J.A.B. Bulao & Associates

CASE 2011-0217: CONSTANCIO F. MENDOZA VS. SENEN C. FAMILARA and COMMISSION ON ELECTIONS (G.R. NO. 191017, 15 NOVEMBER 2011, PEREZ) SUBJECT: WHEN IS A CASE CONSIDERED MOOT AND ACADEMIC; EXCEPTIONS TO THE RULE THAT CASE SHOULD BE DISMISSED DUE TO MOOTNESS. (BRIEF TITLE: MENDOZA VS. COMELEC)

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DISPOSITIVE:

WHEREFORE, premises considered, the petition is hereby DISMISSED. The COMELEC Resolutions dated 18 September 2008 and 23 December 2009 in SPA (Brgy.) 07-243 are AFFIRMED.

            SO ORDERED.

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SUBJECTS/DOCTRINES/DIGEST:

PETITIONER MENDOZA RAN FOR BARANGAY CAPTAIN OF BARANGAY BALATASAN, ORIENTAL MINDORO IN THE OCTOBER 2007 BARANGAY ELECTIONS. RESPONDENT FAMILARA FILED DISQUALIFICATION CASE AGAINST MENDOZA ON THE GROUND THAT MENDOZA ALREADY SERVED THREE CONSECUTIVE TERMS AS PROVIDED BY LAW. MENDOZA COUNTERED THAT THE AMENDED LAW SHOULD NOT APPLY RETROACTIVELY. HOWEVER, NOW THAT THE CASE IS FOR RESOLUTION BY THE SUPREME COURT, THE TERM OF MENDOZA WHO WON IN THE ELECTION ALREADY EXPIRED. WILL THE SC STILL ENTERTAIN THE CASE?

NO. THE CASE IS ALREADY MOOT AND ACADEMIC. A CASE CAN BE DISMISSED DUE TO MOOTNESS.

Even without going into Mendoza’s penchant for filing confused petitions, the supervening event that is the conduct of the 2010 Barangay Elections renders this case moot and academic. The term of office for Barangay Captain of Balatasan for the 2007 Barangay Elections had long expired in 2010 following the last elections held on October 25 of the same year.

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WHAT IS A MOOT AND ACADEMIC CASE?

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value. As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness.^[1][15]

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ARE THERE EXCEPTIONS TO THE RULE  THAT COURTS SHOULD DISMISS A CASE ON GROUND OF MOOTNESS?

YES. THESE ARE: (1) THERE IS GRAVE VIOLATION OF THE CONSTITUTION; (2) EXCEPTIONAL CHARACTER AND PARAMOUNT PUBLIC INTEREST; (3) CONSTITUTIONAL ISSUE RAISED REQUIRES FORMULATION OF CONTROLLING PRINCIPLE; (4) CASE IS CAPABLE OF REPETITION.

Certainly, the rule is not set in stone and permits exceptions. Thus, we may choose to decide cases otherwise moot and academic if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest involved; third, the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; or fourth, the case is capable of repetition yet evasive of review.^[2][16] None of the foregoing exceptions calling for this Court to exercise jurisdiction obtains in this instance.

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CITE AN EXAMPLE WHEN CASE WAS DISMISSED DUE TO MOOTNESS.

CASE OF MENDOZA VS. MAYOR VILLAS.

The justiciability of the present petition is further decimated by our recent ruling in Mendoza v. Mayor Villas:^[3][17]

With the conduct of the 2010 barangay elections, a supervening event has transpired that has rendered this case moot and academic and subject to dismissal.  This is because, as stated in Fernandez v. Commission on Elections, “whatever judgment is reached, the same can no longer have any practical legal effect or, in the nature of things, can no longer be enforced.”  Mendoza‘s term of office has expired with the conduct of last year’s local elections. As such, Special Civil Action No. 08-10, where the assailed Orders were issued, can no longer prosper. Mendoza no longer has any legal standing to further pursue the case, rendering the instant petition moot and academic. (emphasis supplied)

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IS THE ISSUE RAISED BY MENDOZA RE RETROACTIVITY OF THE 3 TERM RULE VALID?

NO. THE THREE TERM LIMIT HAD LONG BEEN SET BY LAW.

In any event, upon a perusal of the merits or lack thereof, the petition is clearly dismissible.

Our decision in COMELEC v. Cruz^[4][18] settles, once and for all, the constitutionality of the three-consecutive term limit rule reckoned from the 1994 Barangay Elections. We unequivocally declared, thus:

The Retroactive Application Issue

          xxx

          Our first point of disagreement with the respondents and with the RTC is on their position that a retroactive application of the term limitation was made under RA No. 9164. Our own reading shows that no retroactive application was made because the three-term limit has been there all along as early as the second barangay law (RA No. 6679) after the 1987 Constitution took effect; it was continued under the [Local Government Code] and can still be found in the current law. We find this obvious from a reading of the historical development of the law.

