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873 Phil. 208
EN BANC
[ G.R. No. 225301, June 02, 2020 ]
THE DEPARTMENT OF TRADE AND INDUSTRY, REPRESENTED BY ITS SECRETARY, THE UNDERSECRETARY OF THE CONSUMER PROTECTION GROUP, MEMBERS OF THE SPECIAL INVESTIGATION COMMITTEE, AND THE DIRECTOR OF LEGAL SERVICE, PETITIONERS, VS. DANILO B. ENRIQUEZ, RESPONDENT.
DECISION
REYES, J. JR., J.:
This is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court, which seeks to annul the Decision[2] dated June 27, 2016 of the Regional Trial Court (RTC) of Quezon City, Branch 77, in Civil Case No.R-QZN-16-05101.
The Facts
Prompted by a news article[3] about corrupt practices in the issuance of importation clearances by an unnamed high-ranking officer of the Department of Trade and Industry (DTI), then DTI Secretary Adrian Cristobal, Jr. (Sec. Cristobal) instructed Consumer Protection Group Undersecretary Victorino Mario Dimagiba (Usec. Dimagiba) to conduct an investigation thereon.[4]
After acting upon said directive, Usec. Dimagiba issued a Memorandum[5] dated April 14, 2016, reporting his initial findings to Sec. Cristobal, finding unauthorized issuances of respondent Danilo B. Enriquez (Enriquez), then Fair Trade and Enforcement Bureau (FTEB) Director, with regard to certain importations. Pursuant to these findings, Usec. Dimagiba opined that there is sufficient basis to file administrative and/or criminal complaints against Enriquez, recommending, thus, that a full-blown investigation on all activities in Enriquez's office be conducted and that the latter be preventively suspended pending investigation.[6]
Thus, Sec. Cristobal issued Department Order (D.O.) No. 16-34[7] dated April 22, 2016, creating a Special Investigation Committee (SIC), mandated to conduct a full investigation on Enriquez. The D.O. also clothed the SIC the authority to issue a preventive suspension order, among others.
Learning about the SIC, Enriquez issued a Memorandum[8] dated May 2, 2016 addressed to Usec. Dimagiba, formally requesting clarification on the "unverified" findings of the preliminary investigation conducted against him and also formally demanding for the immediate release of said findings and/or report, invoking due process, fair play, and the higher interest of justice.
On even date, Enriquez issued another Memorandum,[9] addressed to Sec. Cristobal and the individual members of the SIC, questioning the regularity of the investigation conducted by Usec. Dimagiba, not only on the ground of want of authority, but also because the lack of opportunity to present countervailing evidence or counter-affidavit during said investigation.
On May 5, 2016, Enriquez issued another Memorandum,[10] also addressed to the SIC individual members, objecting to the proceedings conducted by the latter on the ground that it is the Office of the Ombudsman which has the disciplinary authority over him.
On May 6[11] and 12,[12] 2016, Enriquez issued separate memoranda, reiterating his objections to the validity of D.O. No. 16-34 with regard to the authority of the SIC to conduct investigation upon him and order preventive suspension against him.
On May 12, 2016, the SIC issued a "Show Cause Memorandum,"[13] directing Enriquez to explain in writing, within 48 hours from receipt, why no administrative charges should be filed against him with regard to Usec. Dimagiba's findings.
In response, Enriquez issued a Memorandum[14] dated May 18, 2016, maintaining his objections to the SIC's disciplinary authority over him, being a presidential appointee, holding a career and high-level position with Salary Grade "28."
On May 19, 2016, the SIC issued a Memorandum[15] stating that Enriquez did not give a responsive answer to the "Show Cause Memorandum" and as such, failed to present an explanation why no administrative case should be filed against him. Thus, the SIC found prima facie case against Enriquez and formally charged him with Gross Insubordination, Gross Misconduct/Gross Neglect of Duty, Grave Abuse of Authority, and Conduct Prejudicial to the Best Interest of the Service, stating therein the specific acts constituting the offenses, as well as the laws, rules and regulations alleged to be violated. Attached with said formal charge were pieces of documentary evidence substantiating the charges. Enriquez was also ordered to file an answer to the formal charge within 72 hours. The SIC further placed Enriquez on preventive suspension for a period of 90 days effective immediately upon receipt of said Memorandum.
On May 23, 2016, Enriquez filed a Protest and Answer Ex Abudante Cautelam,[16] specifically denying the charges against him and maintaining his objection to the SIC's authority to conduct investigations and order his preventive suspension.
Enriquez also filed a Petition for Certiorari, Prohibition, and Mandamus with Very Extreme Urgent Prayer for the Issuance of a Status Quo Ante Order and Temporary Restraining Order (TRO) and a Writ of Preliminary Injunction[17] before the RTC against Sec. Cristobal, Usec. Dimagiba, and the members of the SIC (collectively, petitioners).
In the main, Enriquez's petition was grounded upon the lack of disciplinary jurisdiction of Sec. Cristobal, and consequently the SIC as well, over him, being a presidential appointee occupying a high-ranking position with Salary Grade "28." Enriquez averred that it is the Presidential Anti-Graft Commission (PAGC) which has the authority and jurisdiction to investigate, hear, and decide administrative cases against a presidential appointee occupying a director position with Salary Grade "28." Enriquez invoked Executive Order (E.O.) No. 12, as amended by E.O. No. 531 and E.O. Nos. 531-A and 531-B.
Enriquez also argued that the investigation conducted by Usec. Dimagiba, as well as the resulting creation of the SIC and its order of preventive suspension, are acts of oppression and clear abuse of authority, which violated his right to due process.
Hence, Enriquez prayed that D.O. No. 16-34 and all the Memoranda issued by Usec. Dimagiba and the SIC relative to the investigation/s against him, be nullified; that petitioners be ordered to restrain from further continuing with the administrative disciplinary proceedings against him; and that a memorandum be issued stating that petitioners do not have jurisdiction over administrative cases involving presidential appointees and the proper remedy or referral of the case to the appropriate authority.[18]
Petitioners, through the Office of the Solicitor General (OSG), countered that the RTC has no jurisdiction over the petition. Petitioners argued that the petition involves the DTI Secretary's exercise of its quasi-judicial function in an administrative disciplinary proceeding. Hence, according to the petitioners, a review thereof is within the jurisdiction of the Court of Appeals (CA) pursuant to Section 4, Rule 65 of the Rules of Court. Petitioners further argued that they have disciplinary jurisdiction over Enriquez, which include the authority to investigate and designate a committee to conduct such investigation, invoking Section 7(5), as well as Section 47(2) and (3), Chapter 2, Book IV and Section 51, Chapter 6, Book V of E.O. No. 292 or the Administrative Code of 1987. Petitioners further averred that due process was observed in the exercise of their disciplinary authority over Enriquez.[19]
In its June 27, 2016 Decision, the RTC ruled in favor of Enriquez as follows:
This Petition was then filed. Petitioners argue, in the main, that the DTI Secretary has disciplinary jurisdiction, which includes the authority to investigate and to designate a committee for such purpose, over subordinates though they may be presidential appointees such as Enriquez. Petitioners also question the RTC's jurisdiction to review the questioned act/s of the DTI Secretary and the SIC through a petition for certiorari, prohibition, and mandamus. Further, petitioners maintain that, contrary to Enriquez's claim, due process of law was observed in the process of investigation.
In his Comment/Opposition with Leave (Re: Petition for Review on Certiorari),[21] Enriquez argues that the expiration of the term of his office has rendered the instant petition moot and academic.
In their Reply,[22] petitioners, through the OSG, argue that Enriquez's separation from service does not render the instant petition moot and academic considering that administrative proceedings or investigations commenced against a public officer is not mooted upon the latter's subsequent separation from service as accessory penalties may still be imposed against erring public officials. Put differently, petitioners posit that Enriquez's separation from service only rendered moot the imposition of the penalty of dismissal, not the administrative proceedings or investigations against him. Hence, according to petitioners, the review of the instant Petition, which is rooted from the petition filed by Enriquez before the RTC, cannot be mooted by the latter's separation from service.
In their Memorandum,[23] thus, petitioners raise the additional issue of whether or not the petition was rendered moot and academic due to Enriquez's separation from office. On the other hand, in his Memorandum, Enriquez argues that his right to due process of law was violated when he was investigated upon by a committee which has no authority to investigate, hear, and decide administrative cases over him, who is a presidential appointee with Salary Grade "28." Enriquez insists that it is the PAGC, not the DTI Secretary or the committee he designated, which has disciplinary authority over him pursuant to E.O. No. 12, as amended.
The Issues
I. Does the Department Secretary have disciplinary jurisdiction over a presidential appointee?
II. Did the RTC err in giving due course to the petition for certiorari, prohibition, and mandamus?
III. Is the petition rendered moot and academic by the expiration of Enriquez's term of service?
The Court's Ruling
I.
The DTI Secretary has authority to investigate, as well as to designate a committee or an officer for such purpose, a bureau director who is a presidential appointee such as Enriquez.
In ruling against the authority of the DTI Secretary to proceed in the administrative investigation of Enriquez, the RTC reasoned as follows:
The Court cannot subscribe to this interpretation.
Disciplinary Authority of the Department Secretary under the Administrative Code
The administrative structure of our government is laid down in the Administrative Code of 1987. Indeed, pursuant to Section 1, Article VII of the 1987 Constitution, Section 11, Chapter 3, Book II of the Administrative Code provides that the executive power shall be vested in the President of the Philippines. Needless to say, not every task in the executive department can be undertaken by the President and its office. Hence, the Administrative Code provides for the organization and maintenance of several departments as are necessary for the functional distribution of the work of the President.[25] Each department shall have jurisdiction over bureaus, offices, regulatory agencies, and government-owned or -controlled corporations assigned to it by law.[26] The authority and responsibility for the exercise of the mandate of the Department and for the discharge of its powers and functions shall be vested in the Secretary, who shall have supervision and control of the Department.[27]
Section 7, Chapter 2, Title III, Book IV of the Administrative Code further provides for the powers and functions of the Department Secretary, viz.:
Power to Impose Penalty vis-a-vis Power to Investigate
The distinction between presidential and non-presidential appointees becomes relevant only with respect to the Department Secretary's "power to impose penalties" and "power to investigate."
The Revised Rules on Administrative Cases in the Civil Service (RRACCS),[28] as well as the 2017 Rules on Administrative Cases in the Civil Service (RACCS)[29] which superseded the RRACCS, provide the distinction for the disciplinary jurisdiction of the department heads and secretaries. Said rules provide for the disciplinary powers that the CSC and the department heads and secretaries have over non-presidential appointees.
Section 9 of the RRACCS, the applicable rules during Enriquez's service, provides that the department secretaries have original concurrent jurisdiction with the CSC over cases cognizable by the latter, viz.:
For presidential appointees, the power to impose penalty resides with the President pursuant to his power of control under the Constitution[31] and the Administrative Code.[32] Likewise, the Ombudsman, under the Constitution[33] and Republic Act (R.A.) No. 6770,[34] was given such power to impose penalties. Certainly, concomitant to such disciplinary authority is the power to investigate and to designate a committee or officer to conduct such investigation pursuant to Section 7(5), Chapter 2, Title III, Book IV of the Administrative Code above-cited, as well as the relevant provisions of R.A. No. 6770. In fine, the power to impose penalty necessarily includes the power to investigate. Contrarily, the power to investigate does not necessarily include the power to impose penalty.
While the power to impose penalty remains with the President or the Ombudsman, the power to investigate, as well as to designate a committee or officer to investigate, and thereafter to report its findings and make recommendations, may be delegated to and exercised by subordinates or a special commission or committee specifically created for such purpose. Stated more specifically, while it is the President as the Chief Executive, or the Ombudsman as mandated by law, who has the authority to impose penalty upon erring presidential appointees, it does not preclude said disciplining authorities from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to them the facts, on the basis of which the President or the Ombudsman, as the case may be, make their decision. It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law.[35]
Such delegation of the power to investigate presidential appointees is precisely what was accomplished when E.O. No. 292 or the Administrative Code was signed into law by then revolutionary government President Corazon C. Aquino using her transitory powers, as well as when E.O. Nos. 151, 268, 12, as amended, 13, and 43 were issued by the respective subsequent Chief Executives.
As above-stated, the Administrative Code expressly provides for the Department Secretary's power to investigate and to designate a committee or officer for such purpose. In the same vein, in 1994, President Fidel V. Ramos issued E.O. No. 151,[36] creating the Presidential Commission Against Graft and Corruption (PCAGC), which was specifically tasked to investigate presidential appointees charged with graft and corruption. PCAGC was then abolished and repealed under President Joseph Ejercito Estrada's administration in 2000, through E.O. No. 268,[37] which created the National Anti-Corruption Commission (NACC) and given the powers of an investigating body over charges of graft and corrupt practices against presidential and non-presidential appointees alike. The NACC, however, was never activated. Hence, E.O. No. 12,[38] as amended, under President Gloria Macapagal-Arroyo, abolished both PCAGC and NACC, and created the Presidential Anti-Graft Commission (PAGC), which likewise has the authority to investigate or hear administrative cases or complaints against all presidential appointees. In 2010, under President Benigno Simeon C. Aquino III's administration, the PAGC was abolished and its investigative, adjudicatory, and recommendatory functions were transferred to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) through E.O. No. 13.[39]
At present, President Rodrigo R. Duterte issued E.O. No. 43[40] in 2017, creating the Presidential Anti-Corruption Commission (PACC) "to directly assist the President in investigating and/or hearing administrative cases primarily involving graft and corruption against all presidential appointees classified as Salary Grade '26' and higher."[41] The powers, duties, and functions of the ODESLA were effectively transferred to PACC. PACC also has the authority to recommend to the President the issuance of an order of preventive suspension under the circumstances provided in E.O. No. 43.[42] Notably, its investigative and adjudicatory authority over said class of employees is concurrent with the Ombudsman.[43]
In sum, it bears stressing that the disciplinary jurisdiction of the department secretary over presidential appointees is limited. As above-stated, the power to investigate does not include the power to impose penalty. It has long been settled that the power to decide on such disciplinary matters and impose penalty upon said category of officers remains with the appointing authority.
As held in Baculi v. Office of the President,[44] while the Administrative Code has vested the Department Secretary with the authority to investigate matters involving a presidential appointee, Section 38 of Presidential Decree (P.D.) No. 807[45] or the Civil Service Decree of the Philippines, which was exactly echoed in Section 48, Chapter 7, Title I-A, Book V of the Administrative Code, has drawn a definite distinction between subordinate officers or employees who are presidential appointees and those who are non-presidential appointees with regard to the authority to decide on the disciplinary matter. Said provisions speak of the procedure in administrative cases against non-presidential appointees before the CSC as the latter has no disciplinary authority over presidential appointees. The Court explained that this is so because substantial distinctions set presidential appointees apart from non-presidential appointees. One of such distinctions is that presidential appointees come under the direct disciplining authority of the President pursuant to the well-settled principle that, in the absence of a contrary law, the power to remove or to discipline is lodged in the same authority in whom the power to appoint is vested.[46]
The principle finds basis in the Constitutional grant of power upon the President to appoint such officials as provided in the Constitution and laws.[47] Full discretion is, therefore, given to the President to remove his appointees. Unless otherwise provided by the Constitution, such concomitant power of the appointing authority to remove cannot be attenuated by allowing even his alter ego to discipline and worse, to remove the former's appointee, lest the executive department would be put into a precarious situation where the very person particularly chosen by the President will be removed by his own subordinate without his prior express conformity. Thus, even the doctrine of qualified political agency cannot be used to grant the department heads the power to impose penalty upon erring subordinates who are presidential appointees without prior approval of the President.
This doctrine of qualified political agency or the alter ego doctrine was introduced in our jurisdiction in the landmark case of Villena v. The Secretary of Interior.[48] The Court explained that said doctrine essentially postulates that the heads of the various executive departments are the alter egos of the President and, as such, the actions taken by them in the performance of their official duties are deemed the acts of the President unless the latter disapproves such acts.[49] In said case, the Secretary of Interior investigated then Makati City Mayor Jose D. Villena (Mayor Villena) and found him guilty of bribery, extortion, and abuse of authority. Upon such finding, the Secretary of Interior recommended to the President the suspension from office of Mayor Villena. Upon approval by the President of such recommendation, the Secretary of Interior implemented the suspension. Mayor Villena then questioned his suspension, arguing that the Secretary of Interior had no authority to suspend him from office considering that there was no law granting such power to the Secretary of Interior. According to Mayor Villena it was solely the President who was empowered to discipline local government officials. The Court in said case disagreed with the mayor and upheld his suspension, ruling that the alter ego doctrine justified the suspension ordered by the Secretary of Interior. As can be readily gleaned from this case, even with the doctrine of qualified political agency, the Court upheld the Secretary of Interior's act of imposing penalty considering that the President had already approved the Secretary's recommendation to suspend the mayor. In fine, prior conformity of the President was still necessarily secured.
In Spouses Constantino v. Hon. Ciusia,[50] while the Court upheld the Secretary of Finance's act of executing a debt-relief contract by virtue of the doctrine of qualified political doctrine, among others, the Court included in its disquisition an important qualification, i.e., the Secretary of Finance or any designated alter ego of the President is still bound to secure the latter's prior consent to or subsequent ratification of his acts.
Precisely, this explains the necessity of forwarding the Department Secretary's findings and recommendation to the President with regard to administrative cases against presidential appointees. Granting the Department Secretary the power to impose penalty without the President's prior express conformity would result to a circuitous situation wherein the removal or any action effected by the Department Secretary may later on be countermanded by the President at any time.
Then again, to be clear, this does not prevent the Department Secretary from conducting investigations and forwarding their findings and recommendations to the President for approval. In the alternative, their findings may also be forwarded to the PACC for further investigation and recommendation to the President, or to the Ombudsman in applicable cases.
At this juncture, it is imperative to note that the present case merely involves the DTI Secretary's act of ordering the conduct of an initial investigation on the issues raised against Enriquez; creating and authorizing the SIC to conduct a full investigation thereon; and, of filing a formal charge against Enriquez upon its finding of a prima facie case against the latter. There is no imposition of penalty, much less order of dismissal, from the DTI Secretary involved in this case. Hence, as Sec. Cristobal merely exercised his power to investigate and designate an officer and/or committee to investigate his subordinate pursuant to the Administrative Code, his actions, as well as the resulting report from such investigation should be validly sustained absent any finding of irregularity in the conduct thereof.
Inasmuch as such power to investigate was given to the aforesaid Commissions, the power given to the Department Secretary to investigate and to designate a committee or officer to investigate a subordinate, who may be a presidential or non-presidential appointee, cannot likewise be denied.[51] The investigative and recommendatory authority of the fact-finding Commissions under the above-cited executive orders are by no means exclusive and, thus, can be shared with any officer or agency likewise tasked to investigate and recommend findings and conclusions.
Therefore, in the absence of a law or legal justification prohibiting the Department Secretary to conduct its own investigation on its subordinates, such power of the Department Secretary to investigate, even a presidential appointee, under the Administrative Code, should then be upheld.
Furthermore, E.O. No. 151 and the subsequent E.O.s above-cited, or "E.O. No. 13 and its allied E.O.s" as referred to by the RTC in its assailed Decision, could not have repealed the Administrative Code, contrary to the RTC's conclusion.
Foremost, an executive order cannot repeal a law. Ordinarily, since both the Administrative Code and E.O. No. 13 and "its allied E.O.s" are all presidential issuances, one may repeal or otherwise alter, modify or amend the other, depending on which comes later. The intricacy of this case, however, is owed to the fact that E.O. No. 292 or the Administrative Code was signed into law by President Corazon C. Aquino, not merely as an executive act, but in the exercise of her transitory legislative powers under the Freedom Constitution. Section 6, Article XVIII of the 1987 Constitution states that "[t]he incumbent President shall continue to exercise legislative powers until the first Congress convened." The Administrative Code was signed into law on July 25, 1987, or two days before the first Congress convened on July 27, 1987. Hence, having been issued by the President in the exercise of her extraordinary power of legislation during the transition from the authoritarian regime to the revolutionary government, the Administrative Code is not merely an executive order which has the force and effect of law, but is actually a law.[52]
Moreover, basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in accordance with the legal maxim "interpretare et concordare leges legibus est optimus interpretandi modus."[53]
A careful perusal of the invoked executive orders clearly reveals no incongruity with the Administrative Code. As discussed above, the creation and reorganization of the investigative and recommendatory Commissions/Office through said executive orders, do not indicate any intention to totally remove the Department Secretary's power to investigate over his subordinates who are presidential appointees. None of the executive orders provides for an express exclusionary provision that removes such power to investigate from the Department Secretary as provided under the Administrative Code. Thus, said executive orders neither supersede nor conflict with the Administrative Code which allows the Department Secretary to investigate his subordinates, may they be presidential appointees or non-presidential appointees. It is, therefore, flawed to argue and conclude that said executive orders granted the investigative Commissions the exclusive jurisdiction to investigate presidential appointees.
The fact that no appeal can be made to the CSC from the findings of the Department Secretary and/or the committee which was designated to conduct the investigation on a presidential appointee, cannot be validly used as a ground to divest the Department Secretary of his statutory authority to exercise such power to investigate, contrary to the RTC's conclusion.
Indeed, as discussed above, the CSC has no disciplinary authority over presidential appointees. Hence, it has neither original nor appellate jurisdiction over disciplinary cases against presidential appointees. Contrary, however, to the court a quo's interpretation, such "void in the appeal process" is the logical consequence of the principle that an appeal may be taken only from a judgment or final order unless otherwise provided by law or executive order. A final judgment or order is one that finally disposes of a case, leaving nothing more to do for the proper authority vested by law to finally decide on the matter.[54]
In the exercise of the Department Secretary's power to investigate presidential appointees, no element of finality characterizes his findings and report considering that from the nature of such power delegated to him, his findings and report are merely recommendatory for the President's consideration. Hence, an appeal is naturally not an available remedy from the Department Secretary's findings and recommendation.
Nevertheless, there is no logical, much less legal and jurisprudential basis, to conclude that such unavailability of appeal from the findings and recommendations of the Department Secretary is a ground to divest the latter of the investigative and recommendatory authority granted to him by law over presidential appointees.
Once again contrary to the RTC's ruling, to uphold the authority of the Department Secretary to investigate his subordinate who may be a presidential appointee is not to undermine the President's power of control as the Chief Executive. Since the Department Secretary's exercise of disciplinary power is merely investigative and recommendatory, the President retains the power to alter or modify, or even nullify or set aside the former's findings and recommendation, and to substitute his judgment to that of the former. This is precisely the concept of the power of control in administrative law. This is likewise in consonance with the doctrine of qualified political agency as explained above.
The RTC's conclusion that the power to investigate presidential appointees was removed from the Department Secretary and directly assumed by the President through its power of control not only lacks legal basis, but also practical consideration. No benefit can be had if we rule for the removal of the power to investigate presidential appointees from the Department Secretary because, at any rate, the President may still delegate such power to the Department Secretary, being his subordinate, to assist him in the investigative function. We must keep in mind that the grant of administrative power over the executive department to the President is surely always grounded upon the consideration of fixing a uniform standard of administrative efficiency to enable him to discharge his duties as Chief Executive effectively.[55]
The power of the Department Secretary to investigate his subordinates being established, such power necessarily includes the authority to impose preventive suspension.
Preventive suspension is authorized under the Administrative Code, viz.:
The pronouncement of the Court in the case of Vivo v. Philippine Amusement and Gaming Corporation[59] on this matter is on point, viz.:
Clearly, Enriquez could not dispute the observance of his right to due process by petitioners as herein set forth.
II.
The RTC erred in giving due course to the petition for certiorari, prohibition, and mandamus.
The assailed RTC Decision, as well as the present petition, dealt with the issue of which between the RTC and the CA has jurisdiction over the petition for certiorari, prohibition, and mandamus filed against the DTI Secretary and the SIC under Section 4, Rule 65 of the Rules of Court. Said provision states:
We agree with petitioners' assertion that the RTC erred in giving due course to Enriquez's petition for certiorari, prohibition, and mandamus, albeit for a different reason.
Petitions for certiorari and prohibition under Rule 65 of the Rules of Court have long been used as remedies to keep lower courts within the confines of their granted jurisdictions. The 1987 Constitution, however, introduced the "expanded" scope of judicial power. Thus, Section 1, Article VIII thereof provides:
One of the material distinctions is the cited ground. A certiorari petition under Rule 65 of the Rules of Court speaks of lack or excess of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction, while the remedy under the court's expanded jurisdiction expressly mentions only grave abuse of discretion amounting to lack or excess of jurisdiction. The distinction is apparently not legally significant as to what remedy should be resorted to, traditional or expanded, when the case involves an action with grave abuse of discretion. When, however, lack of jurisdiction is involved, no consideration is made as to how the government entity exercised its function. Indeed, no discretion is allowed in areas outside of an agency's granted authority.[62]
Certainly, before a court could take cognizance of a case filed before it, it should primarily determine the ground on which its jurisdiction is being invoked. It is, thus, imperative to look into the ground upon which the petition is based. In this case, Enriquez alleged lack of jurisdiction on the part of the DTI Secretary and the SIC over him in filing the certiorari petition. Thus, the traditional certiorari mode under Rule 65 of the Rules of Court should be Enriquez's remedy.
However, another distinction between the traditional certiorari petition under Rule 65 of the Rules of Court and certiorari pursuant to the expanded jurisdiction under Section 1(2), Article VIII of the Constitution is equally relevant in this case. Aside from the cited ground, another critical question comes up and that is, under what capacity did the respondent-agency act?
