discretion

provide that the usual fifteen-day period shall be shortened or extended. An

example, as pointed out by the present Chief Justice in his separate concurrence in

the original decision, 6is the Civil Code which did not become effective after fifteen

days from its publication in the Official Gazette but "one year after such

publication." The general rule did not apply because it was "otherwise provided. "


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It is not correct to say that under the disputed clause publication may be dispensed

with altogether. The reason. is that such omission would offend due process insofar

as it would deny the public knowledge of the laws that are supposed to govern the

legislature could validly provide that a law e effective immediately upon its approval

notwithstanding the lack of publication (or after an unreasonably short period after

publication), it is not unlikely that persons not aware of it would be prejudiced as a

result and they would be so not because of a failure to comply with but simplybecause they did not know of its existence, Significantly, this is not true only of penal

laws as is commonly supposed. One can think of many non-penal measures, like a

law on prescription, which must also be communicated to the persons they may affect

before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law,

which of course presupposes that the law has been published if the presumption is to

have any legal justification at all. It is no less important to remember that Section 6 of

the Bill of Rights recognizes "the right of the people to information on matters of public

concern," and this certainly applies to, among others, and indeed especially, the

legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application,

for strictly speaking all laws relate to the people in general albeit there are some that

do not apply to them directly. An example is a law granting citizenship to a particular

individual, like a relative of President Marcos who was decreed instant naturalization.

It surely cannot be said that such a law does not affect the public although it

unquestionably does not apply directly to all the people. The subject of such law is a

matter of public interest which any member of the body politic may question in the

political forums or, if he is a proper party, even in the courts of justice. In fact, a law

without any bearing on the public would be invalid as an intrusion of privacy or as

class legislation or as anultra vires act of the legislature. To be valid, the law must

invariably affect the public interest even if it might be directly applicable only to one

individual, or some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local application and private

laws, shall be published as a condition for their effectivity, which shall begin fifteen

days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by

the President in the exercise of legislative powers whenever the same are validly

delegated by the legislature or, at present, directly conferred by the Constitution.

administrative rules and regulations must a also be published if their purpose is to

enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating

only the personnel of the administrative agency and not the public, need not be

published. Neither is publication required of the so-called letters of instructions

issued by administrative superiors concerning the rules or guidelines to be followed

by their subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that itapplies to only a portion of the national territory and directly affects only the

inhabitants of that place. All presidential decrees must be published, including

even, say, those naming a public place after a favored individual or exempting him

from certain prohibitions or requirements. The circulars issued by the Monetary

Board must be published if they are meant not merely to interpret but to "fill in the

details" of the Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister

of Social Welfare on the case studies to be made in petitions for adoption or the

rules laid down by the head of a government agency on the assignments or

workload of his personnel or the wearing of office uniforms. Parenthetically,

municipal ordinances are not covered by this rule but by the Local GovernmentCode.

We agree that publication must be in full or it is no publication at all since its

purpose is to inform the public of the contents of the laws. As correctly pointed out

by the petitioners, the mere mention of the number of the presidential decree, the

title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed

date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy

the publication requirement. This is not even substantial compliance. This was the

manner, incidentally, in which the General Appropriations Act for FY 1975, a

presidential decree undeniably of general applicability and interest, was "published"

by the Marcos administration. 7The evident purpose was to withhold rather than

disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were

categorically for publication in the Official Gazette 8 and that six others felt that

publication could be made elsewhere as long as the people were sufficiently

informed. 9One reserved his vote 10and another merely acknowledged the need

for due publication without indicating where it should be made. 11 It is therefore

necessary for the present membership of this Court to arrive at a clear consensus

on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the

Official Gazette, considering its erratic releases and limited readership.