          The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it imposed a two-consecutive term limit. After only six months, Congress, under RA No. 6679 (1988), changed the two-term limit by providing for a three-consecutive term limit. This consistent imposition of the term limit gives no hint of any equivocation in the congressional intent to provide a term limitation. Thereafter, RA No. 7160 – the LGC – followed, bringing with it the issue of whether it provided, as originally worded, for a three-term limit for barangay officials. We differ with the RTC analysis of this issue.

Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is divided into several chapters dealing with a wide range of subject matters, all relating to local elective officials, as follows: a. Qualifications and Election (Chapter I); b. Vacancies and Succession (Chapter II); c. Disciplinary Actions (Chapter IV) and d. Recall (Chapter V). Title II likewise contains a chapter on Local Legislation (Chapter III).
          These Title II provisions are intended to apply to all local elective officials, unless the contrary is clearly provided. A contrary application is provided with respect to the length of the term of office under Section 43(a); while it applies to all local elective officials, it does not apply to barangay officials whose length of term is specifically provided by Section 43(c). In contrast to this clear case of an exception to a general rule, the three-term limit under Section 43(b) does not contain any exception; it applies to all local elective officials who must perforce include barangay officials.

          An alternative perspective is to view [Section] 43(a), (b) and (c) separately from one another as independently standing and self-contained provisions, except to the extent that they expressly relate to one another. Thus, [Section] 43(a) relates to the term of local elective officials, except barangay officials whose term of office is separately provided under Sec. 43(c). [Section] 43(b), by its express terms, relates to all local elective officials without any exception. Thus, the term limitation applies to all local elective officials without any exclusion or qualification.

          Either perspective, both of which speak of the same resulting interpretation, is the correct legal import of Section 43 in the context in which it is found in Title II of the LGC.

                                      xxx

          All these inevitably lead to the conclusion that the challenged proviso has been there all along and does not simply retroact the application of the three-term limit to the barangay elections of 1994. Congress merely integrated the past statutory changes into a seamless whole by coming up with the challenged proviso.

          With this conclusion, the respondents’ constitutional challenge to the proviso—based on retroactivity—must fail.^[5][19]

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EN BANC

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RESOLUTION

PEREZ, J.:

This petition raises a far from novel issue, i.e., the constitutionality of Section 2^[6][1] of Republic Act No. 9164 (entitled “An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, amending RA No. 7160, as amended, otherwise known as the Local Government Code of 1991″). As other barangay officials had done in previous cases,^[7][2] petitioner Constancio F. Mendoza (Mendoza) likewise questions the retroactive application of the three-consecutive term limit imposed on barangay elective officials beginning from the 1994 barangay elections.

We here have a special civil action, designated by Mendoza as a “petition for review on certiorari under Rule 64 in relation to Rule 65 of the Rules of Court,” seeking to annul and set aside the Resolution^[8][3] of the Commission on Elections (COMELEC) En Banc.

Mendozawas a candidate for Barangay Captain of Barangay Balatasan, Oriental Mindoro in the 29 October 2007 Barangay Elections. As required by law, Mendoza filed a certificate of candidacy. Prior thereto, Mendoza had been elected as Barangay Captain of Barangay Balatasan for three (3) consecutive terms, on 9 May 1994, 12 May 1997 and 15 July 2002.

On 26 October 2007, respondent Senen C. Familara (Familara) filed a Petition to Disqualify Mendoza averring that Mendoza, under Section 2 of RA No. 9164, is ineligible to run again for Barangay Captain of Barangay Balatasan, having been elected and having served, in the same position for three (3) consecutive terms immediately prior to the 2007 Barangay Elections.

Posthaste, Mendozafiled his Answer^[9][4] refuting Familara’s allegations and asseverating the following:

1.         That he has the qualifications and none of the disqualification to vote and be voted for in the October 29, 2007 Barangay Elections for Barangay Balatasan, Bulalacao, Oriental Mindoro;

2.         [He] further AFFIRMS that he has duly-filed his Certificate of Candidacy for Punong Barangay of Barangay Balatasan, Bulalacao, Oriental Mindoro;

3.         [He] RAISES THE QUESTION of the legal personality of [respondent Senen] Familara because:

1. He is not a party in interest in the Barangay Elections for Punong Barangay at Barangay Balatasan;
2. He is not a resident nor registered voter of Barangay Balatasan;
3. He is not a candidate to any elective position for Barangay Balatasan in the scheduled October 29, 2007 Barangay Elections;

4.         That while the proper party in interest to file a petition for disqualification is any registered voter of Barangay Balatasan, the instant petition is intended to benefit the only other candidate for Punong Barangay for Balatasan in the forthcoming elections, TOMAS PAJANEL, but said person is a permanent resident not only of a Barangay different from Barangay Balatasan but worse, said person is a permanent resident of Bulalacao’s adjoining town, Mansalay;

                                    xxx

6.         The petition suffers from legal infirmities;

                                    xxx

            The present petition is premature. It should be filed within ten (10) days from proclamation of election results.

            Further, [Senen] Familara is not a proper party to file the petition. It must be filed by a candidate who has duly filed a certificate of candidacy and has been voted for the same office.