In order that a special civil action for certiorari under Rule 65 may be invoked, the petition must be directed against any tribunal, board, or officer exercising judicial or quasi-judicial functions, which acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no plain, speedy, and adequate remedy in the ordinary course of law.[63]
Similarly, a petition for prohibition may be filed by an aggrieved person against a tribunal, corporation, board, officer or person, exercising judicial, quasi-judicial, or ministerial functions, which were done without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is likewise no plain, speedy, and adequate remedy in the ordinary course of law, praying that judgment be rendered commanding the respondent to desist from further proceedings in the subject action or matter, or otherwise, for the grant of such incidental reliefs as law and justice may require.[64]
A petition for mandamus, on the other hand, is a remedy available only when a tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no plain, speedy and adequate remedy in the ordinary course of law.[65] The main objective of mandamus is to compel the performance of a ministerial duty on the part of the respondent.[66]
In other instances, the petition must be filed based on the court's expanded jurisdiction.[67]
It is important, thus, to determine the nature of the questioned act/s to determine the available and proper remedy under the law.
It bears stressing that what is being assailed in this case is the Department Secretary's exercise of his power to investigate a subordinate. The Department Secretary's limited disciplinary authority being assailed herein involves a function which is not judicial, quasi-judicial, nor ministerial in nature for his act to be the proper subject of certiorari, prohibition, or mandamus. He is not clothed with power to adjudicate and impose a penalty with regard to administrative disciplinary actions against subordinates who are presidential appointees as above-discussed. His function is merely investigative and recommendatory, which is purely executive or administrative.
Quasi-judicial or administrative adjudicatory power is that which vests upon the administrative agency the authority to adjudicate the rights of persons before it. It involves the power to hear and determine questions of fact and, after such determination, to decide in accordance with the standards laid down by law issues which arise in the enforcement and administration thereof. In the performance of a quasi-judicial, and of course judicial, acts, there must be a law that gives rise to some specific rights of persons or property from which the adverse claims are rooted, and the controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with power and authority to determine the law and adjudicate the right of the contending parties.
Neither is there a ministerial duty involved in this case which may be compelled to be done through mandamus. While Enriquez was temporarily excluded from his office pending investigation, the remedy of mandamus is not available to compel the investigating officer or committee to lift the order of preventive suspension as the same is authorized by law pending investigation, unless such suspension exceeded the period of 90 days for non-presidential employees, or the period of suspension for presidential employees became unreasonable as the circumstances of the case may warrant.[68]
Hence, the petition for certiorari, prohibition, and mandamus was not proper, whether it be filed before the RTC or the CA.
III.
This Petition is not rendered moot and academic by the termination of Enriquez's service.
Having established the DTI Secretary's investigative and recommendatory disciplinary authority over Enriquez, we cannot subscribe to the latter's argument that the petition should be dismissed for becoming moot and academic due to his separation from service.
A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case.[69] The instant case is not mooted by Enriquez's separation from service considering that the administrative case against him before the DTI is not mooted by such cessation of service. It must be pointed out that prior to the termination of his term of office, a formal charge for Gross Insubordination, Gross Misconduct/Gross Neglect of Duty, Grave Abuse of Authority, and Conduct Prejudicial to the Best Interest of the Service had already been filed after a determination of a prima facie case against him upon the conclusion of SIC's preliminary investigation. The disquisition of the Office of the President in Administrative Order (A.O.) No. 67, Series of 2003[70] is relevant to the issue and instructive:
Conclusion
Public office is a public trust and public officers and employees must, at all times, be accountable to the people.[71] Hence, the State must be vigilant to preserve the inviolability of public office. Every initiative to cleanse the roster of public employees and officials must be upheld so long as said efforts are exercised within the bounds of law. In this case, pursuant to the foregoing legal considerations, it is established that the Department Secretary's exercise of the power to investigate and to designate a committee or officer for such purpose, a subordinate, whether the latter be a non-presidential or presidential appointee, is well-founded in law and jurisprudence.
WHEREFORE, premises considered, the Petition is GRANTED. The Decision of the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. R-QZN-16-05101 is hereby REVERSED and SET ASIDE. Accordingly, the Department of Trade and Industry is ORDERED to proceed with dispatch with its investigation on Danilo B. Enriquez's administrative case. Thereafter, the Secretary of the Department of Trade and Industry may forward his findings and recommendations to the Office of the President for the imposition of the proper penalties, as may be warranted.
SO ORDERED.
Peralta, C. J., Gesmundo, Hernando, Carandang, Inting, Lopez, and Gaerlan, JJ., concur.
Perlas-Bernabe, J., Please see separate Concurring Opinion.
Leonen J., See separate concurring opinion.
Caguioa, J., See Concurring and Dissenting Opinion.
Lazaro-Javier, J., Please see Concurring and Dissenting Opinion.
Zalameda, J., with separate Concurring Opinion.
Delos Santos, J., on leave.
[1] Rollo, pp. 59-110.
[2] Penned by Acting Presiding Judge Cleto R. Villacorta III; id. at 175-201.
[3] Philippine Star, April 3, 2016, "Curse of the Haciendero Presidents" by Cito Beltran under his column "Ctalk"; id. at 202-203.
[4] Id. at 559-560.
[5] Id. at 206-209.
[6] Id. at 561-563.
[7] Id. at 210-211.
[8] Id. at 212-213.
[9] Id. at 214-216.
[10] Id. at 217-218.
[11] Id. at 219-220.
[12] Id. at 221-223.
[13] Id. at 224.
[14] Id. at 226-233.
[15] Id. at 234-237.
[16] Id. at 287-291.
[17] Id. at 253-285.
[18] Id. at 284-285.
[19] Id. at 454-493.
[20] Id. at 201.
[21] Id. at 509-511.
[22] Id. at 524-533.
[23] Id. at 558-618.
[24] Rollo, pp. 448-450.
[25] Executive Order No. 292 (1987), Book IV, Chapter 1, Sec. 1.
[26] Id. at Sec. 4.
[27] Id. at Chapter 2, Sec. 6.
[28] The Civil Service rules applicable during Enriquez's tenure. Promulgated on November 8, 2011.
[29] Promulgated on July 3, 2017.
[30] RRACCS, Sec. 4(h) and RACCS, Section 4(j).
[31] CONSTITUTION, Art. VII, Sec. 17.
[32] Executive Order. No. 292 (1987), Book 111, Title 1, Chapter 1, Sec. 1.
[33] CONSTITUTION, Art. XI, Sec. 13.
[34] Republic Act No. 6770 (1989), Sec. 25.
[35] See American Tobacco Company v. Director of Patents, 160-A Phil. 439, 446 (1975).
[36] CREATING A PRESIDENTIAL COMMISSION TO INVESTIGATE ADMINISTRATIVE COMPLAINTS INVOLVING GRAFT AND CORRUPTION. Signed on January 11, 1994.
[37] CREATING THE NATIONAL ANTI-CORRUPTION COMMISSION AND ABOLISHING THE PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION CREATED UNDER EXECUTIVE ORDER 151, S. 1994, AS AMENDED. Signed on July 18, 2000.
[38] CREATING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES, AND FUNCTIONS AND FOR OTHER PURPOSES. Signed on April 16, 2001.
[39] ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORY AND RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE PRESIDENT. Signed on November 15, 2010.
[40] CREATING THE PRESIDENTIAL ANTI-CORRUPTION COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES AND FUNCTIONS, AND FOR OTHER PURPOSES. Signed on October 4, 2017.
[41] Executive Order No. 43 (2017), Sec. 5.
[42] Id. at Sec. 6.
[43] Id.
[44] 807 Phil. 52 (2017).
[45] PROVIDING FOR THE ORGANIZATION OF THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH PROVISIONS OF THE CONSTITUTION, PRESCRIBING ITS POWERS AND FUNCTIONS AND FOR OTHER PURPOSES. Enacted on October 6, 1975.
[46] Baculi v. Office of the President, supra note 44, at 64.
[47] CONSTITUTION, Art. VII, Sec. 16; Executive Order No. 292 (1987), Book III, Title I, Chapter 5, Sec. 16.
[48] 67 Phil. 451 (1939).
[49] Atty. Manalang-Demigillo v. Trade and Investment Development Corporation of the Philippines, 705 Phil. 331, 347-348 (2013).
[50] 509 Phil. 486 (2005).
[51] See Hon. Joson v. Executive Secretary Torres, 352 Phil. 888, 914 (1998).
[52] See Philippine Association of Service Exporters, Inc. (PASEI), v. Hon. Torres, 296-A Phil. 427, 432 (1993).
[53] "To interpret and harmonize laws is the best method of interpretation." Civil Service Commission v. Court of Appeals, 696 Phil. 230, 259 (2012).
[54] See Spouses Mendiola v. Court of Appeals, 691 Phil. 244, 261 (2012).
[55] See Review Center Association of the Philippines v. Executive Secretary Ermita, 602 Phil. 342, 366 (2009), citing Ople v. Torres, 354 Phil. 948 (1998).
[56] Executive Order No. 292 (1987), Book V, Chapter 4, Sec. 51.
[57] 106 Phil. 1031 (1960).
[58] Dra. Buenaseda v. Secretary Flavier, 297 Phil. 719, 727-728 (1993).
[59] 721 Phil. 34, 39-40 (2013).
[60] 460 Phil. 830 (2003).
[61] 802 Phil. 116 (2016).
[62] Id. at 143.
[63] RULES OF COURT, Rule 65, Sec. 1.
[64] Id. at Sec. 2.
[65] Id. at Sec. 3.
[66] Spouses Dacudao v. Secretary Gonzales, 701 Phil. 96, 110 (2013).
[67] Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. Department of Health, supra note 61, at 142.
[68] Baculi v. Office of the President, supra note 44, at 71.
[69] Office of the Ombudsman v. Andutan, Jr., 670 Phil. 169, 186 (2011), citing Pagano v. Nazarro, Jr., 560 Phil. 96, 105 (2007).
[70] Imposing the Penalty of Fine Equivalent to Six Months Salary on Atty. Fidel H. Borres, Jr., Provincial Agrarian Reform Adjudicator, Agusan del Norte.
<http://www.officialgazette.gov.ph/2003/03/31/administrative-order-no-67-s-2003/> (visited June 1, 2020)
[71] Office of the Ombudsman and the Fact-Finding Investigation of the Bureau (FFIB), Office of the Ombudsman for the Military and other Law Enforcement Officers (MOLEO) v. PS/Supt. Espina, 807 Phil. 529, 546 (2017).
PERLAS-BERNABE, J.:
Unless otherwise delegated, a Department Secretary cannot exercise complete and full disciplinary authority over a subordinate department official who is, at the same time, a presidential appointee on the ground that he is an alter ego of the President. Barring due delegation, the Secretary's power is limited to investigation and recommendation, which findings he may forward to the President for his approval/disapproval and consequently, the imposition of the appropriate penalty.
To explain, while the Administrative Code authorizes Department Secretaries to "[e]xercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation,"[1] and provides that they shall have "jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction,"[2] these powers are circumscribed by the rule that: "[p]residential appointees come under the direct disciplining authority of the President. This proceeds from the well-settled principle that, in the absence of a contrary law, the power to remove or to discipline is lodged in the same authority on which the power to appoint is vested."[3]
However, it should be clarified that the direct disciplinary authority of the President does not divest Department Secretaries of their power to conduct investigations, and incidental thereto, preventively suspend presidential appointees within their department. In order to harmonize the principles and provisions of law, Department Secretaries are only bereft of the power to impose penalties, but not the power to investigate. This has already been recognized by the Court in Baculi v. Office of the President (Baculi)[4] as well as in Department of Health v. Camposano (Dept. of Health).[5]
In Baculi, therein petitioner Francisco T. Baculi (Baculi), a presidential appointee under the Department of Agrarian Reform (DAR), was investigated by the DAR Secretary through the Regional Investigating Committee (RIC) for certain irregular contracts. Finding a prima facie case against Baculi based on the RIC reports, the DAR Secretary filed a formal charge against him before the DAR Legal Affairs Office. He was eventually found guilty and was dismissed from service. On appeal, the Court of Appeals nullified the order of dismissal for lack of authority, and instead, directed the DAR Secretary to forward his findings and recommendations to the President, who all the same ordered the dismissal of Baculi. Baculi questioned the validity of the dismissal as it was based on a void report given that the RIC had no jurisdiction to investigate a presidential appointee such as himself. However, the Court affirmed Baculi's dismissal by the President. It held that "Baculi, as a presidential appointee, came under the disciplinary jurisdiction of the President in line with the principle that the 'power to remove is inherent in the power to appoint.' As such, the DAR Secretary held no disciplinary jurisdiction over him." Nevertheless, it upheld the validity of the RIC report finding that "[i]n the absence of a law or administrative issuance barring the DAR-RIC from conducting its own investigation of Baculi even when there was no complaint being first filed against him, the eventual report rendered after investigation was valid."[6]
Meanwhile, in Dept. of Health, the Court held that:
Here, the DTI Secretary, through the Special Investigation Committee (SIC), had already commenced investigation proceedings against respondent as early as April 2016. In fact, respondent was already served with a "Formal Charge with Preventive Suspension" on May 20, 2016,[10] through which he was officially notified of the charges against him, placed in preventive suspension, and directed to file an answer, which he later did.[11] These incidents all occurred before June 30, 2016, or the date when he ceased from office. In the Supreme Court, the rule is that the administrative complaint must first be docketed prior to the respondent's cessation from office; otherwise, jurisdiction is lost.[12] However, in this instance, a Formal Charge filed by the investigating committee signifies the institution of the complaint. In Baculi, the Court observed that the formal charge filed by the Department of Agrarian Reform — Regional Investigating Committee, which is similar to the SIC in this case, "became the administrative complaint contemplated by law."[13] Hence, based on the foregoing, the case has not been rendered moot and academic.
In fine, considering the limited power of a Department Secretary over a subordinate official within his department who is, at the same time, a presidential appointee as herein discussed, I vote to grant the petition but only in part, the reasons for which shall be discussed below.
To recount, records show that the Regional Trial Court (RTC), in a Decision[14] dated June 27, 2016: (a) nullified the formal charges against respondent; (b) enjoined the SIC from hearing and adjudicating the charges against respondent; and (c) ordered petitioners to restore respondent to his post. In so ruling, the RTC held that petitioner DTI Secretary Cristobal had no disciplinary authority over respondent, considering that, as a presidential appointee, the latter fell under the direct disciplinary authority of the President, who, at that time, had delegated the authority to investigate, hear, and decide administrative cases against all presidential appointees in the Executive Branch with at least a Salary Grade of "26" to the ODESLA-IAD.[15] Petitioners assailed the aforesaid RTC Decision, arguing that "[t]he exercise of administrative disciplinary authority throughout the Executive Branch is among the multifarious functions of the Chief Executive that may be performed by the Secretaries over their respective Departments in the regular course of business, which may be presumed as acts of the Chief Executive, unless disapproved or reprobated by him."[16] Further, the petition states that "Department Secretaries must have the power, as an alter ego of the President, to act upon erring officers and employees under them."[17] In their petition, petitioners did not qualify or distinguish between the Department Secretary's power to investigate and recommend vis-a-vis the power to impose a penalty. In fact, it appears that petitioners argue for full and complete disciplinary authority of a Department Secretary over a subordinate department official albeit appointed by the President based on the alter ego doctrine. As explained in this Opinion, there is a crucial distinction between the power to investigate and recommend vis-a-vis the power to impose a penalty. This was not accounted for in the petition; hence, it should only be partly granted. Accordingly, the ultimate conclusion is that the RTC Decision must be reversed and set aside insofar as it failed to recognize the limited power of the Department Secretary to investigate and recommend. In this limited respect, the investigation against respondent is valid and hence, allowed to proceed. The resulting findings and recommendations may then be forwarded to the President, through the Office of the President, who has the power to impose penalties against his appointees.
[1] Paragraph 5, Section 7, Chapter 2, Book IV of Executive Order No. (EO) 292, entitled "INSTITUTING TUB 'ADMINISTRATIVE CODE OF 1987'" (July 25, 1987).
[2] Paragraph 2, Section 47, Chapter 7, Book V of EO 292.
[3] Pichay, Jr. v. Office of the Deputy Executive Secretary for Legal Affairs-IAD, 691 Phil. 624, 645 (2012). See also Baculi v. Office of the President, 807 Phil. 52, 73 (2017), supra; Larin v. Executive Secretary, 345 Phil. 962, 983 (1997); and Office of the President v. Cataquiz, 673 Phil. 318, 350 (2011).
[4] 807 Phil. 52 (2017).
[5] 496 Phil. 886 (2005).
[6] Supra note 4; emphases and underscoring supplied.
[7] Supra note 5; emphasis supplied.
[8] Office of the Court Administrator v. Hamoy, 489 Phil. 296 (2005).
[9] Office of the Ombudsman v. Andutan, Jr., 670 Phil. 169 (2011).
[10] See Formal Charge with Preventive Suspension dated May 19, 2016 (rollo, pp. 234-237) which was tendered to respondent in his office on 2:53 p.m. of May 20, 2016 (sec id. at 252).
[11] "[A]n administrative proceeding may be commenced in one of two ways: (1) upon a charge by the Department or Agency head; or (2) upon a complaint filed by any other person." Bueno v. Cordoba, Jr., G.R. No. L-23932, April 27, 1967, 126 Phil. 281, 285. (emphasis supplied).
[12] See Office of the Court Administrator v. Andaya, 712 Phil. 33 (2013).
[13] Baculi, supra note 4.
[14] Rollo, pp. 175-201. Penned by Acting Presiding Judge Cleto R. Villacorta III.
[15] Id. at 177-198.
[16] Id. at 143.
[17] Id. at 144.
LEONEN, J.:
I concur in the result. However, I dissent from the ponencia's decision to limit a cabinet secretary's power over a presidentially appointed subordinate to investigation and recommendation. Doing so effectively removes the power to impose penalties from the president's alter-ego.
Presidential control over the executive branch is provided in Article VII, Section 17 of the Constitution, which states: "The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed."
However, the president's numerous and varied functions call for the delegation of his or her powers of control to the cabinet secretaries, who are then deemed to act on the president's behalf under the doctrine of qualified political agency or the alter-ego doctrine.[1]
The doctrine of qualified political agency was introduced in Villena v. The Secretary of Interior,[2] where this Court explained:
Nonetheless, the president's power to delegate authority to cabinet members is not absolute, and there are some powers that only the president may personally wield. In Spouses Constantino, Jr. v. Cuisia,[6] this Court clarified:
I disagree.
The power to discipline a subordinate is not "of similar gravitas and exceptional import"[10] to declaring martial law and suspending the writ of habeas corpus, as exemplified in Spouses Constantino, Jr., both of which understandably require the exclusive exercise of the president's power. Rather, the power to discipline a subordinate can be validly delegated to cabinet secretaries as part of their supervision and control over their respective departments under the Administrative Code.
Book IV, Chapter 2, Section 7 of the Administrative Code enumerates a cabinet secretary's powers and functions:
In declaring[11] that cabinet secretaries have no disciplinary power over presidential appointees, the ponencia relies on Section 38[12] of the Civil Service Decree and Book V, Title I-A, Chapter 7, Section 48[13] of the Administrative Code. However, these provisions, as Justice Amy Lazaro-Javier (Justice Lazaro-Javier) observes, do not provide a statutory basis to the ponencia's declaration. They merely describe the procedure to be followed in administrative complaints against non-presidential appointees; they do not define the jurisdiction of cabinet secretaries over subordinates who are presidential appointees.[14]
In 2001, Executive Order No. 12 created the Presidential Anti-Graft Commission[15] to investigate presidential appointees with Salary Grade 26 and higher, and then to submit a report and recommendation to the president.[16] Later, in 2010, Executive Order No. 13 abolished[17] the Presidential Anti-Graft Commission and transferred its functions to the Office of the Deputy Executive Secretary for Legal Affairs.[18]
In 2017, Executive Order No. 43 created the Presidential Anti-Corruption Commission to hear and investigate administrative cases and complaints,[19] as well as conduct lifestyle checks,[20] against presidential appointees accused of graft and corruption. The investigative and recommendatory functions of the Office of the Deputy Executive Secretary for Legal Affairs were transferred to the Presidential Anti-Corruption Commission.[21]
Nothing in the wordings of Executive Order Nos. 12, 13, or 43 removed the cabinet secretary's delegated authority to investigate and discipline its erring presidentially appointed subordinates. While the executive orders uniformly provided for the repeal of "other issuances, orders, rules and regulations,"[22] they did not expressly repeal any portion of the Administrative Code. Further, it is canon that an executive order cannot repeal a law.
Thus, as it stands, the power to investigate presidential appointees can either be delegated, as in the case of cabinet secretaries exercising their power of control and supervision over their subordinates, or can be exercised by the president directly through the Presidential Anti-Corruption Commission for complaints involving presidential appointees with a salary grade of 26 or higher.
Contrary to the ponencia's statement that cabinet secretaries have no power to discipline and impose penalties on presidential appointees,[23] they retain the power to discipline both presidential appointees and non-presidential appointees. They are, after all, the president's alter-egos, whose acts are presumed to be the president's—unless they are reversed or disapproved by the president. As Justice Lazaro-Javier puts it, it is best to leave the disciplining of a subordinate to the cabinet secretary as "he or she knows better how the presidential appointee has been performing or conducting himself or herself in the public service."[24] Ultimately, though, the final say still belongs with the president, as the cabinet secretary's decision "remains subject to the president's disapproval or reversal."[25]
Additionally, to subscribe to the ponencia's train of thought that only the president may impose penalties, and his or her subordinates are limited to investigating and recommending penalties, would be to deny a respondent the remedy of an appeal. By withholding the power to discipline from cabinet secretaries, the president's disciplinary action will immediately become final without the possibility of an appeal.
The power of control contained in Article VII, Section 17 of the Constitution means that the president can "alter or modify or nullify or set aside"[26] a subordinate officer's action and substitute it with his or her own judgment. It gives the president the opportunity to correct the subordinate's actions.
Nonetheless, the issue raised before this Court is limited to petitioner Adrian Cristobal, Jr., the Department of Trade and Industry Secretary, on his exercise of the power to discipline in connection with an investigation against respondent Danilo B. Enriquez. The issue does not involve the legality of petitioner's exercise of the power to impose penalties against a presidential appointee.
Thus, I concur with the ponencia that petitioner-secretary, as the President's alter-ego, possessed the power to investigate, create a committee to investigate the complaints and allegations against respondent, and preventively suspend respondent during the course of the investigation.
ACCORDINGLY, I vote to GRANT the Petition.
[1] Villena v. The Secretary of Interior, 67 Phil. 451, 463 (1939) [Per J. Laurel, En Banc].
[2] 67 Phil. 451 (1939) [Per J. Laurel, En Banc].
[3] Id. at 463.
[4] 67 Phil. 62 (1939) [Per J. Laurel, En Banc].
[5] Id. at 77.
[6] 509 Phil. 486 (2005) [Per J. Tinga, En Banc].
[7] Id. at 518.
[8] Ponencia, p. 12.
[9] Id. at 13.
[10] Spouses Constantino, Jr. v. Cuisia, 509 Phil. 486, 518 (2005) [Per J. Tinga, En Banc].
[11] Ponencia, pp. 12-14.
[12] Presidential Decree No. 807 (1975), sec. 38(a) provides:
SECTION 38. Procedure in Administrative Cases Against Non-Presidential Appointees. — (a) Administrative proceedings may be commenced against a subordinate officer or employee by the head of department or office of equivalent rank, or head of local government, or chiefs or agencies, or regional directors, or upon sworn, written complaint of any other persons.
[13] ADM. CODE, Book V, Title I-A, Ch. 7, sec. 48 provides:
SECTION 48. Procedure in Administrative Cases Against Non-Presidential Appointees. — (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person.
[14] J. Lazaro-Javier, Concurring and Dissenting Opinion, pp. 9-10.
[15] Executive Order No. 12 (2001), sec. 1 provides:
SECTION 1. Creation. — The Presidential Anti-Graft Commission, hereinafter referred to as the "Commission", is hereby created under the Office of the President, pursuant to Article VII, Section 17 of the Constitution.
[16] See Executive Order No. 12 (2001), sec. 4(b) and (e) and sec. 8.
[17] Executive Order No. 13 (2010), sec. 3 provides:
SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC). To enable the Office of the President (OP) to directly investigate graft and corrupt cases of the Presidential appointees in the Executive Department including heads of government-owned and controlled corporations, the Presidential Anti-Graft Commission (PAGC) is hereby abolished and their vital functions, particularly the investigative, adjudicatory and recommendatory functions and other and functions inherent or incidental thereto, transferred to the office of the Deputy Secretary for Legal Affairs (ODESLA), OP in accordance with the provisions of this Executive Order.
[18] Executive Order No. 13 (2010), sec. 3 provides:
SECTION 3. Reconstructuring of the Office of the Deputy Executive Secretary for Legal Affairs, OP.
In addition to the Legal and Legislative Divisions of the ODESLA, the Investigative and Adjudicatory Division shall be created.
The newly created Investigative and Adjudicatory Division shall perform the powers, functions and duties mentioned in Section 2 hereof, of PAGC.
The Deputy Executive Secretary for Legal Affairs (DESLA) will be the recommending authority to the President, thru the Executive Secretary, for approval, adoption or modification of the report and recommendations of the Investigative and Adjudicatory Division of ODESLA.
[19] Executive Order No. 43 (2017), sec. 1 provides:
SECTION 1. Creation. The Presidential Anti-Corruption Commission, hereinafter referred to as the "Commission," is hereby created under the Office of the President to directly assist the President in investigating an/or hearing administrative cases primarily involving graft and corruption against all presidential appointees, as defined in Section 5 hereof, and to perform such other similar duties as the President may direct.
[20] Executive Order No. 43 (2017), sixth Whereas clause.