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Undoubtedly, newspapers of general circulation could better perform the function of

communicating, the laws to the people as such periodicals are more easily available,

have a wider readership, and come out regularly. The trouble, though, is that this kind

of publication is not the one required or authorized by existing law. As far as we know,

no amendment has been made of Article 2 of the Civil Code. The Solicitor General

has not pointed to such a law, and we have no information that it exists. If it does, it

obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal

or modify it if we find it impractical. That is not our function. That function belongs to

the legislature. Our task is merely to interpret and apply the law as conceived and

approved by the political departments of the government in accordance with the

prescribed procedure. Consequently, we have no choice but to pronounce that under

Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett

and not elsewhere, as a requirement for their effectivity after fifteen days from such

publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as

possible, to give effect to the law pursuant to the said Article 2. There is thatpossibility, of course, although not suggested by the parties that a law could be

rendered unenforceable by a mere refusal of the executive, for whatever reason, to

cause its publication as required. This is a matter, however, that we do not need to

examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request

for an advisory opinion is untenable, to say the least, and deserves no further

comment.

The days of the secret laws and the unpublished decrees are over. This is once again

an open society, with all the acts of the government subject to public scrutiny and

available always to public cognizance. This has to be so if our country is to remaindemocratic, with sovereignty residing in the people and all government authority

emanating from them.

Although they have delegated the power of legislation, they retain the authority to

review the work of their delegates and to ratify or reject it according to their lights,

through their freedom of expression and their right of suffrage. This they cannot do if

the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the

shadows with their dark, deep secrets. Mysterious pronouncements and rumored

rules cannot be recognized as binding unless their existence and contents are

confirmed by a valid publication intended to make full disclosure and give proper

notice to the people. The furtive law is like a scabbarded saber that cannot feint

parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall

immediately upon their approval, or as soon thereafter as possible, be published in

full in the Official Gazette, to become effective only after fifteen days from theirpublication, or on another date specified by the legislature, in accordance with

Article 2 of the Civil Code.

SO ORDERED.


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G.R. No. 164314 September 26, 2008

SECURITIES AND EXCHANGE COMMISSION,Petitionervs.

PICOP RESOURCES, INC.,Respondent.4

D E C I S I O N

REYES, R.T., J. :

A party generally advocates the rules for his benefit, but invokes exceptions when he

violates it. Karaniwang isinusulong ng isang panig ang tuntunin para sa kanyang

kapakanan, ngunit humihingi ng pagtatangi kapag siya ang lumalabag nito.

The aphorism finds relevance in this petition for review on certiorari1of two

Resolutions1-aof the Court of Appeals (CA). The first Resolution denied the motion

for extension to file a petition for review, the second denied the motion for

reconsideration.

The Facts

On March 26, 2002, respondent PICOP Resources, Inc. (PICOP) filed with petitioner

Securities and Exchange Commission (SEC) an application for amendment of its

Articles of Incorporation (AOI) extending its corporate existence for another fifty (50)

years. PICOP paid the filing fee of P210.00 based on SEC Memorandum Circular No.

2, Series of 1994 (1994 Circular).2

The SEC, however, informed PICOP of the appropriate filing fee of P12 Million, or 1/5

of 1% of its authorized capital stock of P6 Billion .3PICOP sought clarification of the

applicable filing fee and the reduction of the amount of P12 Million prescribed by the

SEC.4What followed were several exchanges of correspondence on the applicable

filing fee for amended AOI extending the corporate term of PICOP.5

Through Director Benito A. Cataran of the Company Registration and Monitoring

Department, the SEC held that the P12 Million assessment6is based on Republic Act

(RA) No. 3531.7This Act provides that in case an amendment of the AOI consists of

extending the term of corporate existence, the SEC shall be entitled to collect and

receive the same fees collectible under existing law for the filing of AOI.8

PICOP elevated the matter to the SEC En Banc.9It asked for the reduction of the

filing fee from P12 Million to P210.00. The present SEC Revised Schedule of

4

Implementing Rules of Interpretative Policies

Fees10

(2001 Circular) does not provide varying filing fees for amended AOI

depending on the purpose of the amendment to be introduced.11Neither did the

previous Schedule of Fees (1994 Circular) allow SEC to collect and receive the

same fees for amendment of AOI as an original filing.12

Under the latter Circular, the examining and filing fee for amended AOI of both

stock and non-stock corporations is only P200.00.13

The SEC En Banc, through Commissioner Jesus E.G. Martinez, denied PICOPs

request.14

He justified the Commissions decision in the following tenor:

This Commission maintains the position that there is no legal basis to exempt

PICOP Resources, Inc. from paying the filing fee as assessed by the CRMD.