            Finally, the petition was filed before the wrong forum. It must be filed before the Municipal Trial Court. The COMELEC has the exclusive appellate jurisdiction over all contests x x x involving elective barangay officials decided by trial courts of limited jurisdiction.

On 13 November 2007, the Commission on Elections (COMELEC) Assistant Regional Election Director of Region IV, Atty. Jocelyn V. Postrado, issued a Resolution^[10][5] recommending that necessary action be filed against Mendoza for misrepresenting himself as a qualified candidate for the position of Barangay Captain of Balatasan:

RESOLUTION/RECOMMENDATION

            Pursuant to the delegated authority vested to the undersigned by the Omnibus Election Law and other election laws and after issuing the necessary summons to MR. CONSTANCIO F. MENDOZA on the above Petition for Disqualification filed by Mr. Senen C, Familara, which to no avail this office until now has not yet received the required affidavits from Mr. Mendoza, and wherein by said act and under our COMELEC Rules of Procedure, he is deemed to have expressly waived his right to present evidence in his defense. xxx

            Ruling on the submitted petition and supporting evidence, we find Mr. Mendoza to have completed the three (3) term-limit and yet, still ran for office knowing that he was prohibited. Please find a copy of the Certification issued by the Office of the Election Officer, Bulalacao, Oriental Mindoro verifying that Mr. Mendoza filed a Certificate of Candidacy for the position of Punong Barangay. His act of misrepresenting himself as qualified to run for the said position of Punong Barangay at Balatasan, Municipality of Bulalacao, Province of Oriental Mindoro in the 29 October 2007 Barangay Elections, is in violation of Section 2 of Republic Act No. 9164, the Omnibus election Law and other election laws.

            WHEREFORE, premises considered, the undersigned hereby recommends that necessary action be filed against MR. CONSTANCIO F. MENDOZA.

Undaunted, Mendoza filed a flurry of motions: (1) an Ex-Parte Motion to Recall;^[11][6] (2) Ex-Parte Motion to Dismiss;^[12][7] and (3) Ex-Parte Motion to Resolve,^[13][8] all aiming to forestall the implementation of the          13 November 2007 Resolution of the COMELEC Assistant Regional Election Director of Region IV, Atty. Postrado, and the continuation of the Petition for Disqualification filed by Familara againstMendoza.

In another turn of events, Mendozawon in the elections; he was proclaimed Barangay Captain of Balatasan.

Consequently, Mendoza’s rival, Thomas Pajanel, filed a petition for quo warranto and mandamus against Mendoza before the Municipal Circuit Trial Court (MCTC) of Mansalay-Bulalacao docketed as Election Case No. 407-B. Pajanel contended that Mendoza is ineligible to occupy the position of Barangay Captain of Balatasan, having been elected and having already served as such for three (3) consecutive terms.

In yet another setback, the MCTC promulgated its Decision and disqualifiedMendozain accordance with the three-consecutive term rule provided in Section 2 of RA No. 9164. Not unexpectedly,Mendozaappealed the MCTC Decision before the COMELEC. The appeal is docketed as EAC (BRGY) No. 101-2008 and is pending before the COMELEC Second Division.

On the other litigation front concerning the Petition for Disqualification filed by Familara against Mendoza, the COMELEC First Division issued a Resolution^[14][9] agreeing with the recommendation of the COMELEC Assistant Regional Election Director of Region IV that Mendoza is disqualified from running as Barangay Captain of Balatasan under the three-consecutive term limit rule. The COMELEC shot downMendoza’s technical objections to the Petition for Disqualification, to wit:

            [Mendoza’s] contentions that the petition [for disqualification] should be dismissed as [Familara] lacks the personality to file the said petition since the latter is neither a candidate nor a registered voter of Barangay Balatasan, Municipality of Bulalacao, that it was prematurely filed and was filed before a wrong forum are untenable.

            It is undisputed that the instant case is a Petition for Disqualification involving barangay officials, hence, Section 11 in relation to Section 10 of COMELEC Resolution No. 8297 issued on September 6, 2007 is the applicable rule with respect to the qualifications of [Mendoza], period of filing and the tribunal to file the same.

            Section 11 in relation to Section 10 of COMELEC Resolution No. 8297 provides that:

            Sec. 10.           Petition to deny due course to or cancellation of a certificate of candidacy. – A verified petition to deny due course to or cancel a certificate of candidacy pursuant to Sec. 69 (nuisance candidate) or Sec. 78 (material misrepresentation in the certificate of candidacy) of the Omnibus Election Code shall be filed directly with the office of Provincial Election Supervisor concerned by any registered candidate for the same office personally or through a duly-authorized representative within five (5) days from the last day for filing of certificate of candidacy. In the National Capital Region, the same be filed directly with the Office of the Regional Election Director.

            In the Provinces where the designated Provincial Election Supervisor is not a lawyer the petition shall be filed with the Regional Election Director concerned.

            Filing by mail is not allowed.