[21] Executive Order No. 43 (2017), sec. 12 provides:
SECTION 12. Transfer of Power, Duties, and Functions. Consistent with the provisions of this Order, the investigative, recommendatory, and other incidental functions of the defunct Presidential Anti-Graft Commission (PAGC), which were transferred to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) by virtue of EO No. 13 (s. 2010) shall be transferred to the Commission; provided, that the ODESLA shall retain its functions of formulating national anti-corruption plans, policies, and strategies, implementing anti-corruption initiatives of the government, and monitoring compliance therewith, which include, but shall not be limited to: (1) the review and implementation of the Philippines' compliance with the United Nations Convention against Corruption (UNCAC) pursuant to EO No. 171 (s. 2014); (2) the implementation of the Integrity Management Program (IMP) pursuant to EO No. 176 (s. 2014); and (3) coordination with the Inter-Agency Anti-Graft Coordinating Council.
[22] Executive Order No. 12 (2001), sec. 19. See also Executive Order No. 13 (2010), sec. 6 and Executive Order No. 43 (2017), sec. 17.
[23] Ponencia, p. 14.
[24] J. Lazaro-Javier, Concurring and Dissenting Opinion, p. 13.
[25] Philippine Institute for Development Studies v. Commission on Audit, G.R. No. 212022, August 20, 2019, <http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65612> [Per J. Leonen, En Banc].
[26] Mondano v. Silvosa, 97 Phil. 143, 148 (1955) [Per J. Padilla, First Division].
CAGUIOA, J.:
The petition should be dismissed for lack of merit. Though I do not agree with certain pronouncements of the lower court, it reached the correct decision consistent with the rule in Baculi v. Office of the President[1] (Baculi).
Disciplinary authority over presidential appointees belongs concurrently to the Office of the President (OP) and the Office of the Ombudsman (OMB). Thus, the conduct of the formal investigation of a presidential appointee contemplated under Sections 47 to 52 of Chapter 7, Subtitle A, Title 1, Book V of the Executive Order No. 292 or the Administrative Code of 1987 (Administrative Code), subsequent to the filing of a complaint or Formal Charge is exclusively within the jurisdiction of the OP and OMB.
However, there is no legal impediment to a preliminary investigation by the Secretary of a subordinate short of taking disciplinary action (e.g., placing a presidential appointee under preventive suspension or filing a formal charge, as in this case). This is inherent to the power of supervision and control over a department that a Secretary is given by law.
Sections 6 and 7, Chapter 2, Book IV of the Administrative Code read:
Without more, this appears to be the extent of the disposition of the court a quo.[3] This qualification is also confirmed by the fact that the preliminary investigation is still nevertheless allowed to produce effect by the ponencia (i.e., referral of findings of the Department of Trade and Industry (DTI) Secretary to the OP or OMB for the conduct of proper proceedings), similar to the case of Baculi.
A more precise rule, to my mind, is that the disciplinary jurisdiction of the OP and the OMB over presidential appointees does not negate the power of a Secretary of a department to conduct a preliminary investigation short of taking disciplinary action (e.g., placing a presidential appointee under preventive suspension or filing a formal charge).
As applied to this case, the preliminary investigation conducted within the DTI was authorized by law but the proceedings subsequent to the Formal Charge not brought before the OP or OMB were susceptible to certiorari and were correctly nullified by the court a quo.
Section 38(a) of Presidential Decree No. 807 and Sections 47 to 52 of Chapter 7, Subtitle A, Title I, Book V of the Administrative Code speak only of the procedures in administrative cases against non-presidential employees. Sections 47 and 51[4] relating to the disciplinary jurisdiction of Secretaries do not appear operational as regards presidential appointees. By its own rules as contained in the 2017 Revised Rules on Administrative Cases in the Civil Service (2017 RRACS),[5] the Civil Service Commission (CSC) recognizes that it does not have jurisdiction over presidential appointees. Section 9,[6] Rule 2 of the 2017 RRACS echoes the provisions of Section 47(2)[7] of the Administrative Code, also signaling inapplicability to presidential appointees.
In this regard, I believe that Sections 6 and 7(5), Chapter 2, Book IV of the Administrative Code are sufficient legal bases for the Secretary's exercise of the power to investigate and designate a committee or officer to conduct such investigation, without further reliance on the non-exclusive language of Section 47(2), Chapter 7, A, Subtitle A, Title I, Book V of the Administrative Code.
Insofar as presidential appointees coming under the direct disciplinary jurisdiction of the OP and OMB, the provisions of Sections 46 to 52 of the Administrative Code relating to the "disciplining authority" and "proper disciplining authority" must be read to pertain to the OP and OMB. Thus, for presidential appointees, the power to impose disciplinary penalties in Section 46,[8] resort to summary proceedings under Section 50,[9] and placing the employee under preventive suspension under Section 51[10] do not pertain to the Department Secretary, but to the OP and OMB.
While I agree that preventive suspension is not a penalty, the power to impose it must be interpreted to pertain to the OP or OMB as proper disciplining authority — as necessitated by consistency.
That said, there is nothing that prevents the Secretary from imposing preventive suspension, conducting the investigation subsequent to the institution of a formal complaint, and imposing disciplinary penalties with the express conformity of or prior approval from the OP. As between a unilateral exercise of full disciplinary jurisdiction over a presidential appointee that flies in the face of the President's direct disciplinary jurisdiction, obtaining the express conformity or prior approval of the OP prior to the taking of disciplinary action is not an unreasonable requirement for a Secretary who is an alter ego.
This limited disciplinary jurisdiction is the most reasonable interpretation that gives effect to the Secretary's power of supervision and control over his department while respecting the direct disciplinary jurisdiction of the President over his appointees. This is also consistent with Baculi.[11]
On the doctrine of qualified political agency.
Relatedly, while the doctrine of qualified political agency may justify a Secretary's exercise of disciplinary jurisdiction over a subordinate presidential appointee, this limited disciplinary jurisdiction must be short of taking disciplinary action (i.e., the imposition of penalties). To my mind, this limitation is justified by:
Effect of subsequent executive issuances.
The doctrine of qualified political agency must be consistent with the President deciding to directly investigate and take cognizance of complaints and administrative cases against presidential appointees. For suspected graft and corrupt practices as is involved in this case, the OP had issued Executive Orders (EO) creating the Presidential Anti-Graft Commission,[12] transferring its powers, duties and functions to Office of the Deputy Executive Secretary for Legal Affairs,[13] and under the current administration, the Presidential Anti-Corruption Commission[14] for that specific purpose.
Viewed in this light, the holding in Baculi followed by the court a quo has sound basis. Executive issuances and those of other national government agencies affirm the contemporaneous construction that the direct disciplinary jurisdiction over presidential appointees belongs to the OP and OMB. Hence, only the investigation can be done by the Secretary. The procedure envisioned in Sections 47 to 52 of Chapter 7, Subtitle A, Title I, Book V of the Administrative Code, subsequent to the filing of a Formal Charge is within the jurisdiction of the OP and OMB.
These issuances, issued under the ordinance power of the President relating to constitutional or statutory powers (i.e., the sharing of disciplinary jurisdiction with heads of offices)[15] may be read as a continuing decision of the President to directly take cognizance of complaints and cases against presidential appointees, limiting the applicability of qualified political agency with respect to the exercise of disciplinary jurisdiction over presidential appointees. In this class of cases, EOs, while not repealing laws, may validly modify them.
Hence, the general proposition that an EO cannot repeal a law does not hold true in this case.
Baculi v. Office of the President.
In Baculi, the doctrine of qualified political agency for purposes of imposing disciplinary penalties (i.e., dismissal) was accorded, not to the Department Secretary but to the Deputy Executive Secretary, thus:
For the same reason above, the alter ego or qualified political agency doctrine must defer to the final action of the President with respect to disciplinary action (i.e., imposition of penalties). It may indeed lead to unnecessary embarrassment to the Executive Department if the President is constrained to reinstate a presidential appointee removed or suspended by the Secretary in his capacity as alter ego in the face of the executive issuances already signaling the President's decision to directly exercise disciplinary jurisdiction over these persons he personally appointed. It is much more workable for the limited disciplinary jurisdiction to be recognized as in Baculi and for the Secretary to recommend and leave the taking of disciplinary action to the President as the appointing power.
On mootness and referral of findings to the OP.
The decision holds that the petition is not mooted by the expiration of respondent Enriquez's term upon the appointment of another person to his position. I recognize the merit of SAJ Perlas-Bernabe's position that the Formal Charge filed by the investigating committee signifies the institution of the complaint conformably with Baculi, and that cessation from office "is not a way out to evade administrative liability when facing administrative sanction. [It] does not preclude the finding of any administrative liability to which he or she shall still be answerable."[17]
While I agree that the issues raised in this case remain justiciable despite respondent Enriquez's separation, my position is that for presidential appointees, administrative jurisdiction may only be had by the timely filing of a Formal Charge before the OP or the OMB during the incumbency of the said appointee. This is not inconsistent with the jurisprudence[18] dealing with either dismissed or resigned officials. The Formal Charge herein was not brought to the OP or OMB during the respondent's tenure; hence, no complaint was timely instituted before the proper disciplining authority. There is no valid pending or subsisting administrative complaint that could be the avenue to find administrative liability at this stage. This is in stark contrast with the fact pattern in Baculi: the Department of Agrarian Reform Secretary forwarded his findings and recommendations to the OP while the petitioner was still in office; the OP, in turn, dismissed the petitioner therein from the service.
Hence, I do not believe that there is basis to refer the SIC's findings to the OP for imposition of administrative penalties, if any.
Conclusion
In fine, I maintain that the extent of disciplinary jurisdiction of a Department Secretary over a subordinate-presidential appointee includes the power to investigate, and designate a committee or officer to conduct such investigation, BUT does not include the power to unilaterally place the presidential appointee under preventive suspension and to unilaterally impose disciplinary penalties. Given the state of the law and executive issuances on the matter, there is no pressing need to deviate from or abandon Baculi.
Moreover, separate from the issue of whether the DTI Secretary has disciplinary jurisdiction over a subordinate presidential appointee, I believe that DTI's failure to bring the Formal Charge before the proper disciplining authority (i.e., OP or OMB) prior to the respondent's separation from office means no disciplinary jurisdiction can be had over him at this stage. It also forecloses the continuation of proceedings with a view of finding administrative liability on the part of respondent Enriquez.
On the basis of the foregoing, I vote to dismiss the petition.
[1] 807 Phil. 52 (2017).
[2] Approved on July 25, 1987; emphasis and underscoring supplied.
[3] The dispositive portion of the Regional Trial Court Decision reads:
WHEREFORE:
1. The instant petition is granted in part.
2. The Formal Charge with Preventive Suspension dated May 19, 2016 is nullified and set aside.
3. The Special Investigation Committee is prohibited from hearing and adjudicating the Formal Charge with Preventive Suspension dated May 19, 2016.
4. The [petitioners] are commanded to restore [respondent Danilo V. Enriquez (respondent Enriquez)] to his post as Director of the Fair Trade Enforcement Bureau of the Department of Trade and Industry, unless his term of office has already expired and he can no longer resume such post under the present Administration, rollo, p. 38.
[4]Book V
TITLE I
Constitutional Commissions
SUBTITLE A
Civil Service Commission
Chapter 7
Discipline
SECTION 47. Disciplinary Jurisdiction. — (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or line in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken.
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.
(3) An investigation may be entrusted to regional director or similar officials who shall make the necessary report and recommendation to the chief of bureau or office or department within the period specified in Paragraph (4) of the following Section.
(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.
SECTION 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.
[5]Rule 2
JURISDICTION AND VENUE OF ACTIONS
Section 7. Cases Cognizable by the Commission. The Civil Service Commission shall take cognizance of the following cases:
[6] Section 9. Jurisdiction of Disciplining Authorities. The disciplining authorities of agencies and local government units shall have original concurrent jurisdiction with the Commission over their respective officials and employees. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days salary subject to Section 7(A)(5) of these Rules. In case the decision rendered by a bureau or office is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is dismissal from the service, in which case the same shall be executory only after confirmation by the Secretary concerned.
[7] See supra note 4.
[8] SECTION 46. Discipline: General Provisions. — x x x
x x x x
(d) In meting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be imposed in each case. The disciplining authority may impose the penalty of removal from the service, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months' salary, or reprimand.
[9] SECTION 50. Summary Proceedings. — No formal investigation is necessary and the respondent may be immediately removed or dismissed if any of the following circumstances is present:
(1) When the charge is serious and the evidence of guilt is strong;
(2) When the respondent is a recidivist or has been repeatedly charged and there is reasonable ground to believe that he is guilty of the present charge; and
(3) When the respondent is notoriously undesirable.
Resort to summary proceedings by the disciplining authority shall be done with utmost objectivity and impartiality to the end that no injustice is committed: Provided, That: removal or dismissal except those by the President, himself or upon his order, may be appealed to the Commission.
[10] SECTION 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.
[11] Note that in Baculi, the petitioner did not question the Department of Agrarian Reform Secretary's act of placing him under preventive suspension; hence, no ruling was made relative thereto.
[12] EO No. 12 (2001), entitled CREATING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES AND FUNCTIONS, AND FOR OTHER PURPOSES.
[13] EO No. 13 (2010), entitled ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORS AND RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE PRESIDENT.
[14] EO No. 43 (2017), entitled CREATING THE PRESIDENTIAL ANTI-CORRUPTION COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES AND FUNCTIONS, AND FOR OTHER PURPOSES, as amended by EO No. 73 (2018). One of the amendments introduced by EO No. 73 reads:
SECTION 1. x x x
"Section 5. Jurisdiction, Powers and Functions. —
x x x x
(f) x x x
x x x x
The preceding paragraphs notwithstanding, nothing shall prevent the President, in the interest of the service, from directly investigating and/or hearing an administrative case against any presidential appointee or authorizing other offices under the Office of the President to do the same, as well as from assuming jurisdiction at any stage of the proceedings over cases being investigated by the Commission."
[15]BOOK III
Office of the President
TITLE I
Powers of the President
CHAPTER 2
Ordinance Power
SECTION 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be, promulgated in executive orders.
[16] Supra note 1, at 66-68.
[17] Separate Concurring Opinion of SAJ Perlas-Bernabe, p. 3.
[18] Office of the Court Administrator v. Judge Hamoy, 489 Phil. 296, 301 (2005), deals with a judge who "was dismissed from service with forfeiture of retirement benefits except accrued leave credits after he was found guilty of gross inefficiency, dereliction of duty and violation of the Code of Judicial Conduct." The Court held that his dismissal did not preclude the imposition of fine charged against his accrued leave benefits.
On the other hand, in Office of the Ombudsman v. Andutan, Jr., 670 Phil. 169 (2011), deals with "Andutan [who] was forced to resign more than a year before the Ombudsman filed the administrative case against him," id. at 185. The CA annulled and set aside the OMB decision, because, among other reasons, "the administrative case was filed after Andutan's forced resignation," id. at 175. On certiorari, the Court agreed with the CA, holding that "Andutan is no longer the proper subject of an administrative complaint," id. at 189.
LAZARO-JAVIER, J.
I concur with the highly esteemed Ponente insofar as he upholds the power of Department Secretaries to investigate their subordinates for administrative offenses, but dissent insofar as he limits this power to preclude Department Secretaries from imposing penalties against presidential appointees.
True, the ponencia and the challenged rulings are consistent with precedents, one of which as cited is Baculi v. Office of the President,[1] but perhaps it is high time that the basis for their common holding be revisited.
If I may digress a bit, a bright light from the procedural history of the instant case is the trial court judge's adherence to the rule of precedent which is one of the cornerstones of the rule of law. Precedent is a doctrine that brings stability to the state of our law. But it is also the Court's function not only to ensure adherence to precedents, as the trial court judge has done, but to re-examine the continued validity and doctrinal value of precedents in the light of present day circumstances including the prevailing legal philosophies of the Court's current roster.
The bases for this opinion is twofold: (i) statutory provisions, and (ii) the doctrine of qualified political agency.
I.
The Administrative Code vests Department Secretaries with Disciplinary Jurisdiction over their Subordinates
I do not see any reason why we should continue to exclude the exercise of disciplinary jurisdiction over presidential appointees who are subordinates of the President's alter egos from the statutory grant of disciplinary jurisdiction to the President's alter egos over their subordinates.
The ponencia refers us to Section 38 of PD 807[2] and Section 47 of EO 292[3] to prove that heads of the Executive Departments have no disciplinary jurisdiction over presidential appointees even if the latter are the department heads' respective subordinates. The reference to these statutory provisions to support the ponencia's proposition, with due respect, may not be accurate.
For these statutory provisions deal ONLY with the procedure to be adopted with respect to the administrative cases against non-presidential appointees. These statutory provisions do not define, by any stretch of interpretation, the disciplinary jurisdiction of the heads of the Executive Departments over their subordinates who are presidential appointees.
It is quite a leap to conclude that just because Section 38 of PD 807 and Section 47 of EO 292 provide the procedure that a Secretary may take and follow in an administrative case against a non-presidential appointee, the provisions already limit the Secretary's disciplinary jurisdiction to subordinates who are not presidential appointees. The language of the statutory provisions simply does not support this claim of the precedents relied upon by the ponencia and the trial judge. Besides the fact that Section 38 of PD 807 and Section 47 of EO 292 are couched in the permissive sense, as shown by the use of the word "may," these provisions only talk about the procedure that may be followed in an administrative case against a non-presidential appointee.
Indeed, the appropriate statutory provisions which define the disciplinary jurisdiction of heads of the Executive Departments over their subordinates who are presidential appointees are Sections 6 and 7(5),[4] Chapter 2, Title III, Book IV; Section 47(2),[5] Chapter 7, Title I, Book V; and, Section 51,[6] Chapter 4, Book V, all of EO 292. The headings or head notes or epigraphs of these statutory provisions are themselves convenient indexes to their contents — "Authority," "Responsibility," "Powers," "Functions" and "Disciplinary Jurisdiction."
More important, the language and wordings of the foregoing statutory provisions clearly indicate who are subject to the Secretary's disciplinary jurisdiction — the Secretary's subordinates WITHOUT DISTINCTION as to whether the public officer is a presidential appointee or a non-presidential appointee. The procedure involved in the administrative case may be different from one to the other, but the disciplinary jurisdiction of the Secretary over both of them is very clear from the aforementioned provisions. Sections 6 and 7(5) of Book IV, Section 47(2) of Book V, and Section 51 of Book V, all of EO 292, could not have been made any clearer as to their meaning.
It bears emphasis that the disciplinary jurisdiction of the Secretary over both presidential and non-presidential appointees is not exclusive of the disciplinary jurisdiction that the President may choose at any time to assume and exercise over both types of appointees. Hence, at any time, the President may assume and exercise disciplinary jurisdiction over an administrative case involving either a presidential appointee or a non-presidential appointee at any stage of the administrative proceedings before the heads of the Executive Departments.
The reason for this reserved authority and power of the President as Chief Executive lies in the nature of our constitutional presidential system whereby all executive and administrative organizations are adjuncts of the Executive Department, and the heads of the various executive departments are mere assistants and agents of the President as Chief Executive. Except in cases where the Chief Executive is required by the Constitution or the law to act in person, or the exigencies of the situation demand that he or she act personally, the nature of the presidential bureaucracy involves the multifarious executive and administrative functions of the President as Chief Executive being performed by and through the executive departments, as his or her mere assistants and agents.
III.
The Doctrine of Qualified Political Agency
Assuming that Sections 6 and 7(5) of Book IV, Section 47(2) of Book V, and Section 51 of Book V, all of EO 292, are equivocal as to their meaning (an assumption that I cannot accept given the clarity of these provisions), the disciplinary jurisdiction of an executive department head over presidential appointees can be implied necessarily from the doctrine of qualified political agency.
Under this doctrine, department secretaries are alter egos or assistants of the President and their acts are presumed to be those of the latter unless disapproved or reprobated by him. According to former Chief Justice Lucas Bersamin in Manalang-Demegillo v. Trade and Investment Development Corporation of the Philippines,[7] this doctrine of qualified political agency:
Thus, applying the doctrine of qualified political agency, when a Secretary, such as the Secretary of the Department of Trade and Industry in the case at bar, exercises disciplinary jurisdiction over a subordinate presidential appointee, the Secretary is doing so as the President's alter ego. In resorting to the doctrine, assuming there is no statutory authority granting the Secretary such power, which I strongly dispute, the Secretary does not need an express and categorical mandate from the President to exercise disciplinary jurisdiction over the Secretary's subordinate presidential appointees, because impliedly, the Secretary already has such mandate as the President's alter ego. The Secretary's action vis-a-vis the subordinate presidential appointee is deemed to be the President's action — this deeming rule is the substance of the doctrine of qualified political agency — unless reprobated by the President himself.
It goes without saying that the doctrine of qualified political agency if resorted to by a head of an executive department does not vest exclusive disciplinary jurisdiction upon the latter to the exclusion of the President as Chief Executive. This is because, consistent with the nature of a presidential system as stated above, and also with the nature of an agency relationship, the department heads are the President's mere factotums whom the President as Chief Executive can at any time hire, fire, replace, or take over from at any stage of the department heads' execution of their functions.
As a statement of our country's rule of law, the doctrine of qualified political agency is well entrenched. In practical terms, the doctrine is responsive to the multifarious concerns that the President has to attend to and the fact that there are just so many presidential appointees out there. At the first instance, it is best to leave the disciplining to the President's alter ego as he or she knows better how the presidential appointee has been performing or conducting himself or herself in the public service.
I do recognize that the doctrine of qualified political agency does not apply "in cases where the Chief Executive is required by Constitution or law to act in person or the exigencies of the situation demand that he act personally." But we have to ask ourselves, to what particular acts do we apply the exception?
Villena v. Secretary of Interior[8] has already intimated that not every power vested in the President falls within the exception. Thus:
Spouses Constantino v. Cuisia,[9] discussed the type of presidential powers that may be delegated — (i) those that may be considered to be within the expertise of the Cabinet member concerned, (ii) those that require focus on a welter of time-consuming detailed activities, which would unduly hamper the President's effectivity in running the government, those involving the formulation and execution of schemes pursuant to the policy publicly expressed by the President himself or herself, or (iii) though of vital public interest, those only akin to any contractual obligation undertaken by the sovereign arising not from any extraordinary incident but from the established functions of governance.
On the other hand, the exception includes "certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import." Thus:
Here, the power to remove a presidential appointee of respondent's rank and responsibilities is not of the type that engages the exception to the doctrine. It is not one that the Court has previously declared must be exercised personally by the President. It is not one that arises out of exceptional circumstances, or if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government.
On the contrary, it is one of those falling within any of the enumerated exceptions to the exception. The removal of a presidential appointee of the rank and responsibilities of respondent is within the expertise of the Cabinet member concerned; it requires focus on a welter of time-consuming detailed activities, which would unduly hamper the President's effectivity in running the government; it involves the execution of the President's publicly stated policy against misfits in government; and, it is an ordinary incident that is part and parcel of the established functions of governance. As a result, it cannot be seriously argued that the power involved falls within the exception to the application of the doctrine of qualified political agency.
I also have to caution that just because the removal is decided and implemented by the Cabinet member in the ordinary course of law does not mean that the President is by-passed and his or her power to discipline his or her appointees is diluted. This is far from it.
As mentioned, the designated alter ego of the President is bound to secure the latter's prior consent to or subsequent ratification of his or her acts. For the President's repudiation of the very acts performed by the alter ego in this regard will definitely have a binding effect. If it is demonstrated that the President actually withheld approval or repudiated the alter ego's action, which in this day and age is easy to accomplish, there could be a cause of action to nullify the latter's acts. It is only when there is tatter lack of showing that the President countermanded the acts of his or her Cabinet member can we conclude that these acts carried presidential approval.
Recognizing the application of the doctrine of qualified political agency in the instant case is especially convincing during emergency times. It gives department secretaries the latitude in helping the President in his tasks without unnecessarily burdening him. This is because the department secretaries know the capacities and actual performance of their subordinates, be they presidential or non-presidential appointees, as it is often the case that these subordinates, even those appointed by the President, are so appointed only upon the respective recommendations of the department secretaries. More, these Presidential appointees are mostly career people who are recommended and appointed on the basis of fitness and merit: not because they enjoy the trust and confidence of the President. They enjoy security of tenure and may be removed only upon valid or just cause. They do not serve at the pleasure of the President. Hence, unless disapproved by the President, it behooves us in the Court to recognize the dynamics within each department which the secretary concerned has foremost knowledge of. In any event, these presidential appointees are not removed whimsically and immediately but must be based on cause as they were appointed on the basis of merit and fitness. This is the necessary check that what the department secretaries are doing as personnel movements within their respective turfs are easily monitored and principled.
ACCORDINGLY, I vote to grant the petition and to reverse the assailed Order dated June 27, 2016 of the learned trial judge. I vote to declare as VALID the entire administrative proceedings conducted by the Department of Trade and Industry against Respondent Danilo B. Enriquez pursuant to Department Order No. 16-34 dated April 22, 2016.
[1] G.R. No. 188681, March 8, 2017.
[2] Section 38. Procedure in Administrative Cases Against Non-Presidential Appointees, (a) Administrative proceedings may be commenced against a subordinate officer or employee by the head of department or office of equivalent rank, or head of local government, or chiefs or agencies, regional directors, or upon sworn, written complaint of any other persons.
[3] Section 48. Procedure in Administrative Cases Against Non-Presidential Appointees. — (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person.
[4] Section 6. Authority and Responsibility of the Secretary. — The authority and responsibility for the exercise of the mandate of the Department and for the discharge of its powers and functions shall be vested in the Secretary, who shall have supervision and control of the Department.
Section 7. Powers and Functions of the Secretary. — The Secretary shall.... (5) Exercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation....
[5] SECTION 47. Disciplinary Jurisdiction. — .... (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.
[6] SECTION 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.
[7] 705 Phil. 331 (2013).
[8] 67 Phil. 451 (1939).
[9] 509 Phil. 486 (2005).