The assessed fee is based on the pertinent provisions of R.A. 3531. Although SEC

memorandum Circular No. 2, Series of 1994 and the Schedule of Revised Fees

approved on 23 July 2001 do not provide for a filing fee for extensions of term,

these do not limit the Securities and Exchange Commission from imposing the

prevailing fees.15

However, the SEC En Banc reduced the filing fee to P6 Million by stating:

x x x there appears to be no basis for said fee to be computed at the revised rate of

1/5 of 1% of the authorized capital stock since the formula which was contemplated

in SEC Circular Series 1986 is 1/10 of 1% of the authorized capital stock. To adapt

(sic) the former would be tantamount to a violation of the requirement to properly

apprise the public of substantive change.16

PICOP sought a reconsideration17

of the En Banc ruling. It argued that RA No.

3531 has been repealed by the Corporation Code of 1980 and Presidential Decree

902-A.

18

Section 139

19

of the Corporation Code authorizes the SEC to collect andreceive fees as authorized by law or by rules and regulation promulgated by the

SEC.

Along this line, PICOP posited that SEC Memorandum Circular No. 1, Series of

1986 (1986 Circular) rules on the specific subject matter of "Filing Fees for

Amended Articles of Incorporation Extending the Term of Corporate Existence."

The prescribed filing fee is 1/10 of 1% of the authorized capital stock, with the

qualification that it should not be less than P200.00 or more than P100,000.00.

PICOP pointed out that no equivalent provision appears in any of the subsequent

SEC circulars such as the 1994 and 2001 circulars. Hence, the 1986 Circular

should prevail.20
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The SEC En Banc denied once more PICOPs request to reconsider the earlier ruling

and reverted to the P12 Million assessment.21It maintained that the provision on the

maximum imposable fee under the 1986 Circular has been amended by the 1994

Circular which removed the maximum imposable fee.22Furthermore, the SEC En

Banc explained that contentions that its 2001 Circular was not published are

erroneous. There was, in fact, due publication in The Manila Standard on July 31,

2001. Accordingly, the 2001 Circular became effective on August 15, 2001. Thus, thepublic was properly apprised of the changes in fees.

23

On August 12, 2002, PICOP paid under protest the amount of P11,999,790.00. This

was in addition to its original payment of P210.00 to cover the SEC-prescribed filing

fee.24Then PICOP again moved for reconsideration.25This was denied by SEC

Chairperson Lilia R. Bautista.26

Dissatisfied, PICOP appealed the matter to the Office of the President (OP) .27

It

raised the following issues: (1) whether or not the OP has jurisdiction to entertain the

appeal; and (2) in the event that the OP has jurisdiction, how much is the filing fee for

the amendment of PICOPs AOI to extend the term of its corporate existence?

OP Disposition

On September 22, 2003, the OP decided in favor of PICOP, disposing as follows:

WHEREFORE, premises considered, the instant appeal is GRANTED and the

questioned SEC Order dated August 15, 2002 SET ASIDE. Accordingly, it is hereby

DECLARED that the applicable filing fee for the extension of the term of corporate

existence of the appellant is P100,000, pursuant to SEC Memorandum Circular No. 1,

s. of 1986. Consequently, the SEC is ordered to REFUND whatever amount that the

appellant was required to pay in excess.

SO ORDERED.28

The OP maintained that even with the issuance of Executive Order (EO) No. 192,29

it

retained its appellate jurisdiction over the SEC. EO No. 192 merely provided for the

transfer of the administrative supervision of the SEC back to the Department of

Finance from the OP.30

Under Section 38, Chapter 7, Book IV of the Administrative Code of 1987,

administrative supervision does not extend to "the power to review, reverse, revise, or

modify the decisions of regulatory agencies in the exercise of their regulatory or

quasi-judicial functions."31

Such is rightfully within the ambit of the presidential power

of supervision and control,32

which includes the authority to review, approve, reverse,

or modify acts and decisions of subordinate officials or units.33

The OP added that EO No. 192 does not carry an express repeal of EO No.

60.34Section 2 of EO No. 6035specifically provides that "matters not expressly

appealable to the Court of Appeals under present circulars of the Supreme Court of

the Philippines are hereby declared appealable to the Office of the President."

Hence, the OP retains its appellate jurisdiction in the instant case.