            Within twenty four (24) hours from receipt of the petition, the Provincial Election Supervisor or the Regional Election Director of the National Capital Region, as the case may be, shall issue the corresponding summons requiring the respondent candidate to answer the petition within three (3) days from receipt. Immediately upon receipt of the answer, the petition shall be set for hearing for the reception of evidence of the parties but not later than five (5) days from the service of summons. The Resolution of the Hearing Officer shall be submitted to the Commission through the Clerk of the Commission within fifteen (15) days from receipt of the petition.

            Sec. 11.           Petition for Disqualification. – A verified petition to disqualify a candidate on the ground of ineligibility or under Section 68 of the Omnibus Election Code may be filed at anytime before proclamation of the winning candidate by any registered voter or any candidate for the same office. The procedure prescribed in the preceding section shall be applicable herein.

            xxx

            All disqualification cases filed on the ground of ineligibility shall continue although the candidate has already been proclaimed.

            Applying the above-cited provisions in the case at bar, it only requires the petitioner to be a registered voter for him to acquire locus standi to file the instant petition. Further, it provides that a petition for disqualification must be filed at any time before the proclamation of the winning candidate. Furthermore, it also requires that the said petition must be filed with the Provincial Election Supervisor or Regional Election Director, as the case may be. It is clear that in the present case these requirements under the above-cited provisions of the law have been complied.

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition. [Petitioner], Constancio Farol Mendoza, having already served as Punong Barangay of Barangay Balatasan, Bulalacao, Oriental Mindoro for three consecutive terms is hereby DISQUALIFIED from being a candidate for the same office in the October 29, 2007 Synchronized Barangay and Sangguniang Kabataan Elections. Considering that [Mendoza] had already been proclaimed, said proclamation is hereby ANNULLED. Succession to said office shall be governed by the provisions of Section 44 of the Local Government Code.^[15][10]

Mendozafiled a Motion to Recall Resolution, to Dismiss the Case and to Conduct Appropriate Investigation to Determine Criminal and Administrative Liability^[16][11] before the COMELEC En Banc, seeking the reversal of the Resolution of the COMELEC First Division.

In a Resolution^[17][12] dated 23 December 2009, the COMELEC En Banc denied the Motion to Recall for lack of merit. It dismissedMendoza’s arguments, thus:

            It appears from Section 10 of Resolution No. 8297 that the [COMELEC] has indeed jurisdiction to entertain this petition in the first place. The petition was filed on September 23, 2007, or less than five days from the last day of filing the certificates of candidacy for the position of Punong Barangay. The assistant Regional Director proceeded to issue subpoena, and thereafter, submitted her Resolution/Recommendation which was forwarded to the [COMELEC] for appropriate action through the Clerk of the [COMELEC].

            The records of the case would reveal that this petition has run its normal course. The allegation ofMendozathat he was allegedly deprived of due process is of no avail. It appears from the registry return receipt attached to the records of the case that summons were duly received by Mendoza on October 24, 2007, as such, he is bound to answer the allegations of the petition within three days from receipt. Failing in this respect,Mendozais said to have waived his right to file his answer within the time given by the Rules.

            Furthermore, we cannot subscribe to the argument ofMendozathat the pendency of the proceedings before the Second Division docketed as EAC (Brgy) 101-2008 would merit the dismissal of this petition.

            xxx

            The Supreme Court held in the case of Sunga vs. COMELEC, and Lonzanida v. COMELEC, that:

“This court has held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed.”

            Considering that [the COMELEC] is tasked with the duty to continue with the trial and hearing of the disqualification case of Mendozato its conclusion despite the pendency of EAC (Brgy) No. 101-2008, then there is no cogent reason to disturb the Resolution of the First Division dated September 18, 2008.^[18][13]

          Unperturbed, Mendozafiled the instant petition alleging grave abuse of discretion in the 23 December 2009 Resolution of the COMELEC En Banc. Mendoza insists that the disqualification case should have been dismissed, or, at the least, consolidated with the quo warranto case on appeal before the COMELEC Second Division because the latter case stems from a judicial proceeding which “followed strictly the requirements of law and the rules.” Mendoza then blithely puts in issue the constitutionality of the retroactive application to the 1994 Barangay Elections of the three-consecutive term limit rule. For good measure, Mendoza asserts denial of due process as would invalidate the disqualification proceedings against him and his resulting disqualification from the race for Barangay Captain of Balatasan.

The jettisoning of the petition is inevitable: the holding of the October 2010 Barangay Elections makes the issues posed by petitioner moot and academic.

Before anything else, we note the apparent mix-up in Mendoza’s designation of the present petition. He alleged grave abuse of discretion, but incorrectly specified in the prefatory statement of the petition that it is a “petition for review on certiorari.”

For clarity and to obviate confusion, we treat the instant petition as one filed under Rule 64 in relation to Rule 65 of the Rules of Court since the totality of the allegations contained therein seek to annul and set aside the Resolution of the COMELEC en banc because it is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. As we have also noted in Mendoza v. Mayor Villas,^[19][14] another case filed byMendoza before us whereMendoza did not specify under which Rule (45 or 65) his petition was being filed, this Court has the discretion to determine whether a petition was filed under Rule 45 or 65 of the Rules of Court.