[10] 758 Phil. 724 (2015).
ZALAMEDA, J.:
Director Danilo B. Enriquez (Dir. Enriquez), a director of a line bureau and a presidential appointee, claims immunity from administrative disciplinary proceedings instituted against him by the Secretary of the Department of Trade and Industry (DTI Secretary), particularly the creation of a Special Investigation Committee (SIC) and the imposition of preventive suspension. Dir. Enriquez insists that the authority Lo institute disciplinary proceedings over presidential appointees is limited to: (1) the Office of the President through (a) the Office of the Deputy Executive Secretary of Legal Affairs (ODESLA)[1] or (b) the Presidential Anti-Corruption Commission (PACC)[2]; and (2) the Office of the Ombudsman, based on the Constitution[3] and on Republic Act No. 6770 (RA 6770).
The arguments raised by Dir. Enriquez are misplaced. The ponencia correctly ruled that the DTI Secretary validly exercised disciplinary powers over Dir. Enriquez, albeit for different reasons, as herein discussed.
Contrary to the reasons put forward in the ponencia, a department secretary's disciplining authority over a subordinate who is a presidential appointee finds its basis in law and is tempered by the limits set by the President's power to appoint. It is not borne out of the President's power of control.
Authority to discipline is an agglomeration of powers which includes the power to remove from office, the power to impose additional penalties, the power to impose penalties short of removal, the power to impose preventive suspension, and the power to conduct an investigation. While the President exercises the full extent of this authority, a department secretary's authority to discipline excludes the power to remove from office a subordinate who is a presidential appointee. The power to remove can only be exercised by the person with the power to appoint. The President has the power to appoint and may, consequently, remove his appointee. The department secretary has no such power to appoint and may thus only recommend to the President the removal of a subordinate who is a presidential appointee.
On the other hand, the President exercises the power of control expressed through the acceptance or rejection of the department secretary's recommendation to remove a subordinate who is a presidential appointee. The power of control refers to "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter."[4] Under this definition, the President's power of control does not extend to the authority to discipline, the latter having been derived from the President's constitutional power to appoint. And the 1987 Constitution supports this conclusion, separately articulating the President's power of control and power to appoint.
Section 17 of Article VII of the 1987 Constitution provides that "[t]he President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." The first sentence refers to the President's power of control, while the second sentence refers to the President's power of supervision.
During the deliberations of the 1986 Constitutional Commission on the proposed text brought about by the departure from the parliamentary form of government in the 1973 Constitution, it was suggested that the word "control" be replaced with the words "administer" or supervise" in the provision on the President's powers of control and of supervision. This suggestion was rejected in light of the definitive usage of the word "control" in jurisprudence. A distinction was also made between the power of control and the power of general supervision, underscoring that the President's power of control refers to the exercise of discretion, and not of discipline.
In the 1963 case of Ang-Angco, We declared that the power of control of the President applies to the acts, and not the person, of his subordinate. This empowers the President to set aside the judgment or action taken by a subordinate in the performance of his duties. Subsequently, the 1965 case of Villaluz adopted Our ruling in Ang-Angco in declaring that the President has the disciplining authority over presidential appointees in the civil service. Presidential appointees in the executive department are also referred to as civil service employees in the non-competitive or unclassified service of the government.
Given the principle in Ang-Angco and Villaluz that "the power to remove is inherent in the power to appoint," what then is the basis for the department secretary's disciplinary authority, or the authority to conduct an investigation and impose preventive suspension on a subordinate who is a presidential appointee?
The Administrative Code of 1987 enumerates the officials who are presidential appointees, which includes Directors and Assistant Directors of Bureaus, Regional and Assistant Regional Directors, Department Service Chiefs, and their Equivalents.[8] It also vests upon the President the power to appoint the head of a bureau, such as Dir. Enriquez, as in this case.
Under the same Code, a department secretary is given disciplinary powers over officers and employees in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation.[9] Section 7(5) includes the power to investigate, and the power to designate a committee or officer to investigate, in the disciplining powers of a department secretary. Meanwhile, Section 7(7) explicitly states that the department secretary has the power to "[e]xercise jurisdiction over all bureaus, offices, agencies and corporations under the Department x x x."
Neither Section 7(5), which refers to disciplining powers, nor Section 7(7), which refers to the power of control, mentions or distinguishes between presidential appointees and non-presidential appointees. This means that a department secretary need not distinguish between presidential and non-presidential appointees in the exercise of disciplining powers, as well as the power of control. It is only in Section 7(6) of the Administrative Code of 1987, which pertains to the power to appoint, where a distinction between presidential appointees and non-presidential appointees finds support.
The scope of the disciplining authority of a department secretary should also be examined along with the disciplining authority of the Civil Service Commission (CSC). Sections 47, 48, and 51[10] of the Administrative Code of 1987 provide for the disciplining powers of a department secretary if the case falls under the disciplining jurisdiction of the CSC. Specifically, these provisions lay down a department secretary's powers to: investigate (Sec. 47); decide matters involving disciplinary action against officers and employees (Sec. 47); delegate the power to investigate to subordinates (Sec. 47); initiate administrative proceedings against subordinates through a sworn written complaint (Sec. 48); and to issue preventive suspension pending an investigation of a subordinate if the charges against the subordinate involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service (Sec. 51).
Concededly, the Revised Rules on Administrative Cases in the Civil Service (RRACCS),[11] which were applicable during Dir. Enriquez's tenure, specifically enumerated the cases under the jurisdiction of the CSC. The RRACCS limited the CSC's jurisdiction to those specifically enumerated in the Rules[12] and made a distinction between presidential and non-presidential appointees, whereas the Administrative Code of 1987 made no such distinction when it outlined a department secretary's authority to discipline. Thus, the RRACCS should be harmonized and read in conjunction with the said Code.
Jurisprudence asserts that the disciplining authority of a department secretary includes the investigation of subordinates who are presidential appointees and the creation of a committee to undertake the same.
In Department of Health v. Camposano, et al.[13] (Camposano), the Court explicitly recognized that the Administrative Code vested department secretaries with the power to investigate matters involving disciplinary actions involving officers, including presidential appointees.
Meanwhile, in Office of the President v. Cataquiz[14] (Cataquiz), the Secretary of the Department of Environment and Natural Resources formed an investigating team to conduct an inquiry into the allegations against the general manager of the Laguna Lake Development Authority, who is a presidential appointee. The validity of the institution of the investigating team by the department secretary was not even raised as an issue in Cataquiz. Similarly, in Dr. Melendres v. Presidential Anti-Graft Commission, et al.[15] (Melendres), the Secretary of the Department of Health ordered the creation of a fact-finding committee to look into the charges against the Executive Director of the Lung Center of the Philippines, who was a presidential appointee. The validity of the creation of the fact-finding committee by the department secretary was not also raised as an issue.
On the other hand, a demarcation must be made between the power to impose penalties and the power to impose preventive suspension. A department secretary can only recommend the imposition of penalties against presidential appointees to either the Office of the President[16] or the Office of the Ombudsman.[17] This, does not mean, however, that a department secretary is precluded from imposing preventive suspension against a presidential appointee under investigation. To emphasize, preventive suspension is not a penalty but a measure intended to enable the investigating authority to investigate the charges against the subordinate and to prevent the latter from intimidating, or in any way influencing, the witnesses.[18]
From all the foregoing, it is undeniable that the exercise by the DTI Secretary of his disciplining authority over his subordinate, Dir. Enriquez, a presidential appointee, is well-founded in both law and jurisprudence. Thus, I vote to grant the Petition. Nonetheless, I stand resolute that the DTI Secretary's authority to discipline, contrary to the reasons put forward in the ponencia, is not derived from the President's power of control. Rather, such authority springs from the law, the exercise thereof is limited and tempered by the President's power to appoint.
[1] The bases for Dir. Enriquez's assertion are provided by: Executive Order No. 12 (EO 12) dated 16 April 2001; Executive Order No. 531 (EO 531) dated 31 May 2006; Executive Order No. 531-A (EO 531-A) dated 03 August 2006; Executive Order No. 531-B (EO 531-B) dated 13 December 2006; and Executive Order No. 13 (EO 13) dated 15 November 2010.
[2] Executive Order No. 43 (2017).
[3] CONSTITUTION, Art. XI, Sec. 12 and 13.
[4] Mondano v. Silvosa, G.R. No. L-7708, 30 May 1955; 97 Phil. 143, 150 (1955).
[5] II Record, CONSTITUTIONAL COMMISSION 408 (29 July 1986).
[6] G.R. No. L-17169, 30 November 30, 1963; 118 Phil. 1468, 1481 (1963).
[7] G.R. No. L-22754, 31 December 1965; 112 Phil. 1091, 1097 (1965).
[8] Executive Order No. 292 (1987), Book IV, Chapter 10, Sec. 47.
[9] Executive Order No. 292 (1987), Book IV, Chapter 2, Sec. 7(5).
[10] All under Book V, Title I (Constitutional Commission), Chapter 6 (Right to Self-Organization), Subtitle A (Civil Service Commission).
[11] The RRACCS have since been superseded by the 2017 Rules on Administrative Cases in the Civil Service (2017 RACCS) promulgated on 03 July 2017.
[12] Sections 7, 8, and 9 of the RRACCS provide:
Section 7. Cases Cognizable by the Civil Service Commission. — The Civil Service Commission shall take cognizance of the following cases:
A. Disciplinary
Section 8. Cases Cognizable by Regional Offices. — Except as otherwise directed by the Commission, the Civil Service Commission Regional Offices shall take cognizance of the following cases:
A. Disciplinary
Section 9. Jurisdiction of Heads of Agencies. — The Secretaries and heads of agencies, and other instrumentalities, provinces, cities and municipalities shall have original concurrent jurisdiction with the Commission over their respective officers and employees. x x x (Emphases supplied).
[13] G.R. No. 157684, 27 April 2005; 496 Phil. 886, 903 (2005).
[14] G.R. No. 183445, 14 September 2011; 673 Phil. 3 18, 350 (2011).
[15] G.R. No. 163859, 15 August 2012; 692 Phil. 546, 565 (2012).
[16] 1987 CONSTITUTION, Art. VII, Sec. 17. See also Executive Order No. 292 (1987), Book III, Title I, Chapter 1, Sec. 1.
[17] Republic Act No. 6770 (1989), Sec. 25.
[18] See The Board of Trustees of the Government Service Insurance System, et al., v. Velasco, et al., 656 Phil. 385, 400-401 (2011).
Prompted by a news article[3] about corrupt practices in the issuance of importation clearances by an unnamed high-ranking officer of the Department of Trade and Industry (DTI), then DTI Secretary Adrian Cristobal, Jr. (Sec. Cristobal) instructed Consumer Protection Group Undersecretary Victorino Mario Dimagiba (Usec. Dimagiba) to conduct an investigation thereon.[4]
After acting upon said directive, Usec. Dimagiba issued a Memorandum[5] dated April 14, 2016, reporting his initial findings to Sec. Cristobal, finding unauthorized issuances of respondent Danilo B. Enriquez (Enriquez), then Fair Trade and Enforcement Bureau (FTEB) Director, with regard to certain importations. Pursuant to these findings, Usec. Dimagiba opined that there is sufficient basis to file administrative and/or criminal complaints against Enriquez, recommending, thus, that a full-blown investigation on all activities in Enriquez's office be conducted and that the latter be preventively suspended pending investigation.[6]
Thus, Sec. Cristobal issued Department Order (D.O.) No. 16-34[7] dated April 22, 2016, creating a Special Investigation Committee (SIC), mandated to conduct a full investigation on Enriquez. The D.O. also clothed the SIC the authority to issue a preventive suspension order, among others.
Learning about the SIC, Enriquez issued a Memorandum[8] dated May 2, 2016 addressed to Usec. Dimagiba, formally requesting clarification on the "unverified" findings of the preliminary investigation conducted against him and also formally demanding for the immediate release of said findings and/or report, invoking due process, fair play, and the higher interest of justice.
On even date, Enriquez issued another Memorandum,[9] addressed to Sec. Cristobal and the individual members of the SIC, questioning the regularity of the investigation conducted by Usec. Dimagiba, not only on the ground of want of authority, but also because the lack of opportunity to present countervailing evidence or counter-affidavit during said investigation.
On May 5, 2016, Enriquez issued another Memorandum,[10] also addressed to the SIC individual members, objecting to the proceedings conducted by the latter on the ground that it is the Office of the Ombudsman which has the disciplinary authority over him.
On May 6[11] and 12,[12] 2016, Enriquez issued separate memoranda, reiterating his objections to the validity of D.O. No. 16-34 with regard to the authority of the SIC to conduct investigation upon him and order preventive suspension against him.
On May 12, 2016, the SIC issued a "Show Cause Memorandum,"[13] directing Enriquez to explain in writing, within 48 hours from receipt, why no administrative charges should be filed against him with regard to Usec. Dimagiba's findings.
In response, Enriquez issued a Memorandum[14] dated May 18, 2016, maintaining his objections to the SIC's disciplinary authority over him, being a presidential appointee, holding a career and high-level position with Salary Grade "28."
On May 19, 2016, the SIC issued a Memorandum[15] stating that Enriquez did not give a responsive answer to the "Show Cause Memorandum" and as such, failed to present an explanation why no administrative case should be filed against him. Thus, the SIC found prima facie case against Enriquez and formally charged him with Gross Insubordination, Gross Misconduct/Gross Neglect of Duty, Grave Abuse of Authority, and Conduct Prejudicial to the Best Interest of the Service, stating therein the specific acts constituting the offenses, as well as the laws, rules and regulations alleged to be violated. Attached with said formal charge were pieces of documentary evidence substantiating the charges. Enriquez was also ordered to file an answer to the formal charge within 72 hours. The SIC further placed Enriquez on preventive suspension for a period of 90 days effective immediately upon receipt of said Memorandum.
On May 23, 2016, Enriquez filed a Protest and Answer Ex Abudante Cautelam,[16] specifically denying the charges against him and maintaining his objection to the SIC's authority to conduct investigations and order his preventive suspension.
Enriquez also filed a Petition for Certiorari, Prohibition, and Mandamus with Very Extreme Urgent Prayer for the Issuance of a Status Quo Ante Order and Temporary Restraining Order (TRO) and a Writ of Preliminary Injunction[17] before the RTC against Sec. Cristobal, Usec. Dimagiba, and the members of the SIC (collectively, petitioners).
In the main, Enriquez's petition was grounded upon the lack of disciplinary jurisdiction of Sec. Cristobal, and consequently the SIC as well, over him, being a presidential appointee occupying a high-ranking position with Salary Grade "28." Enriquez averred that it is the Presidential Anti-Graft Commission (PAGC) which has the authority and jurisdiction to investigate, hear, and decide administrative cases against a presidential appointee occupying a director position with Salary Grade "28." Enriquez invoked Executive Order (E.O.) No. 12, as amended by E.O. No. 531 and E.O. Nos. 531-A and 531-B.
Enriquez also argued that the investigation conducted by Usec. Dimagiba, as well as the resulting creation of the SIC and its order of preventive suspension, are acts of oppression and clear abuse of authority, which violated his right to due process.
Hence, Enriquez prayed that D.O. No. 16-34 and all the Memoranda issued by Usec. Dimagiba and the SIC relative to the investigation/s against him, be nullified; that petitioners be ordered to restrain from further continuing with the administrative disciplinary proceedings against him; and that a memorandum be issued stating that petitioners do not have jurisdiction over administrative cases involving presidential appointees and the proper remedy or referral of the case to the appropriate authority.[18]
Petitioners, through the Office of the Solicitor General (OSG), countered that the RTC has no jurisdiction over the petition. Petitioners argued that the petition involves the DTI Secretary's exercise of its quasi-judicial function in an administrative disciplinary proceeding. Hence, according to the petitioners, a review thereof is within the jurisdiction of the Court of Appeals (CA) pursuant to Section 4, Rule 65 of the Rules of Court. Petitioners further argued that they have disciplinary jurisdiction over Enriquez, which include the authority to investigate and designate a committee to conduct such investigation, invoking Section 7(5), as well as Section 47(2) and (3), Chapter 2, Book IV and Section 51, Chapter 6, Book V of E.O. No. 292 or the Administrative Code of 1987. Petitioners further averred that due process was observed in the exercise of their disciplinary authority over Enriquez.[19]
In its June 27, 2016 Decision, the RTC ruled in favor of Enriquez as follows:
WHEREFORE:Meanwhile, the DTI, through its then newly-appointed Secretary, Ramon M. Lopez, issued D.O. No. 16-63 dated July 4, 2016, which designated Assistant Director Ferdinand L. Manfoste as Officer-In-Charge of the FTEB in concurrent capacity, effectively implying the expiration of Enriquez's term of office.
1. The instant petition is granted in part.
2. The Formal Charge with Preventive Suspension dated May 19, 2016 is nullified and set aside.
3. The Special Investigation Committee is prohibited from hearing and adjudicating the Formal Charge with Preventive Suspension dated May 19, 2016.
4. The [petitioners] are commanded to restore [Enriquez] to his post as Director of the Fair Trade Enforcement Bureau of the Department of Trade and Industry, unless his term of office has already expired and he can no longer resume such post under the present Administration.
SO ORDERED.[20] (Italics in the original)
This Petition was then filed. Petitioners argue, in the main, that the DTI Secretary has disciplinary jurisdiction, which includes the authority to investigate and to designate a committee for such purpose, over subordinates though they may be presidential appointees such as Enriquez. Petitioners also question the RTC's jurisdiction to review the questioned act/s of the DTI Secretary and the SIC through a petition for certiorari, prohibition, and mandamus. Further, petitioners maintain that, contrary to Enriquez's claim, due process of law was observed in the process of investigation.
In his Comment/Opposition with Leave (Re: Petition for Review on Certiorari),[21] Enriquez argues that the expiration of the term of his office has rendered the instant petition moot and academic.
In their Reply,[22] petitioners, through the OSG, argue that Enriquez's separation from service does not render the instant petition moot and academic considering that administrative proceedings or investigations commenced against a public officer is not mooted upon the latter's subsequent separation from service as accessory penalties may still be imposed against erring public officials. Put differently, petitioners posit that Enriquez's separation from service only rendered moot the imposition of the penalty of dismissal, not the administrative proceedings or investigations against him. Hence, according to petitioners, the review of the instant Petition, which is rooted from the petition filed by Enriquez before the RTC, cannot be mooted by the latter's separation from service.
In their Memorandum,[23] thus, petitioners raise the additional issue of whether or not the petition was rendered moot and academic due to Enriquez's separation from office. On the other hand, in his Memorandum, Enriquez argues that his right to due process of law was violated when he was investigated upon by a committee which has no authority to investigate, hear, and decide administrative cases over him, who is a presidential appointee with Salary Grade "28." Enriquez insists that it is the PAGC, not the DTI Secretary or the committee he designated, which has disciplinary authority over him pursuant to E.O. No. 12, as amended.
I. Does the Department Secretary have disciplinary jurisdiction over a presidential appointee?
II. Did the RTC err in giving due course to the petition for certiorari, prohibition, and mandamus?
III. Is the petition rendered moot and academic by the expiration of Enriquez's term of service?
I.
The DTI Secretary has authority to investigate, as well as to designate a committee or an officer for such purpose, a bureau director who is a presidential appointee such as Enriquez.
In ruling against the authority of the DTI Secretary to proceed in the administrative investigation of Enriquez, the RTC reasoned as follows:
From these legal facts, one can necessarily infer two things:In brief, the court a quo ratiocinated that the heads of the departments, agencies and other instrumentalities have no disciplinary jurisdiction over presidential appointees since their decision thereon cannot be appealed to the Civil Service Commission (CSC), thereby leaving a void in the appeal process. Moreover, according to the RTC, the President, pursuant to its power of control over the executive branch, has directly assumed the investigatory functions of the department heads over presidential appointees, through E.O. No. 13 "and its allied E.O.s." The RTC then theorized that such assumption of function, done pursuant to a Constitutional mandate, cannot be ignored by the President's mere alter egos by invocation of the Administrative Code provisions.
(i) The heads of departments, agencies and other instrumentalities have no jurisdiction as well over disciplinary cases against presidential appointees. This is because in effect their decisions cannot be appealed to the proper appellate body, which is the Civil Service Commission, and therefore, this scheme of disciplinary procedure leaves a void in the appeal process, which as a matter of statutory interpretation is undesirable; and
(ii) As a result, the heads of departments, agencies and other instrumentalities must pursue a track other than Sec. 7(5), Chap. 2, Bk IV, Administrative Code of 1987 and Sec. 47(2) [and] (3), Chap. 6, Tit. I, Bk V, Administrative Code of 1987 in pursuing administrative complaints against presidential appointees. The appropriate track is provided for by Executive Order No. 13 and its allied EOs.
Further, Sec. 47(2) (3), Chap. 6, Tit. I, Bk V, Administrative Code of 1987 must be correlated to and therefore restricted by Sec. 48 which refers to "Procedures in Administrative Cases Against Non-Presidential Appointees."
Very clearly, the provisions cited by [petitioners] against the administrative discipline of [Enriquez] appear to be out-of-synch with his service classification as a presidential appointee.
Indeed, pursuant to his power of control, the President may supplant and directly assume and exercise the investigatory functions of departments and agencies within the executive department.
x x x x
The President's power of control under the Constitution and the Administrative Code is confined only to the executive department.
[Petitioners] also justified their assumption of jurisdiction over [Enriquez] by asserting that they or at least the Honorable Secretary are the alter egos of the President. The existence of this doctrine of course is undeniable.
But since the President has already spoken through Executive Order No. 13 as quoted above, [petitioners] should have followed the prescriptions thereof instead of doing things apart from and independent of EO 13.
The reasonable interpretation of the President's institution of EO 13 as against presidential appointees is that pursuant to the President's power of control he has taken over through the procedures set forth in the Executive Order all disciplinary matters involving his appointees. This is apparent from three perspectives:
(i) the vesting of jurisdiction in the EO 13 body and its predecessors over administrative cases against presidential appointees;
(ii) the express recognition of only the Office of the Ombudsman's jurisdiction as being concurrent with the EO 13 body, thus excluding concurrency with the Secretary or any other head of office or agency; and
(iii) the Secretary's lack of jurisdiction over presidential appointees.
Further, [petitioners] cannot put forward the alter ego doctrine because the powers they are erroneously invoking are powers expressly provided by the Administrative Code of 1987 to the Secretary sua sponte or as Secretary qua Secretary. The cited provisions of the Administrative Code do not refer to the powers of control and removal of the President because these powers of the President do not derive from statute but from the Constitution and the President's inherent powers.
x x x x
The Executive Orders have the force and effect of law as both an exercise of the President's power under the Constitution and the Administrative Code of 1987. As a result, these EOs cannot be taken lightly and x x x ignored. He is the President and the Principal of [petitioners]. [Petitioners] as the President's alter egos ought not to downgrade and degrade his powers as such.[24] (Emphases and italics in the original)
The Court cannot subscribe to this interpretation.
Disciplinary Authority of the Department Secretary under the Administrative Code
The administrative structure of our government is laid down in the Administrative Code of 1987. Indeed, pursuant to Section 1, Article VII of the 1987 Constitution, Section 11, Chapter 3, Book II of the Administrative Code provides that the executive power shall be vested in the President of the Philippines. Needless to say, not every task in the executive department can be undertaken by the President and its office. Hence, the Administrative Code provides for the organization and maintenance of several departments as are necessary for the functional distribution of the work of the President.[25] Each department shall have jurisdiction over bureaus, offices, regulatory agencies, and government-owned or -controlled corporations assigned to it by law.[26] The authority and responsibility for the exercise of the mandate of the Department and for the discharge of its powers and functions shall be vested in the Secretary, who shall have supervision and control of the Department.[27]
Section 7, Chapter 2, Title III, Book IV of the Administrative Code further provides for the powers and functions of the Department Secretary, viz.:
SEC. 7. Powers and Functions of the Secretary. — The Secretary shall:Corollary, Section 47(2) and (3), Chapter 6, Title I-A, Book V of the Administrative Code provides:
(1) Advise the President in issuing executive orders, regulations, proclamations and other issuances, the promulgation of which is expressly vested by law in the President relative to matters under the jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the Department pursuant to the approved programs of government;
(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient administration of the offices under the Secretary and for proper execution of the laws relative thereto. These issuances shall not prescribe penalties for their violation, except when expressly authorized by law;
(5) Exercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation;
(6) Appoint all officers and employees of the Department except those whose appointments are vested in the President or in some other appointing authority; Provided, However, that where the Department is regionalized on a department-wide basis, the Secretary shall appoint employees to positions in the second level in the regional offices as defined in this Code;
(7) Exercise jurisdiction over all bureaus, offices, agencies and corporations under the Department as are provided by law, and in accordance with the applicable relationships as specified in Chapters 7, 8, and 9 of this Book;
(8) Delegate authority to officers and employees under the Secretary's direction in accordance with this Code; and
(9) Perform such other functions as may be provided by law. (Emphases supplied)
SEC. 47. Disciplinary Jurisdiction. —The foregoing provisions of the Administrative Code unambiguously provide for the Department Secretary's disciplinary jurisdiction over officers and employees under him in accordance with law. Clearly, thus, a bureau director, which heads a mere subdivision of a department, is under the Department Secretary's disciplinary supervision. It is important to emphasize that the aforequoted provisions made no distinction between presidential and non-presidential appointees with regard to the Secretary's disciplinary jurisdiction.
x x x x
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.
(3) An investigation may be entrusted to regional director or similar officials who shall make the necessary report and recommendation to the chief of bureau or office or department within the period specified in Paragraph (4) of the following Section. (Emphases supplied)
Power to Impose Penalty vis-a-vis Power to Investigate
The distinction between presidential and non-presidential appointees becomes relevant only with respect to the Department Secretary's "power to impose penalties" and "power to investigate."