Having established its jurisdiction over the case, the OP disposed of the mainissue, thus:

The SEC relies on that specific provision in RA 3531 which provides that where the

amendment consists in extending the term of the corporate existence, the SEC

shall be entitled to collect and receive for the filing of the amended articles of

incorporation "the same fees collectible under existing law for th e filing of articles of

incorporation." The fundamental flaw in this position is that SEC is unable to point

to an existing law that justifies the imposition of the fee rate of 1/5 of 1% of the

authorized capital stock.

On the other hand, appellant has identified the 1986 Circular, whose specific

subject matter is "Filing Fees for Amended Articles of Incorporation Extending theTerm of Corporate Existence." Under this, it is explicit that the applicable fee for

stock corporations is "1/10 of 1% of the authorized capital stock, but not less than

Php200 nor more than Php100,000."36

The OP pointed out that unlike the 1994 and 2001 Circulars relied on by the SEC,

the 1986 Circular specifically addresses the matter of filing fees on extension of

corporate existence. Further, going by the tenet of statutory construction that a

special rule cannot be repealed, amended, or altered by a subsequent general

rule,37

the OP concluded that the 1986 Circular cannot be repealed, amended, or

altered by the 1994 or 2001 Circulars.38

The fees provided by the said earlier

Circular remain the applicable filing fees.

Two Motions for Reconsideration

By a first motion, the SEC sought a reconsideration. This was denied by the OP

through a Resolution dated December 19, 2003. It did not find any new matter

sufficiently persuasive to modify its earlier ruling.39

Although aware of the prohibition against a second motion for reconsideration,

petitioner filed such a motion, compelled by an alleged newly-found evidence. It

prayed for the OPs acceptance of SEC Circular No. 2, Series of 1990 (1990

Circular) which removed the filing fee ceilings provided for in the 1986
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14/108

Administrative Law


Respicio,

L.,

Tuballa,

L.

14

Circular.40

Thus, the prescribed filing fee in cases of filing amended AOI for extending

the corporate term is 1/10 of 1% of the authorized capital stock.

The SEC also enumerated the subsequent EOs and Circulars41

which called for the

increase in SEC fees and charges. The latest of these was the 2001 Circular, which

now prescribes the formula of 1/5 of 1% of the authorized capital stock.

The SEC likewise appealed for the OPs consideration of the supervening event

which caused the 1990 Circular to be misplaced. The Commission reorganized and

streamlined its operations and functions after the effectivity of RA No. 8799

(Securities Regulation Code). As consequence, one-half of its personnel were

separated.42The offices of Corporate and Legal Department and Examination and

Appraisers Department were abolished. These offices were in charge of implementing

and enforcing circulars regarding examination and filing fees for amendment of AOI.43

It was this transfer of offices and personnel following the reorganization that resulted

in the loss and displacement of the 1990 Circular. It was only upon diligent search

that the said Circular was found.44

On March 19, 2004, the OP denied the SECs second motion for reconsideration for

being a prohibitory pleading.45

It cited Section 7 of Administrative Order (AO) No.

18,46which provides that only one motion for reconsideration by any one party shall

be allowed and entertained, save in exceptionally meritorious cases.47

The OP ruled that the SECs explanation makes out a case of negligence without any

showing it was excusable.48

The OP found it self-serving and unbelievable that the

Commission was unable to "unearth" the 1990 Circular for more than three (3) years.

Yet, it was able to produce it in a matter of fifteen (15) days in time for its second

motion for reconsideration.

Of greater curiosity to the OP was the submission to the U.P. Law Center of certifiedtrue copies of the 1990 Circular only on the same day of the filing of the second

motion for reconsideration. This betrayed the SECs own acknowledgment that such

requirement was not earlier complied with. It is clear then that 1990 Circular was not

effective at the time PICOP applied for the extension of its corporate term.

Unyielding, the SEC brought the matter to the CA.

CA Ruling

The SEC initially filed a motion for extension to file a petition for review under Rule

43. It requested for an additional fifteen (15) days from April 3, 2004 to file its

pleading.