Even without going into Mendoza’s penchant for filing confused petitions, the supervening event that is the conduct of the 2010 Barangay Elections renders this case moot and academic. The term of office for Barangay Captain of Balatasan for the 2007 Barangay Elections had long expired in 2010 following the last elections held on October 25 of the same year.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value. As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness.^[20][15]

Certainly, the rule is not set in stone and permits exceptions. Thus, we may choose to decide cases otherwise moot and academic if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest involved; third, the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; or fourth, the case is capable of repetition yet evasive of review.^[21][16] None of the foregoing exceptions calling for this Court to exercise jurisdiction obtains in this instance.

The justiciability of the present petition is further decimated by our recent ruling in Mendoza v. Mayor Villas:^[22][17]

With the conduct of the 2010 barangay elections, a supervening event has transpired that has rendered this case moot and academic and subject to dismissal.  This is because, as stated in Fernandez v. Commission on Elections, “whatever judgment is reached, the same can no longer have any practical legal effect or, in the nature of things, can no longer be enforced.”  Mendoza‘s term of office has expired with the conduct of last year’s local elections. As such, Special Civil Action No. 08-10, where the assailed Orders were issued, can no longer prosper. Mendoza no longer has any legal standing to further pursue the case, rendering the instant petition moot and academic. (emphasis supplied)

In any event, upon a perusal of the merits or lack thereof, the petition is clearly dismissible.

Our decision in COMELEC v. Cruz^[23][18] settles, once and for all, the constitutionality of the three-consecutive term limit rule reckoned from the 1994 Barangay Elections. We unequivocally declared, thus:

The Retroactive Application Issue

            xxx

            Our first point of disagreement with the respondents and with the RTC is on their position that a retroactive application of the term limitation was made under RA No. 9164. Our own reading shows that no retroactive application was made because the three-term limit has been there all along as early as the second barangay law (RA No. 6679) after the 1987 Constitution took effect; it was continued under the [Local Government Code] and can still be found in the current law. We find this obvious from a reading of the historical development of the law.

            The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it imposed a two-consecutive term limit. After only six months, Congress, under RA No. 6679 (1988), changed the two-term limit by providing for a three-consecutive term limit. This consistent imposition of the term limit gives no hint of any equivocation in the congressional intent to provide a term limitation. Thereafter, RA No. 7160 – the LGC – followed, bringing with it the issue of whether it provided, as originally worded, for a three-term limit for barangay officials. We differ with the RTC analysis of this issue.

Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is divided into several chapters dealing with a wide range of subject matters, all relating to local elective officials, as follows: a. Qualifications and Election (Chapter I); b. Vacancies and Succession (Chapter II); c. Disciplinary Actions (Chapter IV) and d. Recall (Chapter V). Title II likewise contains a chapter on Local Legislation (Chapter III).
            These Title II provisions are intended to apply to all local elective officials, unless the contrary is clearly provided. A contrary application is provided with respect to the length of the term of office under Section 43(a); while it applies to all local elective officials, it does not apply to barangay officials whose length of term is specifically provided by Section 43(c). In contrast to this clear case of an exception to a general rule, the three-term limit under Section 43(b) does not contain any exception; it applies to all local elective officials who must perforce include barangay officials.

            An alternative perspective is to view [Section] 43(a), (b) and (c) separately from one another as independently standing and self-contained provisions, except to the extent that they expressly relate to one another. Thus, [Section] 43(a) relates to the term of local elective officials, except barangay officials whose term of office is separately provided under Sec. 43(c). [Section] 43(b), by its express terms, relates to all local elective officials without any exception. Thus, the term limitation applies to all local elective officials without any exclusion or qualification.

            Either perspective, both of which speak of the same resulting interpretation, is the correct legal import of Section 43 in the context in which it is found in Title II of the LGC.

                                                xxx

            All these inevitably lead to the conclusion that the challenged proviso has been there all along and does not simply retroact the application of the three-term limit to the barangay elections of 1994. Congress merely integrated the past statutory changes into a seamless whole by coming up with the challenged proviso.

            With this conclusion, the respondents’ constitutional challenge to the proviso—based on retroactivity—must fail.^[24][19]

            WHEREFORE, premises considered, the petition is hereby DISMISSED. The COMELEC Resolutions dated 18 September 2008 and 23 December 2009 in SPA (Brgy.) 07-243 are AFFIRMED.

            SO ORDERED.

                                                JOSE PORTUGAL PEREZ

                                                Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

MARIA LOURDES P. A. SERENO                          BIENVENIDO L. REYES

            Associate Justice                                                       Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

                                                RENATO C. CORONA

                                                Chief Justice

CASE 2011-0216: MONICO K. IMPERIAL, JR. VS. GOVERNMENT SERVICE INSURANCE SYSTEM (G.R. NO. 191224, 04 OCTOBER 2011, BRION, J.) SUBJECTS: GRAVE MISCONDUCT; SIMPLE MISCONDUCT, PROCEDURAL DUE PROCESS; PENALTIES FOR MISCONDUCT; EXAMPLES OF CLEAR DEFIANCE OF THE LAW AND PROCEDURES (BRIEF TITLE: IMPERIAL VS. GSIS)

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DISPOSITIVE:

WHEREFORE, premises considered, we PARTIALLY GRANT the petition for review on certiorari and MODIFY the assailed decision and resolution of the Court of Appeals. Petitioner Monico K. Imperial, Jr. is found GUILTY of SIMPLE MISCONDUCT and is hereby SUSPENDED from the time the preventive suspension that GSIS imposed lapsed, up to the finality of this Decision. 