The Revised Rules on Administrative Cases in the Civil Service (RRACCS),[28] as well as the 2017 Rules on Administrative Cases in the Civil Service (RACCS)[29] which superseded the RRACCS, provide the distinction for the disciplinary jurisdiction of the department heads and secretaries. Said rules provide for the disciplinary powers that the CSC and the department heads and secretaries have over non-presidential appointees.
Section 9 of the RRACCS, the applicable rules during Enriquez's service, provides that the department secretaries have original concurrent jurisdiction with the CSC over cases cognizable by the latter, viz.:
SEC. 9. Jurisdiction of Heads of Agencies. — The Secretaries and heads of agencies, and other instrumentalities, provinces, cities and municipalities shall have original concurrent jurisdiction with the Commission over their respective officers and employees. They shall take cognizance of complaints involving their respective personnel. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.Notably, the RRACCS limited the CSC's jurisdiction to those enumerated in the rules. Sections 7 and 8 of the RRACCS provide:
SEC. 7. Cases Cognizable by the Civil Service Commission. — The Civil Service Commission shall take cognizance of the following cases:Relatedly, Section 48 of the Administrative Code provides for the manner of initiation of cases within the disciplinary jurisdiction of the CSC:
A. DisciplinaryB. Non-Disciplinary
- Decisions of Civil Service Commission Regional Offices brought before it on appeal or petition for review;
- Decisions of heads of agencies imposing penalties exceeding thirty (30) days suspension or fine in an amount exceeding thirty (30) days salary brought before it on appeal;
- Complaints brought against Civil Service Commission personnel;
- Complaints against officials who are not presidential appointees;
- Decisions of heads of agencies imposing penalties not exceeding 30 days suspension or fine equivalent thereto but violating due process;
- Requests for transfer of venue of hearing on cases being heard by Civil Service Commission Regional Offices;
- Appeals from the order of preventive suspension; and
- Such other actions or requests involving issues arising out of or in connection with the foregoing enumeration.
SEC. 8. Cases Cognizable by Regional Offices. — Except as otherwise directed by the Commission, the Civil Service Commission Regional Offices shall take cognizance of the following cases:
- Decisions of heads of agencies on personnel actions;
- Decisions of Civil Service Commission Regional Offices;
- Requests for favorable recommendation on petition for the removal of administrative penalties or disabilities;
- Protests against appointments, or other personnel actions, involving non-presidential appointees;
- Requests for Extension of Service;
- Reassignment of public health workers and public social workers brought before it on appeal;
- Request for correction of personal information in the records of the Commission within five (5) years before mandatory retirement; and
- Such other analogous actions or petitions arising out of or in relation with the foregoing enumeration.
A. DisciplinaryB. Non-Disciplinary
- Cases initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omissions were committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and/or the persons complained of are rank-and-file employees of agencies, local or national, within said geographical areas;
- Complaints involving Civil Service Regional Office personnel who are appointees of said office; and
- Petitions to place respondent under preventive suspension.
- Disapproval/Recall of Approval/Invalidation of appointments brought before it on appeal;
- Decisions of heads of agencies, except those of the department secretaries and bureau heads within their geographical boundaries relative to protests and other personnel actions and other non-disciplinary actions brought before it on appeal;
- Requests for accreditation of services; and
- Requests for correction of personal information in the records of the Commission not falling under Section 7(B) Item 7 of this Rules. (Emphases supplied)
SEC. 48. Procedure in Administrative Cases Against Non-Presidential Appointees. — x x xIt is also noteworthy that RRACCS, as well as the RACCS, define a "disciplining authority" to be the person or body "duly authorized to impose the penalty" provided for by law or rules.[30] Hence, read in conjunction with the relevant provisions of the Administrative Code above-quoted, the disciplinary authority, i.e., the power to impose penalty, of the CSC and department secretaries are limited to non-presidential appointees.
(1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person. (Emphasis supplied)
For presidential appointees, the power to impose penalty resides with the President pursuant to his power of control under the Constitution[31] and the Administrative Code.[32] Likewise, the Ombudsman, under the Constitution[33] and Republic Act (R.A.) No. 6770,[34] was given such power to impose penalties. Certainly, concomitant to such disciplinary authority is the power to investigate and to designate a committee or officer to conduct such investigation pursuant to Section 7(5), Chapter 2, Title III, Book IV of the Administrative Code above-cited, as well as the relevant provisions of R.A. No. 6770. In fine, the power to impose penalty necessarily includes the power to investigate. Contrarily, the power to investigate does not necessarily include the power to impose penalty.
While the power to impose penalty remains with the President or the Ombudsman, the power to investigate, as well as to designate a committee or officer to investigate, and thereafter to report its findings and make recommendations, may be delegated to and exercised by subordinates or a special commission or committee specifically created for such purpose. Stated more specifically, while it is the President as the Chief Executive, or the Ombudsman as mandated by law, who has the authority to impose penalty upon erring presidential appointees, it does not preclude said disciplining authorities from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to them the facts, on the basis of which the President or the Ombudsman, as the case may be, make their decision. It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law.[35]
Such delegation of the power to investigate presidential appointees is precisely what was accomplished when E.O. No. 292 or the Administrative Code was signed into law by then revolutionary government President Corazon C. Aquino using her transitory powers, as well as when E.O. Nos. 151, 268, 12, as amended, 13, and 43 were issued by the respective subsequent Chief Executives.
As above-stated, the Administrative Code expressly provides for the Department Secretary's power to investigate and to designate a committee or officer for such purpose. In the same vein, in 1994, President Fidel V. Ramos issued E.O. No. 151,[36] creating the Presidential Commission Against Graft and Corruption (PCAGC), which was specifically tasked to investigate presidential appointees charged with graft and corruption. PCAGC was then abolished and repealed under President Joseph Ejercito Estrada's administration in 2000, through E.O. No. 268,[37] which created the National Anti-Corruption Commission (NACC) and given the powers of an investigating body over charges of graft and corrupt practices against presidential and non-presidential appointees alike. The NACC, however, was never activated. Hence, E.O. No. 12,[38] as amended, under President Gloria Macapagal-Arroyo, abolished both PCAGC and NACC, and created the Presidential Anti-Graft Commission (PAGC), which likewise has the authority to investigate or hear administrative cases or complaints against all presidential appointees. In 2010, under President Benigno Simeon C. Aquino III's administration, the PAGC was abolished and its investigative, adjudicatory, and recommendatory functions were transferred to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) through E.O. No. 13.[39]
At present, President Rodrigo R. Duterte issued E.O. No. 43[40] in 2017, creating the Presidential Anti-Corruption Commission (PACC) "to directly assist the President in investigating and/or hearing administrative cases primarily involving graft and corruption against all presidential appointees classified as Salary Grade '26' and higher."[41] The powers, duties, and functions of the ODESLA were effectively transferred to PACC. PACC also has the authority to recommend to the President the issuance of an order of preventive suspension under the circumstances provided in E.O. No. 43.[42] Notably, its investigative and adjudicatory authority over said class of employees is concurrent with the Ombudsman.[43]
In sum, it bears stressing that the disciplinary jurisdiction of the department secretary over presidential appointees is limited. As above-stated, the power to investigate does not include the power to impose penalty. It has long been settled that the power to decide on such disciplinary matters and impose penalty upon said category of officers remains with the appointing authority.
As held in Baculi v. Office of the President,[44] while the Administrative Code has vested the Department Secretary with the authority to investigate matters involving a presidential appointee, Section 38 of Presidential Decree (P.D.) No. 807[45] or the Civil Service Decree of the Philippines, which was exactly echoed in Section 48, Chapter 7, Title I-A, Book V of the Administrative Code, has drawn a definite distinction between subordinate officers or employees who are presidential appointees and those who are non-presidential appointees with regard to the authority to decide on the disciplinary matter. Said provisions speak of the procedure in administrative cases against non-presidential appointees before the CSC as the latter has no disciplinary authority over presidential appointees. The Court explained that this is so because substantial distinctions set presidential appointees apart from non-presidential appointees. One of such distinctions is that presidential appointees come under the direct disciplining authority of the President pursuant to the well-settled principle that, in the absence of a contrary law, the power to remove or to discipline is lodged in the same authority in whom the power to appoint is vested.[46]
The principle finds basis in the Constitutional grant of power upon the President to appoint such officials as provided in the Constitution and laws.[47] Full discretion is, therefore, given to the President to remove his appointees. Unless otherwise provided by the Constitution, such concomitant power of the appointing authority to remove cannot be attenuated by allowing even his alter ego to discipline and worse, to remove the former's appointee, lest the executive department would be put into a precarious situation where the very person particularly chosen by the President will be removed by his own subordinate without his prior express conformity. Thus, even the doctrine of qualified political agency cannot be used to grant the department heads the power to impose penalty upon erring subordinates who are presidential appointees without prior approval of the President.
This doctrine of qualified political agency or the alter ego doctrine was introduced in our jurisdiction in the landmark case of Villena v. The Secretary of Interior.[48] The Court explained that said doctrine essentially postulates that the heads of the various executive departments are the alter egos of the President and, as such, the actions taken by them in the performance of their official duties are deemed the acts of the President unless the latter disapproves such acts.[49] In said case, the Secretary of Interior investigated then Makati City Mayor Jose D. Villena (Mayor Villena) and found him guilty of bribery, extortion, and abuse of authority. Upon such finding, the Secretary of Interior recommended to the President the suspension from office of Mayor Villena. Upon approval by the President of such recommendation, the Secretary of Interior implemented the suspension. Mayor Villena then questioned his suspension, arguing that the Secretary of Interior had no authority to suspend him from office considering that there was no law granting such power to the Secretary of Interior. According to Mayor Villena it was solely the President who was empowered to discipline local government officials. The Court in said case disagreed with the mayor and upheld his suspension, ruling that the alter ego doctrine justified the suspension ordered by the Secretary of Interior. As can be readily gleaned from this case, even with the doctrine of qualified political agency, the Court upheld the Secretary of Interior's act of imposing penalty considering that the President had already approved the Secretary's recommendation to suspend the mayor. In fine, prior conformity of the President was still necessarily secured.
In Spouses Constantino v. Hon. Ciusia,[50] while the Court upheld the Secretary of Finance's act of executing a debt-relief contract by virtue of the doctrine of qualified political doctrine, among others, the Court included in its disquisition an important qualification, i.e., the Secretary of Finance or any designated alter ego of the President is still bound to secure the latter's prior consent to or subsequent ratification of his acts.
Precisely, this explains the necessity of forwarding the Department Secretary's findings and recommendation to the President with regard to administrative cases against presidential appointees. Granting the Department Secretary the power to impose penalty without the President's prior express conformity would result to a circuitous situation wherein the removal or any action effected by the Department Secretary may later on be countermanded by the President at any time.
Then again, to be clear, this does not prevent the Department Secretary from conducting investigations and forwarding their findings and recommendations to the President for approval. In the alternative, their findings may also be forwarded to the PACC for further investigation and recommendation to the President, or to the Ombudsman in applicable cases.
At this juncture, it is imperative to note that the present case merely involves the DTI Secretary's act of ordering the conduct of an initial investigation on the issues raised against Enriquez; creating and authorizing the SIC to conduct a full investigation thereon; and, of filing a formal charge against Enriquez upon its finding of a prima facie case against the latter. There is no imposition of penalty, much less order of dismissal, from the DTI Secretary involved in this case. Hence, as Sec. Cristobal merely exercised his power to investigate and designate an officer and/or committee to investigate his subordinate pursuant to the Administrative Code, his actions, as well as the resulting report from such investigation should be validly sustained absent any finding of irregularity in the conduct thereof.
E.O. No. 151 and the subsequent E.O.s vis-a-vis the administrative Code |
Inasmuch as such power to investigate was given to the aforesaid Commissions, the power given to the Department Secretary to investigate and to designate a committee or officer to investigate a subordinate, who may be a presidential or non-presidential appointee, cannot likewise be denied.[51] The investigative and recommendatory authority of the fact-finding Commissions under the above-cited executive orders are by no means exclusive and, thus, can be shared with any officer or agency likewise tasked to investigate and recommend findings and conclusions.
Therefore, in the absence of a law or legal justification prohibiting the Department Secretary to conduct its own investigation on its subordinates, such power of the Department Secretary to investigate, even a presidential appointee, under the Administrative Code, should then be upheld.
Furthermore, E.O. No. 151 and the subsequent E.O.s above-cited, or "E.O. No. 13 and its allied E.O.s" as referred to by the RTC in its assailed Decision, could not have repealed the Administrative Code, contrary to the RTC's conclusion.
Foremost, an executive order cannot repeal a law. Ordinarily, since both the Administrative Code and E.O. No. 13 and "its allied E.O.s" are all presidential issuances, one may repeal or otherwise alter, modify or amend the other, depending on which comes later. The intricacy of this case, however, is owed to the fact that E.O. No. 292 or the Administrative Code was signed into law by President Corazon C. Aquino, not merely as an executive act, but in the exercise of her transitory legislative powers under the Freedom Constitution. Section 6, Article XVIII of the 1987 Constitution states that "[t]he incumbent President shall continue to exercise legislative powers until the first Congress convened." The Administrative Code was signed into law on July 25, 1987, or two days before the first Congress convened on July 27, 1987. Hence, having been issued by the President in the exercise of her extraordinary power of legislation during the transition from the authoritarian regime to the revolutionary government, the Administrative Code is not merely an executive order which has the force and effect of law, but is actually a law.[52]
Moreover, basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in accordance with the legal maxim "interpretare et concordare leges legibus est optimus interpretandi modus."[53]
A careful perusal of the invoked executive orders clearly reveals no incongruity with the Administrative Code. As discussed above, the creation and reorganization of the investigative and recommendatory Commissions/Office through said executive orders, do not indicate any intention to totally remove the Department Secretary's power to investigate over his subordinates who are presidential appointees. None of the executive orders provides for an express exclusionary provision that removes such power to investigate from the Department Secretary as provided under the Administrative Code. Thus, said executive orders neither supersede nor conflict with the Administrative Code which allows the Department Secretary to investigate his subordinates, may they be presidential appointees or non-presidential appointees. It is, therefore, flawed to argue and conclude that said executive orders granted the investigative Commissions the exclusive jurisdiction to investigate presidential appointees.
The Unavailability of Appeal from the Department Secretary's Exercise of its Investigative and Recommendatory Function |
The fact that no appeal can be made to the CSC from the findings of the Department Secretary and/or the committee which was designated to conduct the investigation on a presidential appointee, cannot be validly used as a ground to divest the Department Secretary of his statutory authority to exercise such power to investigate, contrary to the RTC's conclusion.
Indeed, as discussed above, the CSC has no disciplinary authority over presidential appointees. Hence, it has neither original nor appellate jurisdiction over disciplinary cases against presidential appointees. Contrary, however, to the court a quo's interpretation, such "void in the appeal process" is the logical consequence of the principle that an appeal may be taken only from a judgment or final order unless otherwise provided by law or executive order. A final judgment or order is one that finally disposes of a case, leaving nothing more to do for the proper authority vested by law to finally decide on the matter.[54]
In the exercise of the Department Secretary's power to investigate presidential appointees, no element of finality characterizes his findings and report considering that from the nature of such power delegated to him, his findings and report are merely recommendatory for the President's consideration. Hence, an appeal is naturally not an available remedy from the Department Secretary's findings and recommendation.
Nevertheless, there is no logical, much less legal and jurisprudential basis, to conclude that such unavailability of appeal from the findings and recommendations of the Department Secretary is a ground to divest the latter of the investigative and recommendatory authority granted to him by law over presidential appointees.
The President's Power of Control vis-a-vis the Department Secretary's Power to Investigate and Recommend |
Once again contrary to the RTC's ruling, to uphold the authority of the Department Secretary to investigate his subordinate who may be a presidential appointee is not to undermine the President's power of control as the Chief Executive. Since the Department Secretary's exercise of disciplinary power is merely investigative and recommendatory, the President retains the power to alter or modify, or even nullify or set aside the former's findings and recommendation, and to substitute his judgment to that of the former. This is precisely the concept of the power of control in administrative law. This is likewise in consonance with the doctrine of qualified political agency as explained above.
Effect of Divesting the Department Secretary of the Power to Investigate Presidential Appointees |
The Power to Investigate Includes the Power to Preventively Suspend |
The power of the Department Secretary to investigate his subordinates being established, such power necessarily includes the authority to impose preventive suspension.
Preventive suspension is authorized under the Administrative Code, viz.:
SEC. 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.[56]Inasmuch as the Department Secretary was given the power to investigate his subordinates by authority of the President, his power to impose preventive suspension also by authority of the President, cannot likewise be denied. It is well to point out that preventive suspension pending investigation is not punitive in nature. In the early case of Nera v. Garcia,[57] the Court explained that suspension is a preliminary step in an administrative investigation. The need for the preventive suspension may arise from several causes, such as the danger of tampering or destruction of evidence in the possession of the person being investigated and the intimidation of witnesses, among others. Thus, to enable an effective and unhampered investigation, and to foreclose any threat to the success of the same, the authority conducting the same should be given the discretion to decide when the person facing administrative charges should be preventively suspended.[58]
Due process of law was observed in the conduct of the investigation on Enriquez. |
The observance of fairness in the conduct of any investigation is at the very heart of procedural due process. The essence of due process is to be heard, and, as applied to administrative proceedings, this means a fair and reasonable opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of. Administrative due process cannot be fully equated with due process in its strict judicial sense, for in the former a formal or trial-type hearing is not always necessary, and technical rules of procedure are not strictly applied. Ledesma v. Court of Appeals elaborates on the well-established meaning of due process in administrative proceedings in this wise:As can be gleaned from the factual backdrop of this case, petitioners complied with the requirements of administrative due process even prior to the actual institution of administrative proceedings against Enriquez. Foremost, while prompted by a news article, petitioners' initiative to conduct a formal investigation against Enriquez was based on its own initial investigation and not on mere allegations and blind news reports. More importantly, several notices were sent to Enriquez apprising him of the issues against him, and directing him to submit an explanation in writing. Enriquez, in turn, had actively responded to said notices, albeit he consistently questioned petitioners' authority. Enriquez was likewise informed of the formal charge, as well as the order of preventive suspension against him. He was again directed to answer the charge, to which Enriquez responded by denying the charges against him, but maintaining his objection to petitioners' authority to conduct investigations and order his preventive suspension.x x x Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. The essence of due process is simply to be heard, or as applied to administrative proceedings, an opportunity to explain one's side, or an opportunity to seek reconsideration of the action or ruling complained of. (Citations omitted)
Clearly, Enriquez could not dispute the observance of his right to due process by petitioners as herein set forth.
The RTC erred in giving due course to the petition for certiorari, prohibition, and mandamus.
The RTC has no jurisdiction over the petition for certiorari, prohibition, and mandamus filed against the questioned acts of the DTI Secretary and the SIC. |
The assailed RTC Decision, as well as the present petition, dealt with the issue of which between the RTC and the CA has jurisdiction over the petition for certiorari, prohibition, and mandamus filed against the DTI Secretary and the SIC under Section 4, Rule 65 of the Rules of Court. Said provision states:
SEC. 4. When and where to file the petition. — x x xThe RTC ruled that since decisions and actions of Department Secretaries and heads of agencies and instrumentalities are appealable to the CSC, not to the CA, it concluded that jurisdiction over a petition for certiorari, prohibition, and mandamus against said officers is with the RTC, not with the CA, pursuant to the first sentence of the provision above-cited. On the other hand, petitioners argue that jurisdiction over said petition against decisions and actions of a quasi-judicial agency performing quasi-judicial function, such as the DTI, is with the CA pursuant to the last sentence of the provision above-cited.
If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the court's appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals.
We agree with petitioners' assertion that the RTC erred in giving due course to Enriquez's petition for certiorari, prohibition, and mandamus, albeit for a different reason.
Petitions for certiorari and prohibition under Rule 65 of the Rules of Court have long been used as remedies to keep lower courts within the confines of their granted jurisdictions. The 1987 Constitution, however, introduced the "expanded" scope of judicial power. Thus, Section 1, Article VIII thereof provides:
SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.In Francisco, Jr. v. The House of Representatives,[60] the Court recognized that this expanded jurisdiction was meant "to ensure the potency of the power of judicial review to curb grave abuse of discretion by 'any branch or instrumentalities of government'." Further distinctions between the traditional certiorari petitions under Rule 65 of the Rules of Court and that under the expanded jurisdiction were exhaustively discussed by the Court En Banc in the case of Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. Department of Health.[61]
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)
One of the material distinctions is the cited ground. A certiorari petition under Rule 65 of the Rules of Court speaks of lack or excess of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction, while the remedy under the court's expanded jurisdiction expressly mentions only grave abuse of discretion amounting to lack or excess of jurisdiction. The distinction is apparently not legally significant as to what remedy should be resorted to, traditional or expanded, when the case involves an action with grave abuse of discretion. When, however, lack of jurisdiction is involved, no consideration is made as to how the government entity exercised its function. Indeed, no discretion is allowed in areas outside of an agency's granted authority.[62]
Certainly, before a court could take cognizance of a case filed before it, it should primarily determine the ground on which its jurisdiction is being invoked. It is, thus, imperative to look into the ground upon which the petition is based. In this case, Enriquez alleged lack of jurisdiction on the part of the DTI Secretary and the SIC over him in filing the certiorari petition. Thus, the traditional certiorari mode under Rule 65 of the Rules of Court should be Enriquez's remedy.
However, another distinction between the traditional certiorari petition under Rule 65 of the Rules of Court and certiorari pursuant to the expanded jurisdiction under Section 1(2), Article VIII of the Constitution is equally relevant in this case. Aside from the cited ground, another critical question comes up and that is, under what capacity did the respondent-agency act?
In order that a special civil action for certiorari under Rule 65 may be invoked, the petition must be directed against any tribunal, board, or officer exercising judicial or quasi-judicial functions, which acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no plain, speedy, and adequate remedy in the ordinary course of law.[63]
Similarly, a petition for prohibition may be filed by an aggrieved person against a tribunal, corporation, board, officer or person, exercising judicial, quasi-judicial, or ministerial functions, which were done without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is likewise no plain, speedy, and adequate remedy in the ordinary course of law, praying that judgment be rendered commanding the respondent to desist from further proceedings in the subject action or matter, or otherwise, for the grant of such incidental reliefs as law and justice may require.[64]
A petition for mandamus, on the other hand, is a remedy available only when a tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no plain, speedy and adequate remedy in the ordinary course of law.[65] The main objective of mandamus is to compel the performance of a ministerial duty on the part of the respondent.[66]
In other instances, the petition must be filed based on the court's expanded jurisdiction.[67]
It is important, thus, to determine the nature of the questioned act/s to determine the available and proper remedy under the law.
It bears stressing that what is being assailed in this case is the Department Secretary's exercise of his power to investigate a subordinate. The Department Secretary's limited disciplinary authority being assailed herein involves a function which is not judicial, quasi-judicial, nor ministerial in nature for his act to be the proper subject of certiorari, prohibition, or mandamus. He is not clothed with power to adjudicate and impose a penalty with regard to administrative disciplinary actions against subordinates who are presidential appointees as above-discussed. His function is merely investigative and recommendatory, which is purely executive or administrative.
Quasi-judicial or administrative adjudicatory power is that which vests upon the administrative agency the authority to adjudicate the rights of persons before it. It involves the power to hear and determine questions of fact and, after such determination, to decide in accordance with the standards laid down by law issues which arise in the enforcement and administration thereof. In the performance of a quasi-judicial, and of course judicial, acts, there must be a law that gives rise to some specific rights of persons or property from which the adverse claims are rooted, and the controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with power and authority to determine the law and adjudicate the right of the contending parties.
Neither is there a ministerial duty involved in this case which may be compelled to be done through mandamus. While Enriquez was temporarily excluded from his office pending investigation, the remedy of mandamus is not available to compel the investigating officer or committee to lift the order of preventive suspension as the same is authorized by law pending investigation, unless such suspension exceeded the period of 90 days for non-presidential employees, or the period of suspension for presidential employees became unreasonable as the circumstances of the case may warrant.[68]
Hence, the petition for certiorari, prohibition, and mandamus was not proper, whether it be filed before the RTC or the CA.
This Petition is not rendered moot and academic by the termination of Enriquez's service.
Having established the DTI Secretary's investigative and recommendatory disciplinary authority over Enriquez, we cannot subscribe to the latter's argument that the petition should be dismissed for becoming moot and academic due to his separation from service.