49

On May 3, 2004, the CA through its first Resolution denied the motion for having

been filed beyond the reglementary period.50The CA said:

Under Section 4, Rule 43 of the Revised Rules of Court, only one (1) motion for

reconsideration is allowed. Thus, being a prohibited pleading, the filing of the

second motion for reconsideration before the agency a quo did not toll the running

of the period within which to file a petition for review, which expired fifteen (15)days after petitioner received a copy of the December 19, 2003 Resolution of the

Office of the President.51(Emphasis supplied)

The SEC erroneously reckoned the period to file its petition for review from March

19, 2004 or the date of the OPs denial of its second motion for reconsideration.

The filing period actually expired on January 3, 2004 or seventeen (17) days before

the Commission even filed its prohibited pleading with the OP.

The SEC sought reconsideration of the CAs first Resolution.52

This was

subsequently denied via a June 30, 2004 Resolution.53The CA ratiocinated:

We have carefully studied subject Motion for Reconsideration in the light of thegrounds assigned in support thereof vis--vis those interposed by the respondent in

its Opposition, and We are not prepared to reverse or set aside Our resolution of

dismissal.54

Further, the CA held:

Besides, even on the substantive aspect, We find no prima facie error committed

by the Office of the President in reaching its conclusion. Indeed, the petition is

patently without merit and the questions raised therein are too unsubstantial to

require consideration (Sec.8, Rule 43, Rules of Court).55

Issues

Petitioner has resorted to the present recourse and ascribes to the CA the following

errors:

I The HONORABLE Court of Appeals erred IN ISSUING THE RESOLUTION

DATED MAY 3, 2004 DENYING PETITIONERS MOTION FOR EXTENSION

DATED MAY 31, 2004 AND, CONSEQUENTLY, DISMISSING THE PETITION IN

CA-G.R. SP NO. 83179.
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Administrative Law


Respicio,

L.,

Tuballa,

L.

15

II The HONORABLE Court of Appeals erred IN ISSUING THE RESOLUTION DATED

JUNE 30, 2004 DENYING PETITIONERS MOTION FOR RECONSIDERATION (OF

THE MAY 3, 2004 RESOLUTION).

III The HONORABLE Court of Appeals erred IN FINDING NO PRIMA FACIE ERROR

COMMITTED BY THE OFFICE OF THE PRESIDENT IN SETTING ASIDE

PETITIONER SECS ORDER DATED AUGUST 15, 2002 (DENYINGRESPONDENTS REQUEST FOR RECONSIDERATION OF THE SEC ORDER

ASSESSING IT p12,000,000.00 AS FILING FEE FOR THE AMENDMENT OF ITS

ARTICLES OF INCORPORATION EXTENDING ITS CORPORATE LIFE).

(Underscoring supplied)56

Our Ruling

The appellate court committed no reversible error, much less grave abuse of

discretion, in issuing the questioned resolutions. Section 4 of Rule 43 of the Revised

Rules of Court57clearly states that an appeal shall be taken within fifteen (15) days

from the denial of petitioners motion for reconsideration.58

The same section also

provides that only one motion for reconsideration shall be allowed. It is unmistakablyclear that the appeal period must be reckoned from the date of the denial of the first

and only motion for reconsideration allowed by the rules. Petitioners fatal mistake

was to assume otherwise.

In appeals to the OP, Section 7 of AO No. 18 similarly proscribes filing more than one

motion for reconsideration. It states:

Decisions/resolutions/orders of the Office of the President shall, except as otherwise

provided for by special laws, become final after the lapse of fifteen (15) days from

receipt of a copy thereof by the parties, unless a motion for reconsideration thereof is

filed within such period.

Only one motion for reconsideration by any one party shall be allowed and

entertained, save in exceptionally meritorious cases.59(Emphasis supplied)

A second motion for reconsideration is a prohibited pleading. It is forbidden except for

extraordinarily persuasive reasons and only upon obtaining express leave.60

The facts and material dates are undisputed. The SEC filed a motion for

reconsideration before the OP on October 13, 2003. It was denied in a Resolution

dated December 19, 2003. The Commission received a copy of the Resolution on

January 8, 2004.

A second motion for reconsideration was filed by the SEC on January 23, 2004.

This was also denied by the OP through a Resolution dated March 19, 2004.

The SEC elevated the matter to the CA. On April 1, 2004, it initially filed a motion

for extension to file a petition for revie

admin law set 4

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