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SUBJECTS/DOCTRINES/DIGESTS

PETITIONER GSIS NAGA CITY BRANCH MANAGER IMPERIAL APPROVED GSIS LOANS DESPITE LACK OF REQUIREMENTS. HE AND HIS COUNSEL FAILED TO APPEAR DURING AN ADMINISTRATIVE HEARING, NOTICE OF WHICH WAS ONLY RECEIVED BY COUNSEL THROUGH FAX. ALSO, COUNSEL’S ANSWER WAS NOT VERIFIED. AFTER THE HEARING, PETITIONER WAS DEEMED TO HAVE WAIVED HIS RIGHT TO HEARING. HIS ANSWER WAS ALSO EXPUGNED FROM THE RECORDS FOR BEING UNVERIFIED. GSIS RULED HE COMMITTED GRAVE MISCONDUCT AND IMPOSED THE PENALTY OF DISMISSAL. WAS PETITIONER DEPRIVED OF PROCEDURAL DUE PROCESS?

NO BECAUSE THE GSIS DECISION CONSIDERED THE POINTS HE RAISED IN HIS ANSWER. HE WAS HEARD THROUGH HIS PLEADINGS. ALSO, BY FILING A MOTION FOR RECONSIDERATION HE IS DEEMED TO HAVE WAIVED HIS RIGHT UNDER PROCEDURAL DUE PROCESS.

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PETITIONER WAS ADJUDGED BY GSIS, SSC AND CA AS GUILTY OF GRAVE MISCONDUCT? WAS THIS RULING CORRECT?

NO. NO SUBSTANTIAL EVIDENCE WAS ADDUCED TO SUPPORT THE ELEMENTS OF “CORRUPTION,” “CLEAR INTENT TO VIOLATE THE LAW” OR “FLAGRANT DISREGARD OF ESTABLISHED RULE” THAT MUST BE PRESENT TO CHARACTERIZE THE MISCONDUCT AS GRAVE.

PETITIONER ONLY COMMITTED SERIOUS LAPSE OF JUDGMENT SUFFICIENT TO HOLD HIM LIABLE FOR SIMPLE MISCONDUCT.

Thus, the petitioner’s liability under the given facts only involves simple misconduct. As Branch Manager of the GSIS Naga Field Office, he is presumed to know all existing policies, guidelines and procedures in carrying out the agency’s mandate in the area.  By  approving the loan applications of eight GSIS Naga Field Office employees who did not fully meet the required qualifications, he committed a serious lapse of judgment sufficient to hold him liable for simple misconduct.

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BUT PETITIONER COMMITTED SUCH OFFENSE TWICE ALREADY. CAN HE BE NOT CONSIDERED TO HAVE COMMITTED “FLAGRANT DISREGARD OF ESTABLISHED RULE”?

NO. THERE MUST BE DELIBERATE DEFIANCE OF THE RULES. THE CSC’S FINDINGS ON THE PETITIONER’S ACTIONS PRIOR TO THE APPROVAL OF THE LOANS NEGATE THE PRESENCE OF ANY INTENT ON THE PETITIONER’S PART TO DELIBERATELY DEFY THE POLICY OF THE GSIS. FIRST, GSIS BRANCH MANAGERS HAVE BEEN GRANTED IN THE PAST THE AUTHORITY TO APPROVE LOAN APPLICATIONS BEYOND THE PRESCRIBED REQUIREMENTS OF GSIS; SECOND, THERE WAS A CUSTOMARY LENIENT PRACTICE IN THE APPROVAL OF LOANS EXERCISED BY SOME BRANCH MANAGERS NOTWITHSTANDING THE EXISTING GSIS POLICY; AND THIRD, THE PETITIONER FIRST SOUGHT THE APPROVAL OF HIS IMMEDIATE SUPERVISOR BEFORE ACTING ON THE LOAN APPLICATIONS. THESE CIRCUMSTANCES RUN COUNTER TO THE CHARACTERISTIC FLAGRANT DISREGARD OF THE RULES THAT GRAVE MISCONDUCT REQUIRES. 

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WHAT IS PROCEDURAL DUE PROCESS?

IT IS THE CONSTITUTIONAL STANDARD DEMANDING THAT NOTICE AND AN OPPORTUNITY TO BE HEARD BE GIVEN BEFORE JUDGMENT IS RENDERED.

Procedural due process is the constitutional standard demanding that notice and an opportunity to be heard be given before judgment is rendered. As long as a party is given the opportunity to defend his interests in due course, he would have no reason to complain; the essence of due process is in the opportunity to be heard.^[1][17] A formal or trial-type hearing is not always necessary.