A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case.[69] The instant case is not mooted by Enriquez's separation from service considering that the administrative case against him before the DTI is not mooted by such cessation of service. It must be pointed out that prior to the termination of his term of office, a formal charge for Gross Insubordination, Gross Misconduct/Gross Neglect of Duty, Grave Abuse of Authority, and Conduct Prejudicial to the Best Interest of the Service had already been filed after a determination of a prima facie case against him upon the conclusion of SIC's preliminary investigation. The disquisition of the Office of the President in Administrative Order (A.O.) No. 67, Series of 2003[70] is relevant to the issue and instructive:
While it is generally conceded that an administrative proceeding is predicated on the holding of an office or position in the government (Dianalon vs. [Quintillan], Adm. Case No. 116, August 29, 1969, 29 SCRA 347), the rule is qualified and, therefore, recognized to admit an exception, as amplified by the Supreme Court, in this wise:As the administrative case against Enriquez survives the cessation of his tenure, this Court is still well-within its jurisdiction to resolve the legal issues raised before it."It was not the intent of the Court in the case of Quintillan to set down a hard and fast rule that the resignation or retirement of a respondent judge as the case may be renders moot and academic the administrative case pending against him; nor did the Court mean to divest itself of jurisdiction to impose certain penalties short of dismissal from the government service should there be a finding of guilt on the basis of the evidence. In other words, the jurisdiction that was Ours at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased to be in office during the pendency of his case. The Court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustices and pregnant with dreadful and dangerous implications. For what remedy would the people have against a judge or against any other public official who resorts to wrongful and illegal conduct during his last days in office? What would prevent some corrupt and unscrupulous magistrate from committing abuses and other condemnable acts knowing fully well that he would soon be beyond the pale of the law and immune to all administrative penalties? If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation." People vs. Valenzuela, 135 SCRA 712, citing Perez vs. Abiera, Adm. Case No. 223-J, June 11, 1975, 64 SCRA 302)Stated somewhat differently, the severance of official ties with the government of a public official or employee constitutes a bar to the subsequent filing of an administrative case against him for an act or acts committed during his incumbency. A sesu contrario, once an administrative charge is initiated against such respondent, his compulsory or optional retirement, resignation or separation from the service during the pendency thereof does not nullify or moot the proceedings, which should continue to its logical conclusion. And if so closed or terminated for that reason alone, it may be reopened by the Office of the President on its own motion, if respondent is a presidential appointee, or at the instance of the department head concerned, if non-presidential appointee. This is the pith and core of the clarificatory opinion of the Secretary of Justice (Opinion No. 30 dated Feb. 17, 1978) vis-a-vis the query of whether the retirement, resignation or separation from public office of an employee would divest the department head, or the head of any concerned agency of the government, of jurisdiction to act upon an administrative case filed against the employee during his tenure of employment, to wit:The Department of Justice has taken the position, as early as 1962, that the attainment of the age of compulsory retirement by a respondent does not ipso facto close the pending administrative proceedings against him. Although the highest penalty in an administrative case is that of dismissal or separation from the service, which is already accomplished by the respondent's compulsory retirement, the proceedings may still continue for purposes of determining whether or not the respondent is guilty with the end in view of imposing penalties incident to dismissal for cause. The Department has even sustained the view, in the case of Undersecretary Tambokon, that the administrative case, if already closed or terminated, may be reopened by the Office of the President motu propio or at the instance of the Department Secretary. (Emphases supplied, underscoring in the original)
Public office is a public trust and public officers and employees must, at all times, be accountable to the people.[71] Hence, the State must be vigilant to preserve the inviolability of public office. Every initiative to cleanse the roster of public employees and officials must be upheld so long as said efforts are exercised within the bounds of law. In this case, pursuant to the foregoing legal considerations, it is established that the Department Secretary's exercise of the power to investigate and to designate a committee or officer for such purpose, a subordinate, whether the latter be a non-presidential or presidential appointee, is well-founded in law and jurisprudence.
WHEREFORE, premises considered, the Petition is GRANTED. The Decision of the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. R-QZN-16-05101 is hereby REVERSED and SET ASIDE. Accordingly, the Department of Trade and Industry is ORDERED to proceed with dispatch with its investigation on Danilo B. Enriquez's administrative case. Thereafter, the Secretary of the Department of Trade and Industry may forward his findings and recommendations to the Office of the President for the imposition of the proper penalties, as may be warranted.
SO ORDERED.
Peralta, C. J., Gesmundo, Hernando, Carandang, Inting, Lopez, and Gaerlan, JJ., concur.
Perlas-Bernabe, J., Please see separate Concurring Opinion.
Leonen J., See separate concurring opinion.
Caguioa, J., See Concurring and Dissenting Opinion.
Lazaro-Javier, J., Please see Concurring and Dissenting Opinion.
Zalameda, J., with separate Concurring Opinion.
Delos Santos, J., on leave.
[1] Rollo, pp. 59-110.
[2] Penned by Acting Presiding Judge Cleto R. Villacorta III; id. at 175-201.
[3] Philippine Star, April 3, 2016, "Curse of the Haciendero Presidents" by Cito Beltran under his column "Ctalk"; id. at 202-203.
[4] Id. at 559-560.
[5] Id. at 206-209.
[6] Id. at 561-563.
[7] Id. at 210-211.
[8] Id. at 212-213.
[9] Id. at 214-216.
[10] Id. at 217-218.
[11] Id. at 219-220.
[12] Id. at 221-223.
[13] Id. at 224.
[14] Id. at 226-233.
[15] Id. at 234-237.
[16] Id. at 287-291.
[17] Id. at 253-285.
[18] Id. at 284-285.
[19] Id. at 454-493.
[20] Id. at 201.
[21] Id. at 509-511.
[22] Id. at 524-533.
[23] Id. at 558-618.
[24] Rollo, pp. 448-450.
[25] Executive Order No. 292 (1987), Book IV, Chapter 1, Sec. 1.
[26] Id. at Sec. 4.
[27] Id. at Chapter 2, Sec. 6.
[28] The Civil Service rules applicable during Enriquez's tenure. Promulgated on November 8, 2011.
[29] Promulgated on July 3, 2017.
[30] RRACCS, Sec. 4(h) and RACCS, Section 4(j).
[31] CONSTITUTION, Art. VII, Sec. 17.
[32] Executive Order. No. 292 (1987), Book 111, Title 1, Chapter 1, Sec. 1.
[33] CONSTITUTION, Art. XI, Sec. 13.
[34] Republic Act No. 6770 (1989), Sec. 25.
[35] See American Tobacco Company v. Director of Patents, 160-A Phil. 439, 446 (1975).
[36] CREATING A PRESIDENTIAL COMMISSION TO INVESTIGATE ADMINISTRATIVE COMPLAINTS INVOLVING GRAFT AND CORRUPTION. Signed on January 11, 1994.
[37] CREATING THE NATIONAL ANTI-CORRUPTION COMMISSION AND ABOLISHING THE PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION CREATED UNDER EXECUTIVE ORDER 151, S. 1994, AS AMENDED. Signed on July 18, 2000.
[38] CREATING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES, AND FUNCTIONS AND FOR OTHER PURPOSES. Signed on April 16, 2001.
[39] ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORY AND RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE PRESIDENT. Signed on November 15, 2010.
[40] CREATING THE PRESIDENTIAL ANTI-CORRUPTION COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES AND FUNCTIONS, AND FOR OTHER PURPOSES. Signed on October 4, 2017.
[41] Executive Order No. 43 (2017), Sec. 5.
[42] Id. at Sec. 6.
[43] Id.
[44] 807 Phil. 52 (2017).
[45] PROVIDING FOR THE ORGANIZATION OF THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH PROVISIONS OF THE CONSTITUTION, PRESCRIBING ITS POWERS AND FUNCTIONS AND FOR OTHER PURPOSES. Enacted on October 6, 1975.
[46] Baculi v. Office of the President, supra note 44, at 64.
[47] CONSTITUTION, Art. VII, Sec. 16; Executive Order No. 292 (1987), Book III, Title I, Chapter 5, Sec. 16.
[48] 67 Phil. 451 (1939).
[49] Atty. Manalang-Demigillo v. Trade and Investment Development Corporation of the Philippines, 705 Phil. 331, 347-348 (2013).
[50] 509 Phil. 486 (2005).
[51] See Hon. Joson v. Executive Secretary Torres, 352 Phil. 888, 914 (1998).
[52] See Philippine Association of Service Exporters, Inc. (PASEI), v. Hon. Torres, 296-A Phil. 427, 432 (1993).
[53] "To interpret and harmonize laws is the best method of interpretation." Civil Service Commission v. Court of Appeals, 696 Phil. 230, 259 (2012).
[54] See Spouses Mendiola v. Court of Appeals, 691 Phil. 244, 261 (2012).
[55] See Review Center Association of the Philippines v. Executive Secretary Ermita, 602 Phil. 342, 366 (2009), citing Ople v. Torres, 354 Phil. 948 (1998).
[56] Executive Order No. 292 (1987), Book V, Chapter 4, Sec. 51.
[57] 106 Phil. 1031 (1960).
[58] Dra. Buenaseda v. Secretary Flavier, 297 Phil. 719, 727-728 (1993).
[59] 721 Phil. 34, 39-40 (2013).
[60] 460 Phil. 830 (2003).
[61] 802 Phil. 116 (2016).
[62] Id. at 143.
[63] RULES OF COURT, Rule 65, Sec. 1.
[64] Id. at Sec. 2.
[65] Id. at Sec. 3.
[66] Spouses Dacudao v. Secretary Gonzales, 701 Phil. 96, 110 (2013).
[67] Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. Department of Health, supra note 61, at 142.
[68] Baculi v. Office of the President, supra note 44, at 71.
[69] Office of the Ombudsman v. Andutan, Jr., 670 Phil. 169, 186 (2011), citing Pagano v. Nazarro, Jr., 560 Phil. 96, 105 (2007).
[70] Imposing the Penalty of Fine Equivalent to Six Months Salary on Atty. Fidel H. Borres, Jr., Provincial Agrarian Reform Adjudicator, Agusan del Norte.
<http://www.officialgazette.gov.ph/2003/03/31/administrative-order-no-67-s-2003/> (visited June 1, 2020)
[71] Office of the Ombudsman and the Fact-Finding Investigation of the Bureau (FFIB), Office of the Ombudsman for the Military and other Law Enforcement Officers (MOLEO) v. PS/Supt. Espina, 807 Phil. 529, 546 (2017).
SEPARATE CONCURRING OPINION
PERLAS-BERNABE, J.:
Unless otherwise delegated, a Department Secretary cannot exercise complete and full disciplinary authority over a subordinate department official who is, at the same time, a presidential appointee on the ground that he is an alter ego of the President. Barring due delegation, the Secretary's power is limited to investigation and recommendation, which findings he may forward to the President for his approval/disapproval and consequently, the imposition of the appropriate penalty.
To explain, while the Administrative Code authorizes Department Secretaries to "[e]xercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation,"[1] and provides that they shall have "jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction,"[2] these powers are circumscribed by the rule that: "[p]residential appointees come under the direct disciplining authority of the President. This proceeds from the well-settled principle that, in the absence of a contrary law, the power to remove or to discipline is lodged in the same authority on which the power to appoint is vested."[3]
However, it should be clarified that the direct disciplinary authority of the President does not divest Department Secretaries of their power to conduct investigations, and incidental thereto, preventively suspend presidential appointees within their department. In order to harmonize the principles and provisions of law, Department Secretaries are only bereft of the power to impose penalties, but not the power to investigate. This has already been recognized by the Court in Baculi v. Office of the President (Baculi)[4] as well as in Department of Health v. Camposano (Dept. of Health).[5]
In Baculi, therein petitioner Francisco T. Baculi (Baculi), a presidential appointee under the Department of Agrarian Reform (DAR), was investigated by the DAR Secretary through the Regional Investigating Committee (RIC) for certain irregular contracts. Finding a prima facie case against Baculi based on the RIC reports, the DAR Secretary filed a formal charge against him before the DAR Legal Affairs Office. He was eventually found guilty and was dismissed from service. On appeal, the Court of Appeals nullified the order of dismissal for lack of authority, and instead, directed the DAR Secretary to forward his findings and recommendations to the President, who all the same ordered the dismissal of Baculi. Baculi questioned the validity of the dismissal as it was based on a void report given that the RIC had no jurisdiction to investigate a presidential appointee such as himself. However, the Court affirmed Baculi's dismissal by the President. It held that "Baculi, as a presidential appointee, came under the disciplinary jurisdiction of the President in line with the principle that the 'power to remove is inherent in the power to appoint.' As such, the DAR Secretary held no disciplinary jurisdiction over him." Nevertheless, it upheld the validity of the RIC report finding that "[i]n the absence of a law or administrative issuance barring the DAR-RIC from conducting its own investigation of Baculi even when there was no complaint being first filed against him, the eventual report rendered after investigation was valid."[6]
Meanwhile, in Dept. of Health, the Court held that:
The Administrative Code of 1987 vests department secretaries with the authority to investigate and decide matters involving disciplinary actions for officers and employees under the former's jurisdiction. Thus, the health secretary had disciplinary authority over respondents.At this juncture, I find it apt to address respondent's argument that the case had already been rendered moot and academic by his cessation from office. The rule is that "jurisdiction at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent had ceased in office during the pendency of the case."[8] The rationale is that cessation from office "is not a way out to evade administrative liability when facing administrative sanction. [It] does not preclude the finding of any administrative liability to which he or she shall still be answerable."[9]
Note that being a presidential appointee, Dr. Rosalinda Majarais was under the jurisdiction of the President, in line with the principle that the "power to remove is inherent in the power to appoint." While the Chief Executive directly dismissed her from the service, he nonetheless recognized the health secretary's disciplinary authority over respondents when he remanded the PCAGC's findings against them for the secretary's "appropriate action."
As a matter of administrative procedure, a department secretary may utilize other officials to investigate and report the facts from which a decision may be based. In the present case, the secretary effectively delegated the power to investigate to the PCAGC.[7] (Emphasis supplied)
Here, the DTI Secretary, through the Special Investigation Committee (SIC), had already commenced investigation proceedings against respondent as early as April 2016. In fact, respondent was already served with a "Formal Charge with Preventive Suspension" on May 20, 2016,[10] through which he was officially notified of the charges against him, placed in preventive suspension, and directed to file an answer, which he later did.[11] These incidents all occurred before June 30, 2016, or the date when he ceased from office. In the Supreme Court, the rule is that the administrative complaint must first be docketed prior to the respondent's cessation from office; otherwise, jurisdiction is lost.[12] However, in this instance, a Formal Charge filed by the investigating committee signifies the institution of the complaint. In Baculi, the Court observed that the formal charge filed by the Department of Agrarian Reform — Regional Investigating Committee, which is similar to the SIC in this case, "became the administrative complaint contemplated by law."[13] Hence, based on the foregoing, the case has not been rendered moot and academic.
In fine, considering the limited power of a Department Secretary over a subordinate official within his department who is, at the same time, a presidential appointee as herein discussed, I vote to grant the petition but only in part, the reasons for which shall be discussed below.
To recount, records show that the Regional Trial Court (RTC), in a Decision[14] dated June 27, 2016: (a) nullified the formal charges against respondent; (b) enjoined the SIC from hearing and adjudicating the charges against respondent; and (c) ordered petitioners to restore respondent to his post. In so ruling, the RTC held that petitioner DTI Secretary Cristobal had no disciplinary authority over respondent, considering that, as a presidential appointee, the latter fell under the direct disciplinary authority of the President, who, at that time, had delegated the authority to investigate, hear, and decide administrative cases against all presidential appointees in the Executive Branch with at least a Salary Grade of "26" to the ODESLA-IAD.[15] Petitioners assailed the aforesaid RTC Decision, arguing that "[t]he exercise of administrative disciplinary authority throughout the Executive Branch is among the multifarious functions of the Chief Executive that may be performed by the Secretaries over their respective Departments in the regular course of business, which may be presumed as acts of the Chief Executive, unless disapproved or reprobated by him."[16] Further, the petition states that "Department Secretaries must have the power, as an alter ego of the President, to act upon erring officers and employees under them."[17] In their petition, petitioners did not qualify or distinguish between the Department Secretary's power to investigate and recommend vis-a-vis the power to impose a penalty. In fact, it appears that petitioners argue for full and complete disciplinary authority of a Department Secretary over a subordinate department official albeit appointed by the President based on the alter ego doctrine. As explained in this Opinion, there is a crucial distinction between the power to investigate and recommend vis-a-vis the power to impose a penalty. This was not accounted for in the petition; hence, it should only be partly granted. Accordingly, the ultimate conclusion is that the RTC Decision must be reversed and set aside insofar as it failed to recognize the limited power of the Department Secretary to investigate and recommend. In this limited respect, the investigation against respondent is valid and hence, allowed to proceed. The resulting findings and recommendations may then be forwarded to the President, through the Office of the President, who has the power to impose penalties against his appointees.
[1] Paragraph 5, Section 7, Chapter 2, Book IV of Executive Order No. (EO) 292, entitled "INSTITUTING TUB 'ADMINISTRATIVE CODE OF 1987'" (July 25, 1987).
[2] Paragraph 2, Section 47, Chapter 7, Book V of EO 292.
[3] Pichay, Jr. v. Office of the Deputy Executive Secretary for Legal Affairs-IAD, 691 Phil. 624, 645 (2012). See also Baculi v. Office of the President, 807 Phil. 52, 73 (2017), supra; Larin v. Executive Secretary, 345 Phil. 962, 983 (1997); and Office of the President v. Cataquiz, 673 Phil. 318, 350 (2011).
[4] 807 Phil. 52 (2017).
[5] 496 Phil. 886 (2005).
[6] Supra note 4; emphases and underscoring supplied.
[7] Supra note 5; emphasis supplied.
[8] Office of the Court Administrator v. Hamoy, 489 Phil. 296 (2005).
[9] Office of the Ombudsman v. Andutan, Jr., 670 Phil. 169 (2011).
[10] See Formal Charge with Preventive Suspension dated May 19, 2016 (rollo, pp. 234-237) which was tendered to respondent in his office on 2:53 p.m. of May 20, 2016 (sec id. at 252).
[11] "[A]n administrative proceeding may be commenced in one of two ways: (1) upon a charge by the Department or Agency head; or (2) upon a complaint filed by any other person." Bueno v. Cordoba, Jr., G.R. No. L-23932, April 27, 1967, 126 Phil. 281, 285. (emphasis supplied).
[12] See Office of the Court Administrator v. Andaya, 712 Phil. 33 (2013).
[13] Baculi, supra note 4.
[14] Rollo, pp. 175-201. Penned by Acting Presiding Judge Cleto R. Villacorta III.
[15] Id. at 177-198.
[16] Id. at 143.
[17] Id. at 144.
SEPARATE CONCURRING AND DISSENTING OPINION
LEONEN, J.:
I concur in the result. However, I dissent from the ponencia's decision to limit a cabinet secretary's power over a presidentially appointed subordinate to investigation and recommendation. Doing so effectively removes the power to impose penalties from the president's alter-ego.
Presidential control over the executive branch is provided in Article VII, Section 17 of the Constitution, which states: "The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed."
However, the president's numerous and varied functions call for the delegation of his or her powers of control to the cabinet secretaries, who are then deemed to act on the president's behalf under the doctrine of qualified political agency or the alter-ego doctrine.[1]
The doctrine of qualified political agency was introduced in Villena v. The Secretary of Interior,[2] where this Court explained:
[A]ll executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.[3] (Citations omitted)Planas v. Gil[4] then emphasized that the official acts of cabinet secretaries, who are the "authorized assistants and agents in the performance of [the president's] executive duties,"[5] are presumed to be the president's own acts.
Nonetheless, the president's power to delegate authority to cabinet members is not absolute, and there are some powers that only the president may personally wield. In Spouses Constantino, Jr. v. Cuisia,[6] this Court clarified:
Nevertheless, there are powers vested in the President by the Constitution which may not be delegated to or exercised by an agent or alter ego of the President. Justice Laurel, in his ponencia in Villena, makes this clear:The ponencia posits that "[f]or presidential appointees, the power to impose penalties resides with the President pursuant to his [or her] power of control under the Constitution and the Administrative Code."[8] It stresses that cabinet members can only investigate and recommend penalties on such appointees.[9]Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it should be observed that there are certain acts which, by their very nature, cannot be validated by subsequent approval or ratification by the President. There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, in his power to suspend the writ of habeas corpus and proclaim martial law (PAR. 3, SEC. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec. 11, idem).These distinctions hold true to this day. There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import.[7] (Citation omitted)
I disagree.
The power to discipline a subordinate is not "of similar gravitas and exceptional import"[10] to declaring martial law and suspending the writ of habeas corpus, as exemplified in Spouses Constantino, Jr., both of which understandably require the exclusive exercise of the president's power. Rather, the power to discipline a subordinate can be validly delegated to cabinet secretaries as part of their supervision and control over their respective departments under the Administrative Code.
Book IV, Chapter 2, Section 7 of the Administrative Code enumerates a cabinet secretary's powers and functions:
SECTION 7. Powers and Functions of the Secretary. — The Secretary shall:A cabinet secretary's power to discipline a subordinate can be found in Section 7(5), which adds that this power includes investigation and the creation of a committee for such purpose. Section 7(5) does not distinguish between presidential appointees and non-presidential appointees when it comes to the secretary's power to discipline. Neither does Section 7(7), which refers to the power of control, make any distinction. In fact, the distinction only crops up in Section 7(6), which refers to the power to appoint. Hence, in exercising disciplinary and control powers, a cabinet secretary does not need to distinguish between presidential appointees and non-presidential appointees.
In declaring[11] that cabinet secretaries have no disciplinary power over presidential appointees, the ponencia relies on Section 38[12] of the Civil Service Decree and Book V, Title I-A, Chapter 7, Section 48[13] of the Administrative Code. However, these provisions, as Justice Amy Lazaro-Javier (Justice Lazaro-Javier) observes, do not provide a statutory basis to the ponencia's declaration. They merely describe the procedure to be followed in administrative complaints against non-presidential appointees; they do not define the jurisdiction of cabinet secretaries over subordinates who are presidential appointees.[14]
In 2001, Executive Order No. 12 created the Presidential Anti-Graft Commission[15] to investigate presidential appointees with Salary Grade 26 and higher, and then to submit a report and recommendation to the president.[16] Later, in 2010, Executive Order No. 13 abolished[17] the Presidential Anti-Graft Commission and transferred its functions to the Office of the Deputy Executive Secretary for Legal Affairs.[18]
In 2017, Executive Order No. 43 created the Presidential Anti-Corruption Commission to hear and investigate administrative cases and complaints,[19] as well as conduct lifestyle checks,[20] against presidential appointees accused of graft and corruption. The investigative and recommendatory functions of the Office of the Deputy Executive Secretary for Legal Affairs were transferred to the Presidential Anti-Corruption Commission.[21]
Nothing in the wordings of Executive Order Nos. 12, 13, or 43 removed the cabinet secretary's delegated authority to investigate and discipline its erring presidentially appointed subordinates. While the executive orders uniformly provided for the repeal of "other issuances, orders, rules and regulations,"[22] they did not expressly repeal any portion of the Administrative Code. Further, it is canon that an executive order cannot repeal a law.
Thus, as it stands, the power to investigate presidential appointees can either be delegated, as in the case of cabinet secretaries exercising their power of control and supervision over their subordinates, or can be exercised by the president directly through the Presidential Anti-Corruption Commission for complaints involving presidential appointees with a salary grade of 26 or higher.
Contrary to the ponencia's statement that cabinet secretaries have no power to discipline and impose penalties on presidential appointees,[23] they retain the power to discipline both presidential appointees and non-presidential appointees. They are, after all, the president's alter-egos, whose acts are presumed to be the president's—unless they are reversed or disapproved by the president. As Justice Lazaro-Javier puts it, it is best to leave the disciplining of a subordinate to the cabinet secretary as "he or she knows better how the presidential appointee has been performing or conducting himself or herself in the public service."[24] Ultimately, though, the final say still belongs with the president, as the cabinet secretary's decision "remains subject to the president's disapproval or reversal."[25]
Additionally, to subscribe to the ponencia's train of thought that only the president may impose penalties, and his or her subordinates are limited to investigating and recommending penalties, would be to deny a respondent the remedy of an appeal. By withholding the power to discipline from cabinet secretaries, the president's disciplinary action will immediately become final without the possibility of an appeal.
The power of control contained in Article VII, Section 17 of the Constitution means that the president can "alter or modify or nullify or set aside"[26] a subordinate officer's action and substitute it with his or her own judgment. It gives the president the opportunity to correct the subordinate's actions.
Nonetheless, the issue raised before this Court is limited to petitioner Adrian Cristobal, Jr., the Department of Trade and Industry Secretary, on his exercise of the power to discipline in connection with an investigation against respondent Danilo B. Enriquez. The issue does not involve the legality of petitioner's exercise of the power to impose penalties against a presidential appointee.
Thus, I concur with the ponencia that petitioner-secretary, as the President's alter-ego, possessed the power to investigate, create a committee to investigate the complaints and allegations against respondent, and preventively suspend respondent during the course of the investigation.
ACCORDINGLY, I vote to GRANT the Petition.
[1] Villena v. The Secretary of Interior, 67 Phil. 451, 463 (1939) [Per J. Laurel, En Banc].
[2] 67 Phil. 451 (1939) [Per J. Laurel, En Banc].
[3] Id. at 463.
[4] 67 Phil. 62 (1939) [Per J. Laurel, En Banc].
[5] Id. at 77.
[6] 509 Phil. 486 (2005) [Per J. Tinga, En Banc].
[7] Id. at 518.
[8] Ponencia, p. 12.
[9] Id. at 13.
[10] Spouses Constantino, Jr. v. Cuisia, 509 Phil. 486, 518 (2005) [Per J. Tinga, En Banc].
[11] Ponencia, pp. 12-14.
[12] Presidential Decree No. 807 (1975), sec. 38(a) provides:
SECTION 38. Procedure in Administrative Cases Against Non-Presidential Appointees. — (a) Administrative proceedings may be commenced against a subordinate officer or employee by the head of department or office of equivalent rank, or head of local government, or chiefs or agencies, or regional directors, or upon sworn, written complaint of any other persons.
[13] ADM. CODE, Book V, Title I-A, Ch. 7, sec. 48 provides:
SECTION 48. Procedure in Administrative Cases Against Non-Presidential Appointees. — (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person.
[14] J. Lazaro-Javier, Concurring and Dissenting Opinion, pp. 9-10.
[15] Executive Order No. 12 (2001), sec. 1 provides:
SECTION 1. Creation. — The Presidential Anti-Graft Commission, hereinafter referred to as the "Commission", is hereby created under the Office of the President, pursuant to Article VII, Section 17 of the Constitution.
[16] See Executive Order No. 12 (2001), sec. 4(b) and (e) and sec. 8.