        In this case, while the petitioner did not participate in the August 17, 2006 pre-hearing conference (despite receipt on August 14, 2006 of a fax copy of the August 11, 2006 order), Garcia’s decision of February 21, 2007 duly considered and discussed the defenses raised in Atty. Molina’s pleadings, although the answer was ordered expunged from the records because it was unverified and because Atty. Molina failed to submit a letter of authority to represent the petitioner.

What negates any due process infirmity is the petitioner’s subsequent motion for reconsideration which cured whatever defect the Hearing Officer might have committed in the course of hearing the petitioner’s case.^[2][18] Again, Garcia duly considered the arguments presented in the petitioner’s motion for reconsideration when he rendered the June 6, 2007 resolution.^[3][19]  Thus, the petitioner was actually heard through his pleadings.

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WHAT IS MISCONDUCT?

AN INTENTIONAL WRONGDOING OR A DELIBERATE VIOLATION OF A RULE OF LAW OR STANDARD OF BEHAVIOR.

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WHEN IS MISCONDUCT GRAVE?

A MISCONDUCT IS GRAVE WHERE THE ELEMENTS OF CORRUPTION, CLEAR INTENT TO VIOLATE THE LAW OR FLAGRANT DISREGARD OF ESTABLISHED RULE ARE PRESENT.^[4][21] OTHERWISE, A MISCONDUCT IS ONLY SIMPLE.

Misconduct has a legal and uniform definition. Misconduct has been defined as an intentional wrongdoing or a deliberate violation of a rule of law or standard of behavior, especially by a government official.^[5][20] A misconduct is grave where the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are present.^[6][21] Otherwise, a misconduct is only simple.

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GIVE EXAMPLES OF JURISPRUDENCE WHEN THERE HAS BEEN OPEN DEFIANCE OF A CUSTOMARY RULE.

AS FOLLOWS:

Flagrant disregard of rules is a ground that jurisprudence has already touched upon. It has been demonstrated, among others, in the instances when there had been open defiance of a customary rule;^[7][23] in the repeated voluntary disregard of established rules in the procurement of supplies;^[8][24] in the practice of illegally collecting fees more than what is prescribed for delayed registration of marriages;^[9][25] when several violations or disregard of regulations governing the collection of government funds were committed;^[10][26] and when the employee arrogated unto herself responsibilities that were clearly beyond her given duties.^[11][27] The common denominator in these cases was the employee’s propensity to ignore the rules as clearly manifested by his or her actions.

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WHAT IS THE PENALTY FOR SIMPLE MISCONDUCT?

SUSPENSION FOR ONE MONTH AND ONE DAY TO SIX MONTHS FOR THE FIRST OFFENSE AND DISMISSAL FOR THE SECOND OFFENSE.

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BUT PETITIONER HAS COMMITTED THE OFFENSE TWICE. WHY SHOULD HIS PENALTY BE NOT DISMISSAL?

BECAUSE IT IS NOT PROPORTIONATE TO THE NATURE AND EFFECT OF HIS TRANSGRESSION.

The Revised Uniform Rules of the Civil Service (Civil Service Rules) classifies simple misconduct as a less grave offense.  Under Section 52(B) (2), Rule IV of the Civil Service Rules, the commission of simple misconduct is penalized by suspension for one (1) month and one (1) day to six (6) months for the first offense, and dismissal from the service for the second offense. While records show that this is not the petitioner’s first offense as he was previously suspended for one (1) year for neglect of duty, we believe that his dismissal would be disproportionate to the nature and effect of the transgression he committed as the GSIS did not suffer any prejudice through the loans he extended; these loans were for GSIS employees and were duly paid for. Thus, for his second simple misconduct, we impose on the petitioner the penalty of suspension from the lapse of his preventive suspension by GSIS up to the finality of this Decision.^[12][28]

==================

Republic of thePhilippines

Supreme Court

Manila

EN BANC

x—————————————————————————————–x

D E C I S I O N

BRION, J.:

We resolve the petition for review on certiorari,^[13][1] filed by petitioner Monico K. Imperial, Jr., from the December 10, 2009 decision^[14][2] and the February 5, 2010 resolution^[15][3] of the Court of Appeals (CA) in CA-G.R. SP No. 101297.

The Factual Antecedents

          On October 19, 2005, the Government Service Insurance System (GSIS) administratively charged the petitioner, then Branch Manager of the GSIS Naga Field Office, with Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service^[16][4] for approving the requests for salary loans of eight GSIS Naga Field Office employees who lacked the contribution requirements under GSIS Policy and Procedural Guidelines (PPG) No. 153-99,^[17][5] giving them unwarranted benefits through his evident bad faith, manifest partiality or gross negligence, and causing injury to the pension fund.^[18][6] He was required to answer and was preventively suspended for ninety (90) days.

On July 21, 2006, Atty. Manuel T. Molina, the petitioner’s purported counsel, filed an unverified answer in behalf of the petitioner, who was then in theUnited States of America.  Atty. Molina explained that the petitioner granted the loan applications under an existing board resolution, with the approval of then GSIS Vice President Romeo Quilatan; the loans were fully paid, without causing any prejudice to the service.