[17] Executive Order No. 13 (2010), sec. 3 provides:
SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC). To enable the Office of the President (OP) to directly investigate graft and corrupt cases of the Presidential appointees in the Executive Department including heads of government-owned and controlled corporations, the Presidential Anti-Graft Commission (PAGC) is hereby abolished and their vital functions, particularly the investigative, adjudicatory and recommendatory functions and other and functions inherent or incidental thereto, transferred to the office of the Deputy Secretary for Legal Affairs (ODESLA), OP in accordance with the provisions of this Executive Order.
[18] Executive Order No. 13 (2010), sec. 3 provides:
SECTION 3. Reconstructuring of the Office of the Deputy Executive Secretary for Legal Affairs, OP.
In addition to the Legal and Legislative Divisions of the ODESLA, the Investigative and Adjudicatory Division shall be created.
The newly created Investigative and Adjudicatory Division shall perform the powers, functions and duties mentioned in Section 2 hereof, of PAGC.
The Deputy Executive Secretary for Legal Affairs (DESLA) will be the recommending authority to the President, thru the Executive Secretary, for approval, adoption or modification of the report and recommendations of the Investigative and Adjudicatory Division of ODESLA.
[19] Executive Order No. 43 (2017), sec. 1 provides:
SECTION 1. Creation. The Presidential Anti-Corruption Commission, hereinafter referred to as the "Commission," is hereby created under the Office of the President to directly assist the President in investigating an/or hearing administrative cases primarily involving graft and corruption against all presidential appointees, as defined in Section 5 hereof, and to perform such other similar duties as the President may direct.
[20] Executive Order No. 43 (2017), sixth Whereas clause.
[21] Executive Order No. 43 (2017), sec. 12 provides:
SECTION 12. Transfer of Power, Duties, and Functions. Consistent with the provisions of this Order, the investigative, recommendatory, and other incidental functions of the defunct Presidential Anti-Graft Commission (PAGC), which were transferred to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) by virtue of EO No. 13 (s. 2010) shall be transferred to the Commission; provided, that the ODESLA shall retain its functions of formulating national anti-corruption plans, policies, and strategies, implementing anti-corruption initiatives of the government, and monitoring compliance therewith, which include, but shall not be limited to: (1) the review and implementation of the Philippines' compliance with the United Nations Convention against Corruption (UNCAC) pursuant to EO No. 171 (s. 2014); (2) the implementation of the Integrity Management Program (IMP) pursuant to EO No. 176 (s. 2014); and (3) coordination with the Inter-Agency Anti-Graft Coordinating Council.
[22] Executive Order No. 12 (2001), sec. 19. See also Executive Order No. 13 (2010), sec. 6 and Executive Order No. 43 (2017), sec. 17.
[23] Ponencia, p. 14.
[24] J. Lazaro-Javier, Concurring and Dissenting Opinion, p. 13.
[25] Philippine Institute for Development Studies v. Commission on Audit, G.R. No. 212022, August 20, 2019, <http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65612> [Per J. Leonen, En Banc].
[26] Mondano v. Silvosa, 97 Phil. 143, 148 (1955) [Per J. Padilla, First Division].
CONCURRING AND DISSENTING OPINION
CAGUIOA, J.:
The petition should be dismissed for lack of merit. Though I do not agree with certain pronouncements of the lower court, it reached the correct decision consistent with the rule in Baculi v. Office of the President[1] (Baculi).
Disciplinary authority over presidential appointees belongs concurrently to the Office of the President (OP) and the Office of the Ombudsman (OMB). Thus, the conduct of the formal investigation of a presidential appointee contemplated under Sections 47 to 52 of Chapter 7, Subtitle A, Title 1, Book V of the Executive Order No. 292 or the Administrative Code of 1987 (Administrative Code), subsequent to the filing of a complaint or Formal Charge is exclusively within the jurisdiction of the OP and OMB.
However, there is no legal impediment to a preliminary investigation by the Secretary of a subordinate short of taking disciplinary action (e.g., placing a presidential appointee under preventive suspension or filing a formal charge, as in this case). This is inherent to the power of supervision and control over a department that a Secretary is given by law.
Sections 6 and 7, Chapter 2, Book IV of the Administrative Code read:
SECTION 6. Authority and Responsibility of the Secretary. — The authority and responsibility for the exercise of the mandate of the Department and for the discharge of its powers and functions shall be vested in the Secretary, who shall have supervision and control of the Department.Certainly, the Secretary has the power to investigate a subordinate for purposes of determining whether a complaint should be filed or referred to the proper disciplining authority, or to prevent the disruption of the operations of his office.
SECTION 7. Powers and Functions of the Secretary. — The Secretary shall:
(1) Advise the President in issuing executive orders, regulations, proclamations and other issuances, the promulgation of which is expressly vested by law in the President relative to matters under the jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the Department pursuant to the approved programs of government;
(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient administration of the offices under the Secretary and for proper execution of the laws relative thereto. These issuances shall not prescribe penalties for their violation, except when expressly authorized by law;
(5) Exercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation;
(6) Appoint all officers and employees of the Department except those whose appointments are vested in the President or in some other appointing authority; Provided, However, that where the Department is regionalized on a department-wide basis, the Secretary shall appoint employees to positions in the second level in the regional offices as defined in this Code;
(7) Exercise jurisdiction over all bureaus, offices, agencies and corporations under the Department as are provided by law, and in accordance with the applicable relationships as specified in Chapters 7, 8, and 9 of this Book;
(8) Delegate authority to officers and employees under the Secretary's direction in accordance with this Code; and
(9) Perform such other functions as may be provided by law.[2]
Without more, this appears to be the extent of the disposition of the court a quo.[3] This qualification is also confirmed by the fact that the preliminary investigation is still nevertheless allowed to produce effect by the ponencia (i.e., referral of findings of the Department of Trade and Industry (DTI) Secretary to the OP or OMB for the conduct of proper proceedings), similar to the case of Baculi.
A more precise rule, to my mind, is that the disciplinary jurisdiction of the OP and the OMB over presidential appointees does not negate the power of a Secretary of a department to conduct a preliminary investigation short of taking disciplinary action (e.g., placing a presidential appointee under preventive suspension or filing a formal charge).
As applied to this case, the preliminary investigation conducted within the DTI was authorized by law but the proceedings subsequent to the Formal Charge not brought before the OP or OMB were susceptible to certiorari and were correctly nullified by the court a quo.
On the Secretary's limited disciplinary jurisdiction and the applicability of Sections 47 to 52 of the Administrative Code. |
Section 38(a) of Presidential Decree No. 807 and Sections 47 to 52 of Chapter 7, Subtitle A, Title I, Book V of the Administrative Code speak only of the procedures in administrative cases against non-presidential employees. Sections 47 and 51[4] relating to the disciplinary jurisdiction of Secretaries do not appear operational as regards presidential appointees. By its own rules as contained in the 2017 Revised Rules on Administrative Cases in the Civil Service (2017 RRACS),[5] the Civil Service Commission (CSC) recognizes that it does not have jurisdiction over presidential appointees. Section 9,[6] Rule 2 of the 2017 RRACS echoes the provisions of Section 47(2)[7] of the Administrative Code, also signaling inapplicability to presidential appointees.
In this regard, I believe that Sections 6 and 7(5), Chapter 2, Book IV of the Administrative Code are sufficient legal bases for the Secretary's exercise of the power to investigate and designate a committee or officer to conduct such investigation, without further reliance on the non-exclusive language of Section 47(2), Chapter 7, A, Subtitle A, Title I, Book V of the Administrative Code.
Insofar as presidential appointees coming under the direct disciplinary jurisdiction of the OP and OMB, the provisions of Sections 46 to 52 of the Administrative Code relating to the "disciplining authority" and "proper disciplining authority" must be read to pertain to the OP and OMB. Thus, for presidential appointees, the power to impose disciplinary penalties in Section 46,[8] resort to summary proceedings under Section 50,[9] and placing the employee under preventive suspension under Section 51[10] do not pertain to the Department Secretary, but to the OP and OMB.
While I agree that preventive suspension is not a penalty, the power to impose it must be interpreted to pertain to the OP or OMB as proper disciplining authority — as necessitated by consistency.
That said, there is nothing that prevents the Secretary from imposing preventive suspension, conducting the investigation subsequent to the institution of a formal complaint, and imposing disciplinary penalties with the express conformity of or prior approval from the OP. As between a unilateral exercise of full disciplinary jurisdiction over a presidential appointee that flies in the face of the President's direct disciplinary jurisdiction, obtaining the express conformity or prior approval of the OP prior to the taking of disciplinary action is not an unreasonable requirement for a Secretary who is an alter ego.
This limited disciplinary jurisdiction is the most reasonable interpretation that gives effect to the Secretary's power of supervision and control over his department while respecting the direct disciplinary jurisdiction of the President over his appointees. This is also consistent with Baculi.[11]
On the doctrine of qualified political agency.
Relatedly, while the doctrine of qualified political agency may justify a Secretary's exercise of disciplinary jurisdiction over a subordinate presidential appointee, this limited disciplinary jurisdiction must be short of taking disciplinary action (i.e., the imposition of penalties). To my mind, this limitation is justified by:
Effect of subsequent executive issuances.
The doctrine of qualified political agency must be consistent with the President deciding to directly investigate and take cognizance of complaints and administrative cases against presidential appointees. For suspected graft and corrupt practices as is involved in this case, the OP had issued Executive Orders (EO) creating the Presidential Anti-Graft Commission,[12] transferring its powers, duties and functions to Office of the Deputy Executive Secretary for Legal Affairs,[13] and under the current administration, the Presidential Anti-Corruption Commission[14] for that specific purpose.
Viewed in this light, the holding in Baculi followed by the court a quo has sound basis. Executive issuances and those of other national government agencies affirm the contemporaneous construction that the direct disciplinary jurisdiction over presidential appointees belongs to the OP and OMB. Hence, only the investigation can be done by the Secretary. The procedure envisioned in Sections 47 to 52 of Chapter 7, Subtitle A, Title I, Book V of the Administrative Code, subsequent to the filing of a Formal Charge is within the jurisdiction of the OP and OMB.
These issuances, issued under the ordinance power of the President relating to constitutional or statutory powers (i.e., the sharing of disciplinary jurisdiction with heads of offices)[15] may be read as a continuing decision of the President to directly take cognizance of complaints and cases against presidential appointees, limiting the applicability of qualified political agency with respect to the exercise of disciplinary jurisdiction over presidential appointees. In this class of cases, EOs, while not repealing laws, may validly modify them.
Hence, the general proposition that an EO cannot repeal a law does not hold true in this case.
Baculi v. Office of the President.
In Baculi, the doctrine of qualified political agency for purposes of imposing disciplinary penalties (i.e., dismissal) was accorded, not to the Department Secretary but to the Deputy Executive Secretary, thus:
And, secondly, it was of no moment to the validity and efficacy of the dismissal that only Acting Deputy Executive Secretary for Legal Affairs Gaite had signed and issued the order of dismissal. In so doing, Acting Deputy Executive Secretary Gaite neither exceeded his authority, nor usurped the power of the President. Although the powers and functions of the Chief Executive have been expressly reposed by the Constitution in one person, the President of the Philippines, it would be unnatural to expect the President to personally exercise and discharge all such powers and functions. Somehow, the exercise and discharge of most of these powers and functions have been delegated to others, particularly to the members of the Cabinet, conformably to the doctrine of qualified political agency. Accordingly, we have expressly recognized the extensive range of authority vested in the Executive Secretary or the Deputy Executive Secretary as an official who ordinarily acts for and in behalf of the President. As such, the decisions or orders emanating from the Office of the Executive Secretary are attributable to the Executive Secretary even if they have been signed only by any of the Deputy Executive Secretaries.[16]Need for a workable rule.
For the same reason above, the alter ego or qualified political agency doctrine must defer to the final action of the President with respect to disciplinary action (i.e., imposition of penalties). It may indeed lead to unnecessary embarrassment to the Executive Department if the President is constrained to reinstate a presidential appointee removed or suspended by the Secretary in his capacity as alter ego in the face of the executive issuances already signaling the President's decision to directly exercise disciplinary jurisdiction over these persons he personally appointed. It is much more workable for the limited disciplinary jurisdiction to be recognized as in Baculi and for the Secretary to recommend and leave the taking of disciplinary action to the President as the appointing power.
On mootness and referral of findings to the OP.
The decision holds that the petition is not mooted by the expiration of respondent Enriquez's term upon the appointment of another person to his position. I recognize the merit of SAJ Perlas-Bernabe's position that the Formal Charge filed by the investigating committee signifies the institution of the complaint conformably with Baculi, and that cessation from office "is not a way out to evade administrative liability when facing administrative sanction. [It] does not preclude the finding of any administrative liability to which he or she shall still be answerable."[17]
While I agree that the issues raised in this case remain justiciable despite respondent Enriquez's separation, my position is that for presidential appointees, administrative jurisdiction may only be had by the timely filing of a Formal Charge before the OP or the OMB during the incumbency of the said appointee. This is not inconsistent with the jurisprudence[18] dealing with either dismissed or resigned officials. The Formal Charge herein was not brought to the OP or OMB during the respondent's tenure; hence, no complaint was timely instituted before the proper disciplining authority. There is no valid pending or subsisting administrative complaint that could be the avenue to find administrative liability at this stage. This is in stark contrast with the fact pattern in Baculi: the Department of Agrarian Reform Secretary forwarded his findings and recommendations to the OP while the petitioner was still in office; the OP, in turn, dismissed the petitioner therein from the service.
Hence, I do not believe that there is basis to refer the SIC's findings to the OP for imposition of administrative penalties, if any.
Conclusion
In fine, I maintain that the extent of disciplinary jurisdiction of a Department Secretary over a subordinate-presidential appointee includes the power to investigate, and designate a committee or officer to conduct such investigation, BUT does not include the power to unilaterally place the presidential appointee under preventive suspension and to unilaterally impose disciplinary penalties. Given the state of the law and executive issuances on the matter, there is no pressing need to deviate from or abandon Baculi.
Moreover, separate from the issue of whether the DTI Secretary has disciplinary jurisdiction over a subordinate presidential appointee, I believe that DTI's failure to bring the Formal Charge before the proper disciplining authority (i.e., OP or OMB) prior to the respondent's separation from office means no disciplinary jurisdiction can be had over him at this stage. It also forecloses the continuation of proceedings with a view of finding administrative liability on the part of respondent Enriquez.
On the basis of the foregoing, I vote to dismiss the petition.
[1] 807 Phil. 52 (2017).
[2] Approved on July 25, 1987; emphasis and underscoring supplied.
[3] The dispositive portion of the Regional Trial Court Decision reads:
WHEREFORE:
1. The instant petition is granted in part.
2. The Formal Charge with Preventive Suspension dated May 19, 2016 is nullified and set aside.
3. The Special Investigation Committee is prohibited from hearing and adjudicating the Formal Charge with Preventive Suspension dated May 19, 2016.
4. The [petitioners] are commanded to restore [respondent Danilo V. Enriquez (respondent Enriquez)] to his post as Director of the Fair Trade Enforcement Bureau of the Department of Trade and Industry, unless his term of office has already expired and he can no longer resume such post under the present Administration, rollo, p. 38.
[4]
TITLE I
Constitutional Commissions
SUBTITLE A
Civil Service Commission
Chapter 7
Discipline
SECTION 47. Disciplinary Jurisdiction. — (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or line in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken.
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.
(3) An investigation may be entrusted to regional director or similar officials who shall make the necessary report and recommendation to the chief of bureau or office or department within the period specified in Paragraph (4) of the following Section.
(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.
SECTION 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.
[5]
JURISDICTION AND VENUE OF ACTIONS
Section 7. Cases Cognizable by the Commission. The Civil Service Commission shall take cognizance of the following cases:
A. | Disciplinary | |
xxxx | ||
3. | Complaints against officials who are not presidential appointees or elective officials; | |
[6] Section 9. Jurisdiction of Disciplining Authorities. The disciplining authorities of agencies and local government units shall have original concurrent jurisdiction with the Commission over their respective officials and employees. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days salary subject to Section 7(A)(5) of these Rules. In case the decision rendered by a bureau or office is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is dismissal from the service, in which case the same shall be executory only after confirmation by the Secretary concerned.
[7] See supra note 4.
[8] SECTION 46. Discipline: General Provisions. — x x x
x x x x
(d) In meting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be imposed in each case. The disciplining authority may impose the penalty of removal from the service, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months' salary, or reprimand.
[9] SECTION 50. Summary Proceedings. — No formal investigation is necessary and the respondent may be immediately removed or dismissed if any of the following circumstances is present:
(1) When the charge is serious and the evidence of guilt is strong;
(2) When the respondent is a recidivist or has been repeatedly charged and there is reasonable ground to believe that he is guilty of the present charge; and
(3) When the respondent is notoriously undesirable.
Resort to summary proceedings by the disciplining authority shall be done with utmost objectivity and impartiality to the end that no injustice is committed: Provided, That: removal or dismissal except those by the President, himself or upon his order, may be appealed to the Commission.
[10] SECTION 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.
[11] Note that in Baculi, the petitioner did not question the Department of Agrarian Reform Secretary's act of placing him under preventive suspension; hence, no ruling was made relative thereto.
[12] EO No. 12 (2001), entitled CREATING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES AND FUNCTIONS, AND FOR OTHER PURPOSES.
[13] EO No. 13 (2010), entitled ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORS AND RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE PRESIDENT.
[14] EO No. 43 (2017), entitled CREATING THE PRESIDENTIAL ANTI-CORRUPTION COMMISSION AND PROVIDING FOR ITS POWERS, DUTIES AND FUNCTIONS, AND FOR OTHER PURPOSES, as amended by EO No. 73 (2018). One of the amendments introduced by EO No. 73 reads:
SECTION 1. x x x
"Section 5. Jurisdiction, Powers and Functions. —
x x x x
(f) x x x
x x x x
The preceding paragraphs notwithstanding, nothing shall prevent the President, in the interest of the service, from directly investigating and/or hearing an administrative case against any presidential appointee or authorizing other offices under the Office of the President to do the same, as well as from assuming jurisdiction at any stage of the proceedings over cases being investigated by the Commission."
[15]
Office of the President
TITLE I
Powers of the President
CHAPTER 2
Ordinance Power
SECTION 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be, promulgated in executive orders.
[16] Supra note 1, at 66-68.
[17] Separate Concurring Opinion of SAJ Perlas-Bernabe, p. 3.
[18] Office of the Court Administrator v. Judge Hamoy, 489 Phil. 296, 301 (2005), deals with a judge who "was dismissed from service with forfeiture of retirement benefits except accrued leave credits after he was found guilty of gross inefficiency, dereliction of duty and violation of the Code of Judicial Conduct." The Court held that his dismissal did not preclude the imposition of fine charged against his accrued leave benefits.
On the other hand, in Office of the Ombudsman v. Andutan, Jr., 670 Phil. 169 (2011), deals with "Andutan [who] was forced to resign more than a year before the Ombudsman filed the administrative case against him," id. at 185. The CA annulled and set aside the OMB decision, because, among other reasons, "the administrative case was filed after Andutan's forced resignation," id. at 175. On certiorari, the Court agreed with the CA, holding that "Andutan is no longer the proper subject of an administrative complaint," id. at 189.
CONCURRING AND DISSENTING OPINION
LAZARO-JAVIER, J.
I concur with the highly esteemed Ponente insofar as he upholds the power of Department Secretaries to investigate their subordinates for administrative offenses, but dissent insofar as he limits this power to preclude Department Secretaries from imposing penalties against presidential appointees.
True, the ponencia and the challenged rulings are consistent with precedents, one of which as cited is Baculi v. Office of the President,[1] but perhaps it is high time that the basis for their common holding be revisited.
If I may digress a bit, a bright light from the procedural history of the instant case is the trial court judge's adherence to the rule of precedent which is one of the cornerstones of the rule of law. Precedent is a doctrine that brings stability to the state of our law. But it is also the Court's function not only to ensure adherence to precedents, as the trial court judge has done, but to re-examine the continued validity and doctrinal value of precedents in the light of present day circumstances including the prevailing legal philosophies of the Court's current roster.
The bases for this opinion is twofold: (i) statutory provisions, and (ii) the doctrine of qualified political agency.
The Administrative Code vests Department Secretaries with Disciplinary Jurisdiction over their Subordinates
I do not see any reason why we should continue to exclude the exercise of disciplinary jurisdiction over presidential appointees who are subordinates of the President's alter egos from the statutory grant of disciplinary jurisdiction to the President's alter egos over their subordinates.
The ponencia refers us to Section 38 of PD 807[2] and Section 47 of EO 292[3] to prove that heads of the Executive Departments have no disciplinary jurisdiction over presidential appointees even if the latter are the department heads' respective subordinates. The reference to these statutory provisions to support the ponencia's proposition, with due respect, may not be accurate.
For these statutory provisions deal ONLY with the procedure to be adopted with respect to the administrative cases against non-presidential appointees. These statutory provisions do not define, by any stretch of interpretation, the disciplinary jurisdiction of the heads of the Executive Departments over their subordinates who are presidential appointees.
It is quite a leap to conclude that just because Section 38 of PD 807 and Section 47 of EO 292 provide the procedure that a Secretary may take and follow in an administrative case against a non-presidential appointee, the provisions already limit the Secretary's disciplinary jurisdiction to subordinates who are not presidential appointees. The language of the statutory provisions simply does not support this claim of the precedents relied upon by the ponencia and the trial judge. Besides the fact that Section 38 of PD 807 and Section 47 of EO 292 are couched in the permissive sense, as shown by the use of the word "may," these provisions only talk about the procedure that may be followed in an administrative case against a non-presidential appointee.
Indeed, the appropriate statutory provisions which define the disciplinary jurisdiction of heads of the Executive Departments over their subordinates who are presidential appointees are Sections 6 and 7(5),[4] Chapter 2, Title III, Book IV; Section 47(2),[5] Chapter 7, Title I, Book V; and, Section 51,[6] Chapter 4, Book V, all of EO 292. The headings or head notes or epigraphs of these statutory provisions are themselves convenient indexes to their contents — "Authority," "Responsibility," "Powers," "Functions" and "Disciplinary Jurisdiction."
More important, the language and wordings of the foregoing statutory provisions clearly indicate who are subject to the Secretary's disciplinary jurisdiction — the Secretary's subordinates WITHOUT DISTINCTION as to whether the public officer is a presidential appointee or a non-presidential appointee. The procedure involved in the administrative case may be different from one to the other, but the disciplinary jurisdiction of the Secretary over both of them is very clear from the aforementioned provisions. Sections 6 and 7(5) of Book IV, Section 47(2) of Book V, and Section 51 of Book V, all of EO 292, could not have been made any clearer as to their meaning.
It bears emphasis that the disciplinary jurisdiction of the Secretary over both presidential and non-presidential appointees is not exclusive of the disciplinary jurisdiction that the President may choose at any time to assume and exercise over both types of appointees. Hence, at any time, the President may assume and exercise disciplinary jurisdiction over an administrative case involving either a presidential appointee or a non-presidential appointee at any stage of the administrative proceedings before the heads of the Executive Departments.
The reason for this reserved authority and power of the President as Chief Executive lies in the nature of our constitutional presidential system whereby all executive and administrative organizations are adjuncts of the Executive Department, and the heads of the various executive departments are mere assistants and agents of the President as Chief Executive. Except in cases where the Chief Executive is required by the Constitution or the law to act in person, or the exigencies of the situation demand that he or she act personally, the nature of the presidential bureaucracy involves the multifarious executive and administrative functions of the President as Chief Executive being performed by and through the executive departments, as his or her mere assistants and agents.
The Doctrine of Qualified Political Agency
Assuming that Sections 6 and 7(5) of Book IV, Section 47(2) of Book V, and Section 51 of Book V, all of EO 292, are equivocal as to their meaning (an assumption that I cannot accept given the clarity of these provisions), the disciplinary jurisdiction of an executive department head over presidential appointees can be implied necessarily from the doctrine of qualified political agency.
Under this doctrine, department secretaries are alter egos or assistants of the President and their acts are presumed to be those of the latter unless disapproved or reprobated by him. According to former Chief Justice Lucas Bersamin in Manalang-Demegillo v. Trade and Investment Development Corporation of the Philippines,[7] this doctrine of qualified political agency:
... also known as the alter ego doctrine, was introduced in the landmark case of Villena v. The Secretary of Interior. In said case, the Department of Justice, upon the request of the Secretary of Interior, investigated Makati Mayor Jose D. Villena and found him guilty of bribery, extortion, and abuse of authority. The Secretary of Interior then recommended to the President the suspension from office of Mayor Villena. Upon approval by the President of the recommendation, the Secretary of Interior suspended Mayor Villena. Unyielding, Mayor Villena challenged his suspension, asserting that the Secretary of Interior had no authority to suspend him from office because there was no specific law granting such power to the Secretary of Interior; and that it was the President alone who was empowered to suspend local government officials. The Court disagreed with Mayor Villena and upheld his suspension, holding that the doctrine of qualified political agency warranted the suspension by the Secretary of Interior. Justice Laurel, writing for the Court, opined:Manalang-Demegillo identifies two instances where the doctrine does not apply: (i) where the public officer is not a presidential appointee; and (ii) where the action taken by the public officer is pursuant to a specific statutory mandate. Hence, assuming that there is no statute that grants disciplinary jurisdiction to a head of an executive department over presidential appointees (an assumption that I strongly dispute because of the clear provisions of Sections 6 and 7(5) of Book IV, Section 47(2) of Book V, and Section 51 of Book V, all of EO 292), then the doctrine of qualified political agency fills in that perceived void. The doctrine is not ousted by Section 38 of PD 807 and Section 47 of EO 292 because these statutory provisions relate only to the procedure involved in an administrative case against non-presidential appointees by a head of an executive department, but not the scope of public officers covered by the disciplinary jurisdiction of a head of an executive department.
After serious reflection, we have decided to sustain the contention of the government in this case on the broad proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. (Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep, 80; Wolsey vs. Chapman [1880], 101 U. S, 755; 25 Law. ed., 915; Wilcox vs. Jackson [1836], 13 Pet, 498; 10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the principle of qualified political agency in this and similar cases would result in the assumption of responsibility by the President of the Philippines for acts of any member of his cabinet, however illegal, irregular or improper may be these acts. The implications, it is said, are serious. Fear, however, is no valid argument against the system once adopted, established and operated. Familiarity with the essential background of the type of Government established under our Constitution, in the light of certain well-known principles and practices that go with the system, should offer the necessary explanation. With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford ed., 498), and in the language of Attorney-General dishing (7 Op., Attorney-General, 453), "are subject to the direction of the President." Without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United States, "each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority." (Myers vs. United States, 47 Sup. Ct. Rep., 21 at 30; 272 U.S. 52 at 133; 71 Law. Ed., 160). x x x.
The doctrine of qualified political agency essentially postulates that the heads of the various executive departments are the alter egos of the President, and, thus, the actions taken by such heads in the performance of their official duties are deemed the acts of the President unless the President himself should disapprove such acts. This doctrine is in recognition of the fact that in our presidential form of government, all executive organizations are adjuncts of a single Chief Executive; that the heads of the Executive Departments are assistants and agents of the Chief Executive; and that the multiple executive functions of the President as the Chief Executive are performed through the Executive Departments. The doctrine has been adopted here out of practical necessity, considering that the President cannot be expected to personally perform the multifarious functions of the executive office. (emphasis added)
Thus, applying the doctrine of qualified political agency, when a Secretary, such as the Secretary of the Department of Trade and Industry in the case at bar, exercises disciplinary jurisdiction over a subordinate presidential appointee, the Secretary is doing so as the President's alter ego. In resorting to the doctrine, assuming there is no statutory authority granting the Secretary such power, which I strongly dispute, the Secretary does not need an express and categorical mandate from the President to exercise disciplinary jurisdiction over the Secretary's subordinate presidential appointees, because impliedly, the Secretary already has such mandate as the President's alter ego. The Secretary's action vis-a-vis the subordinate presidential appointee is deemed to be the President's action — this deeming rule is the substance of the doctrine of qualified political agency — unless reprobated by the President himself.
It goes without saying that the doctrine of qualified political agency if resorted to by a head of an executive department does not vest exclusive disciplinary jurisdiction upon the latter to the exclusion of the President as Chief Executive. This is because, consistent with the nature of a presidential system as stated above, and also with the nature of an agency relationship, the department heads are the President's mere factotums whom the President as Chief Executive can at any time hire, fire, replace, or take over from at any stage of the department heads' execution of their functions.
As a statement of our country's rule of law, the doctrine of qualified political agency is well entrenched. In practical terms, the doctrine is responsive to the multifarious concerns that the President has to attend to and the fact that there are just so many presidential appointees out there. At the first instance, it is best to leave the disciplining to the President's alter ego as he or she knows better how the presidential appointee has been performing or conducting himself or herself in the public service.
I do recognize that the doctrine of qualified political agency does not apply "in cases where the Chief Executive is required by Constitution or law to act in person or the exigencies of the situation demand that he act personally." But we have to ask ourselves, to what particular acts do we apply the exception?
Villena v. Secretary of Interior[8] has already intimated that not every power vested in the President falls within the exception. Thus:
In the deliberation of this case it has also been suggested that, admitting that the President of the Philippines is invested with the authority to suspend the petitioner, and it appearing that he had verbally approved or at least acquiesced in the action taken by the Secretary of the Interior, the suspension of the petitioner should be sustained on the principle of approval or ratification of the act of the Secretary of the Interior by the President of the Philippines. There is, to be sure, more weight in this argument than in the suggested generalization of section 37 of Act No. 4007. Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it should be observed that there are certain prerogative acts which, by their very nature, cannot be validated by subsequent approval or ratification by the President. There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law (par. 3, sec. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec. 11, idem). Upon the other hand, doubt is entertained by some members of the court whether the statement made by the Secretary to the President in the latter's behalf and by his authority that the President had no objection to the suspension of the petitioner could be accepted as an affirmative exercise of the power of suspension in this case, or that the verbal approval by the President of the suspension alleged in a pleading presented in this case by the Solicitor-General could be considered as a sufficient ratification in law.We have thus long recognized that the President has powers that may or may not be delegated. This precept presupposes that the President possesses those powers as vested in him or her by the Constitution or by statute but may be exercised by his or her Cabinet members. Hence, it cannot be proposed that simply because the President has been vested a power means that this power can no longer be exercised by his or her alter egos under the doctrine of qualified political agency. Otherwise, the doctrine would become a useless rule since the President is the single Chief Executive upon whom the faithful execution of the laws has been explicitly vested by the Constitution. As to which power falls within the exception really depends not on the fact that the power has been given to the President, but on the nature of the power thus accorded to the President and the gravity of the consequences of the use of such power.
After serious reflection, we have decided to sustain the contention of the government in this case on the broad proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, arc, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. (Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915; Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.)
Spouses Constantino v. Cuisia,[9] discussed the type of presidential powers that may be delegated — (i) those that may be considered to be within the expertise of the Cabinet member concerned, (ii) those that require focus on a welter of time-consuming detailed activities, which would unduly hamper the President's effectivity in running the government, those involving the formulation and execution of schemes pursuant to the policy publicly expressed by the President himself or herself, or (iii) though of vital public interest, those only akin to any contractual obligation undertaken by the sovereign arising not from any extraordinary incident but from the established functions of governance.
On the other hand, the exception includes "certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import." Thus:
Second Issue: Delegation of PowerAn example of a presidential power that falls outside the ambit of the doctrine of qualified political agency is found in Resident Marine Mammals of the Protected Seascape of Tañon Strait v. Reyes,[10] — the execution of a service contract for the exploration of petroleum under paragraph 4, Section 2, Article XII of the Constitution, which requires that the President himself or herself to enter into such contract.
Petitioners stress that unlike other powers which may be validly delegated by the President, the power to incur foreign debts is expressly reserved by the Constitution in the person of the President. They argue that the gravity by which the exercise of the power will affect the Filipino nation requires that the President alone must exercise this power. They submit that the requirement of prior concurrence of an entity specifically named by the Constitution — the Monetary Board — reinforces the submission that not respondents but the President "alone and personally" can validly bind the country.
Petitioners' position is negated both by explicit constitutional and legal imprimaturs, as well as the doctrine of qualified political agency.
The evident exigency of having the Secretary of Finance implement the decision of the President to execute the debt-relief contracts is made manifest by the fact that the process of establishing and executing a strategy for managing the government's debt is deep within the realm of the expertise of the Department of Finance, primed as it is to raise the required amount of funding, achieve its risk and cost objectives, and meet any other sovereign debt management goals.
If, as petitioners would have it, the President were to personally exercise every aspect of the foreign borrowing power, he/she would have to pause from running the country long enough to focus on a welter of time-consuming detailed activities — the propriety of incurring/guaranteeing Joans, studying and choosing among the many methods that may be taken toward this end, meeting countless times with creditor representatives to negotiate, obtaining the concurrence of the Monetary Board, explaining and defending the negotiated deal to the public, and more often than not, flying to the agreed place of execution to sign the documents. This sort of constitutional interpretation would negate the very existence of cabinet positions and the respective expertise which the holders thereof are accorded and would unduly hamper the President's effectivity in running the government.
Necessity thus gave birth to the doctrine of qualified political agency, later adopted in Villena v. Secretary of the Interior from American jurisprudence, viz:With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford eel., 498), and, in the language of Attorney-General dishing (7 Op., Attorney-General, 453), "are subject to the direction of the President." Without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Tail of the Supreme Court of the United States, "each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority" (Myers vs. United States, 47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160).As it was, the backdrop consisted of a major policy determination made by then President Aquino that sovereign debts have to be respected and the concomitant reality that the Philippines did not have enough funds to pay the debts. Inevitably, it fell upon the Secretary of Finance, as the alter ego of the President regarding "the sound and efficient management of the financial resources of the Government," to formulate a scheme for the implementation of the policy publicly expressed by the President herself.
Nevertheless, there are powers vested in the President by the Constitution which may not be delegated to or exercised by an agent or alter ego of the President. Justice Laurel, in his ponencia in Villena, makes this clear:Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it should be observed that there are certain acts which, by their very nature, cannot be validated by subsequent approval or ratification by the President. There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, in his power to suspend the writ of habeas corpus and proclaim martial law (PAR. 3, SEC. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec. 11, idem).These distinctions hold true to this day. There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import.
We cannot conclude that the power of the President to contract or guarantee foreign debts falls within the same exceptional class. Indubitably, the decision to contract or guarantee foreign debts is of vital public interest, but only akin to any contractual obligation undertaken by the sovereign, which arises not from any extraordinary incident, but from the established functions of governance.
Another important qualification must be made. The Secretary of Finance or any designated alter ego of the President is bound to secure the latter's prior consent to or subsequent ratification of his acts. In the matter of contracting or guaranteeing foreign loans, the repudiation by the President of the very acts performed in this regard by the alter ego will definitely have binding effect. Had petitioners herein succeeded in demonstrating that the President actually withheld approval and/or repudiated the Financing Program, there could be a cause of action to nullify the acts of respondents. Notably though, petitioners do not assert that respondents pursued the Program without prior authorization of the President or that the terms of the contract were agreed upon without the President's authorization. Congruent with the avowed preference of then President Aquino to honor and restructure existing foreign debts, the lack of showing that she countermanded the acts of respondents leads us to conclude that said acts carried presidential approval. (my emphasis)
Here, the power to remove a presidential appointee of respondent's rank and responsibilities is not of the type that engages the exception to the doctrine. It is not one that the Court has previously declared must be exercised personally by the President. It is not one that arises out of exceptional circumstances, or if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government.
On the contrary, it is one of those falling within any of the enumerated exceptions to the exception. The removal of a presidential appointee of the rank and responsibilities of respondent is within the expertise of the Cabinet member concerned; it requires focus on a welter of time-consuming detailed activities, which would unduly hamper the President's effectivity in running the government; it involves the execution of the President's publicly stated policy against misfits in government; and, it is an ordinary incident that is part and parcel of the established functions of governance. As a result, it cannot be seriously argued that the power involved falls within the exception to the application of the doctrine of qualified political agency.
I also have to caution that just because the removal is decided and implemented by the Cabinet member in the ordinary course of law does not mean that the President is by-passed and his or her power to discipline his or her appointees is diluted. This is far from it.
As mentioned, the designated alter ego of the President is bound to secure the latter's prior consent to or subsequent ratification of his or her acts. For the President's repudiation of the very acts performed by the alter ego in this regard will definitely have a binding effect. If it is demonstrated that the President actually withheld approval or repudiated the alter ego's action, which in this day and age is easy to accomplish, there could be a cause of action to nullify the latter's acts. It is only when there is tatter lack of showing that the President countermanded the acts of his or her Cabinet member can we conclude that these acts carried presidential approval.
Recognizing the application of the doctrine of qualified political agency in the instant case is especially convincing during emergency times. It gives department secretaries the latitude in helping the President in his tasks without unnecessarily burdening him. This is because the department secretaries know the capacities and actual performance of their subordinates, be they presidential or non-presidential appointees, as it is often the case that these subordinates, even those appointed by the President, are so appointed only upon the respective recommendations of the department secretaries. More, these Presidential appointees are mostly career people who are recommended and appointed on the basis of fitness and merit: not because they enjoy the trust and confidence of the President. They enjoy security of tenure and may be removed only upon valid or just cause. They do not serve at the pleasure of the President. Hence, unless disapproved by the President, it behooves us in the Court to recognize the dynamics within each department which the secretary concerned has foremost knowledge of. In any event, these presidential appointees are not removed whimsically and immediately but must be based on cause as they were appointed on the basis of merit and fitness. This is the necessary check that what the department secretaries are doing as personnel movements within their respective turfs are easily monitored and principled.
ACCORDINGLY, I vote to grant the petition and to reverse the assailed Order dated June 27, 2016 of the learned trial judge. I vote to declare as VALID the entire administrative proceedings conducted by the Department of Trade and Industry against Respondent Danilo B. Enriquez pursuant to Department Order No. 16-34 dated April 22, 2016.
[1] G.R. No. 188681, March 8, 2017.
[2] Section 38. Procedure in Administrative Cases Against Non-Presidential Appointees, (a) Administrative proceedings may be commenced against a subordinate officer or employee by the head of department or office of equivalent rank, or head of local government, or chiefs or agencies, regional directors, or upon sworn, written complaint of any other persons.
[3] Section 48. Procedure in Administrative Cases Against Non-Presidential Appointees. — (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person.
[4] Section 6. Authority and Responsibility of the Secretary. — The authority and responsibility for the exercise of the mandate of the Department and for the discharge of its powers and functions shall be vested in the Secretary, who shall have supervision and control of the Department.
Section 7. Powers and Functions of the Secretary. — The Secretary shall.... (5) Exercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation....
[5] SECTION 47. Disciplinary Jurisdiction. — .... (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.
[6] SECTION 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.
[7] 705 Phil. 331 (2013).
[8] 67 Phil. 451 (1939).
[9] 509 Phil. 486 (2005).
[10] 758 Phil. 724 (2015).
SEPARATE CONCURRING OPINION
ZALAMEDA, J.:
Director Danilo B. Enriquez (Dir. Enriquez), a director of a line bureau and a presidential appointee, claims immunity from administrative disciplinary proceedings instituted against him by the Secretary of the Department of Trade and Industry (DTI Secretary), particularly the creation of a Special Investigation Committee (SIC) and the imposition of preventive suspension. Dir. Enriquez insists that the authority Lo institute disciplinary proceedings over presidential appointees is limited to: (1) the Office of the President through (a) the Office of the Deputy Executive Secretary of Legal Affairs (ODESLA)[1] or (b) the Presidential Anti-Corruption Commission (PACC)[2]; and (2) the Office of the Ombudsman, based on the Constitution[3] and on Republic Act No. 6770 (RA 6770).
The arguments raised by Dir. Enriquez are misplaced. The ponencia correctly ruled that the DTI Secretary validly exercised disciplinary powers over Dir. Enriquez, albeit for different reasons, as herein discussed.
The disciplining authority of a Department Secretary does not emanate from the President's power of control |
Contrary to the reasons put forward in the ponencia, a department secretary's disciplining authority over a subordinate who is a presidential appointee finds its basis in law and is tempered by the limits set by the President's power to appoint. It is not borne out of the President's power of control.
Authority to discipline is an agglomeration of powers which includes the power to remove from office, the power to impose additional penalties, the power to impose penalties short of removal, the power to impose preventive suspension, and the power to conduct an investigation. While the President exercises the full extent of this authority, a department secretary's authority to discipline excludes the power to remove from office a subordinate who is a presidential appointee. The power to remove can only be exercised by the person with the power to appoint. The President has the power to appoint and may, consequently, remove his appointee. The department secretary has no such power to appoint and may thus only recommend to the President the removal of a subordinate who is a presidential appointee.
On the other hand, the President exercises the power of control expressed through the acceptance or rejection of the department secretary's recommendation to remove a subordinate who is a presidential appointee. The power of control refers to "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter."[4] Under this definition, the President's power of control does not extend to the authority to discipline, the latter having been derived from the President's constitutional power to appoint. And the 1987 Constitution supports this conclusion, separately articulating the President's power of control and power to appoint.
Section 17 of Article VII of the 1987 Constitution provides that "[t]he President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." The first sentence refers to the President's power of control, while the second sentence refers to the President's power of supervision.
During the deliberations of the 1986 Constitutional Commission on the proposed text brought about by the departure from the parliamentary form of government in the 1973 Constitution, it was suggested that the word "control" be replaced with the words "administer" or supervise" in the provision on the President's powers of control and of supervision. This suggestion was rejected in light of the definitive usage of the word "control" in jurisprudence. A distinction was also made between the power of control and the power of general supervision, underscoring that the President's power of control refers to the exercise of discretion, and not of discipline.
FR. BERNAS. Madam President, this [word "control"] is based on the principle that under a presidential form of government, there is only one executive and it is the President. And the power of control in jurisprudence is acquired very definitely. It means the authority of a superior to substitute his judgment for the judgment of an inferior. It has reference only to the exercise of judgment. It has nothing to do with discipline but just the exercise of discretion. The discretion of the superior who has the power of control can always be substituted for that exercise of jurisdiction of the inferior. This is to be distinguished from the power of general supervision which is nothing more than the power to see to it that the inferior follows the law. The power of general supervision does not allow the superior to substitute his judgment. x x x[5] (Emphasis supplied.)The power to appoint, on the other hand, is articulated in Section 16, Article VII of the 1987 Constitution, which reads:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.The cases of Ang-Angco v. Castillo[6] (Ang-Angco) and Villaluz v. Zaldivar[7] (Villaluz) distinguished the President's power of control from the President's power to appoint. First, the President's power of control does not include the power to remove. Second, the President's power to remove is inherent in the power to appoint. Both Ang-Angco and Villaluz state that the removal of an inferior officer cannot be construed to come within the meaning of control over a specific policy of government. After all, the government is in the business of governing a country, and not the removal of its civil servants.
The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.
In the 1963 case of Ang-Angco, We declared that the power of control of the President applies to the acts, and not the person, of his subordinate. This empowers the President to set aside the judgment or action taken by a subordinate in the performance of his duties. Subsequently, the 1965 case of Villaluz adopted Our ruling in Ang-Angco in declaring that the President has the disciplining authority over presidential appointees in the civil service. Presidential appointees in the executive department are also referred to as civil service employees in the non-competitive or unclassified service of the government.
The disciplinary authority of a Department Secretary over presidential appointees is based in law |
Given the principle in Ang-Angco and Villaluz that "the power to remove is inherent in the power to appoint," what then is the basis for the department secretary's disciplinary authority, or the authority to conduct an investigation and impose preventive suspension on a subordinate who is a presidential appointee?
The Administrative Code of 1987 enumerates the officials who are presidential appointees, which includes Directors and Assistant Directors of Bureaus, Regional and Assistant Regional Directors, Department Service Chiefs, and their Equivalents.[8] It also vests upon the President the power to appoint the head of a bureau, such as Dir. Enriquez, as in this case.
Under the same Code, a department secretary is given disciplinary powers over officers and employees in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation.[9] Section 7(5) includes the power to investigate, and the power to designate a committee or officer to investigate, in the disciplining powers of a department secretary. Meanwhile, Section 7(7) explicitly states that the department secretary has the power to "[e]xercise jurisdiction over all bureaus, offices, agencies and corporations under the Department x x x."
Neither Section 7(5), which refers to disciplining powers, nor Section 7(7), which refers to the power of control, mentions or distinguishes between presidential appointees and non-presidential appointees. This means that a department secretary need not distinguish between presidential and non-presidential appointees in the exercise of disciplining powers, as well as the power of control. It is only in Section 7(6) of the Administrative Code of 1987, which pertains to the power to appoint, where a distinction between presidential appointees and non-presidential appointees finds support.
The scope of the disciplining authority of a department secretary should also be examined along with the disciplining authority of the Civil Service Commission (CSC). Sections 47, 48, and 51[10] of the Administrative Code of 1987 provide for the disciplining powers of a department secretary if the case falls under the disciplining jurisdiction of the CSC. Specifically, these provisions lay down a department secretary's powers to: investigate (Sec. 47); decide matters involving disciplinary action against officers and employees (Sec. 47); delegate the power to investigate to subordinates (Sec. 47); initiate administrative proceedings against subordinates through a sworn written complaint (Sec. 48); and to issue preventive suspension pending an investigation of a subordinate if the charges against the subordinate involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service (Sec. 51).
Concededly, the Revised Rules on Administrative Cases in the Civil Service (RRACCS),[11] which were applicable during Dir. Enriquez's tenure, specifically enumerated the cases under the jurisdiction of the CSC. The RRACCS limited the CSC's jurisdiction to those specifically enumerated in the Rules[12] and made a distinction between presidential and non-presidential appointees, whereas the Administrative Code of 1987 made no such distinction when it outlined a department secretary's authority to discipline. Thus, the RRACCS should be harmonized and read in conjunction with the said Code.
A Department Secretary's authority to discipline necessarily includes the power to investigate and to create an investigating committee, and the power to preventively suspend |
Jurisprudence asserts that the disciplining authority of a department secretary includes the investigation of subordinates who are presidential appointees and the creation of a committee to undertake the same.
In Department of Health v. Camposano, et al.[13] (Camposano), the Court explicitly recognized that the Administrative Code vested department secretaries with the power to investigate matters involving disciplinary actions involving officers, including presidential appointees.
Meanwhile, in Office of the President v. Cataquiz[14] (Cataquiz), the Secretary of the Department of Environment and Natural Resources formed an investigating team to conduct an inquiry into the allegations against the general manager of the Laguna Lake Development Authority, who is a presidential appointee. The validity of the institution of the investigating team by the department secretary was not even raised as an issue in Cataquiz. Similarly, in Dr. Melendres v. Presidential Anti-Graft Commission, et al.[15] (Melendres), the Secretary of the Department of Health ordered the creation of a fact-finding committee to look into the charges against the Executive Director of the Lung Center of the Philippines, who was a presidential appointee. The validity of the creation of the fact-finding committee by the department secretary was not also raised as an issue.
On the other hand, a demarcation must be made between the power to impose penalties and the power to impose preventive suspension. A department secretary can only recommend the imposition of penalties against presidential appointees to either the Office of the President[16] or the Office of the Ombudsman.[17] This, does not mean, however, that a department secretary is precluded from imposing preventive suspension against a presidential appointee under investigation. To emphasize, preventive suspension is not a penalty but a measure intended to enable the investigating authority to investigate the charges against the subordinate and to prevent the latter from intimidating, or in any way influencing, the witnesses.[18]
From all the foregoing, it is undeniable that the exercise by the DTI Secretary of his disciplining authority over his subordinate, Dir. Enriquez, a presidential appointee, is well-founded in both law and jurisprudence. Thus, I vote to grant the Petition. Nonetheless, I stand resolute that the DTI Secretary's authority to discipline, contrary to the reasons put forward in the ponencia, is not derived from the President's power of control. Rather, such authority springs from the law, the exercise thereof is limited and tempered by the President's power to appoint.
[1] The bases for Dir. Enriquez's assertion are provided by: Executive Order No. 12 (EO 12) dated 16 April 2001; Executive Order No. 531 (EO 531) dated 31 May 2006; Executive Order No. 531-A (EO 531-A) dated 03 August 2006; Executive Order No. 531-B (EO 531-B) dated 13 December 2006; and Executive Order No. 13 (EO 13) dated 15 November 2010.
[2] Executive Order No. 43 (2017).
[3] CONSTITUTION, Art. XI, Sec. 12 and 13.
[4] Mondano v. Silvosa, G.R. No. L-7708, 30 May 1955; 97 Phil. 143, 150 (1955).
[5] II Record, CONSTITUTIONAL COMMISSION 408 (29 July 1986).
[6] G.R. No. L-17169, 30 November 30, 1963; 118 Phil. 1468, 1481 (1963).
[7] G.R. No. L-22754, 31 December 1965; 112 Phil. 1091, 1097 (1965).
[8] Executive Order No. 292 (1987), Book IV, Chapter 10, Sec. 47.
[9] Executive Order No. 292 (1987), Book IV, Chapter 2, Sec. 7(5).
[10] All under Book V, Title I (Constitutional Commission), Chapter 6 (Right to Self-Organization), Subtitle A (Civil Service Commission).
[11] The RRACCS have since been superseded by the 2017 Rules on Administrative Cases in the Civil Service (2017 RACCS) promulgated on 03 July 2017.
[12] Sections 7, 8, and 9 of the RRACCS provide:
Section 7. Cases Cognizable by the Civil Service Commission. — The Civil Service Commission shall take cognizance of the following cases:
A. Disciplinary
- Decisions of Civil Service Commission Regional Offices brought before it on appeal or petition for review;
- Decisions of heads of agencies imposing penalties exceeding thirty (30) days suspension or fine in an amount exceeding thirty (30) days salary brought before it on appeal;
- Complaints brought against Civil Service Commission personnel;
- Complaints against officials who are not presidential appointees;
- Decisions of heads of agencies imposing penalties not exceeding 30 days suspension or fine equivalent thereto but violating due process;
- Requests for transfer of venue of hearing on cases being heard by Civil Service Commission Regional Offices;
- Appeals from the order of preventive suspension; and
- Such other actions or requests involving issues arising out of or in connection with the foregoing enumeration.
Section 8. Cases Cognizable by Regional Offices. — Except as otherwise directed by the Commission, the Civil Service Commission Regional Offices shall take cognizance of the following cases:
A. Disciplinary
- Cases initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omissions were committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and/or the persons complained of are rank- and-file employees of agencies, local or national, within said geographical areas;
- Complaints involving Civil Service Regional Office personnel who are appointees of said office; and
- Petitions to place respondent under preventive suspension.
Section 9. Jurisdiction of Heads of Agencies. — The Secretaries and heads of agencies, and other instrumentalities, provinces, cities and municipalities shall have original concurrent jurisdiction with the Commission over their respective officers and employees. x x x (Emphases supplied).
[13] G.R. No. 157684, 27 April 2005; 496 Phil. 886, 903 (2005).
[14] G.R. No. 183445, 14 September 2011; 673 Phil. 3 18, 350 (2011).
[15] G.R. No. 163859, 15 August 2012; 692 Phil. 546, 565 (2012).
[16] 1987 CONSTITUTION, Art. VII, Sec. 17. See also Executive Order No. 292 (1987), Book III, Title I, Chapter 1, Sec. 1.
[17] Republic Act No. 6770 (1989), Sec. 25.
[18] See The Board of Trustees of the Government Service Insurance System, et al., v. Velasco, et al., 656 Phil. 385, 400-401 (2011).