          In a July 26, 2006order,^[19][7]  Hearing Officer Violeta C.F. Quintos set the pre-hearing conference on August 17, 2006 at the GSIS Legazpi Field Office. A week later, in an August 2, 2006 order,^[20][8] the Hearing Officer modified her previous order and set the venue at the GSIS Naga Field Office.

Atty. Molina filed a motion for reconsideration, pointing out that the GSIS Rules of Procedure set the venue of pre-hearing conferences at the GSIS Main Office in PasayCity. The Hearing Officer denied the motion for reconsideration in her August 11, 2006order,^[21][9] stating that the prosecution requested the change of venue. Copies of the order were duly sent via fax and regular mail. Atty. Molina received the faxed copy on August 14, 2006, while he received the registered mail on August 18, 2006.

          At the scheduled August 17, 2006pre-hearing conference, the petitioner and Atty. Molina failed to appear. Atty. Molina likewise failed to submit the petitioner’s verification of the answer and to submit a letter of authority to represent the petitioner in the case. On the prosecution’s motion, the Hearing Officer declared the petitioner to have waived his right to file his answer and to have a formal investigation of his case, and expunged the unverified answer and other pleadings filed by Atty. Molina from the records. The case was then submitted for resolution based on the prosecution’s submitted documents.^[22][10]

          GSIS President and General Manager Winston F. Garcia found the petitioner guilty of grave misconduct and conduct prejudicial to the best interest of the service.^[23][11] He noted that the evidence presented by the prosecution clearly showed that the petitioner’s approval of the requests for salary loans of eight GSIS Naga Field Office employees was improper because they lacked the contribution requirements under PPG No. 153-99. He also noted that the pleadings filed by Atty. Molina, as the petitioner’s purported counsel, were expunged from the records, but he, nonetheless, discussed the defenses raised in these pleadings and found them unmeritorious.

Noting that this was the petitioner’s second administrative offense (he had previously been suspended for one [1] year for gross neglect of duty for failing to implement the recommendations of the Internal Audit Services Group pertaining to the handling of returned-to-sender checks, resulting in a GSIS Naga Field Office Cashier defrauding the GSIS of checks), Garcia imposed the penalty of dismissal with the accessory penalties of forfeiture of retirement benefits, cancellation of eligibility and perpetual disqualification from re-employment in the government. On the same date, the GSIS Board of Trustees approved the decision.^[24][12]

In a June 6, 2007 resolution,^[25][13] Garcia denied the petitioner’s motion for reconsideration, noting that Atty. Molina had no authority to appear for and in behalf of the petitioner, having failed to submit any formal written authority; that the petitioner’s answer was unverified; and that, in any event, the petitioner had no evidence sufficient to overturn the evidence presented by the prosecution. 

The petitioner appealed to the Civil Service Commission (CSC), reiterating his arguments of denial of due process and the lack of evidence against him.

          The CSC rejected the petitioner’s claim of due process violation, finding that the petitioner’s filing of a motion for reconsideration cured whatever procedural due process defect there might have been.^[26][14]  It noted that the records of the case showed that the petitioner approved the loan applications despite the patent ineligibility of the loan applicants. The CSC thus affirmed the petitioner’s dismissal for grave misconduct, but added as an accessory penalty the prohibition from taking any civil service examination.

The petitioner elevated his case to the CA through a petition for review under Rule 43 of the Rules of Court.

          In its December 10, 2009decision,^[27][15]  the CA dismissed the petition, and denied the subsequent motion for reconsideration,^[28][16] finding no reversible error in the challenged CSC Resolution.

The Petition

          In the petition before us, the petitioner argues that he was denied due process when the August 17, 2006 pre-hearing conference was conducted in his absence without prior notice of the August 11, 2006 order denying the motion for reconsideration of the order of change of venue, since Atty. Molina received by registered mail a copy of the August 11, 2006 order only on August 18, 2006, or a day after the August 17, 2006 pre-hearing conference. The petitioner pleads good faith in approving the loans based on an existing GSIS Board Resolution which authorizes branch managers to approve loans for meritorious and special reasons; the loans were cleared by the Commission on Audit and settled by the borrowers. He contends that the penalty of dismissal is too severe in the absence of any wrongful intent and given his 40 years of government service.

The Case for Respondent GSIS

          The GSIS submits that the petitioner was not denied due process because Atty. Molina received onAugust 14, 2006a fax copy of theAugust 11, 2006order. On the merits of the case, the GSIS maintains that the evidence on record duly established the petitioner’s administrative culpability for acts inimical to the interest of the public, warranting his dismissal from the service; the penalty of dismissal was warranted since this was the petitioner’s second administrative offense.

The Issues

The issues are: (1) whether the petitioner was denied due process, and (2) whether there was substantial evidence to support petitioner’s dismissal from the service.

The Court’s Ruling

  We PARTIALLY GRANT the petition and modify the findings of the CA pertaining to the petitioner’s administrative liability.

The Procedural Due Process Issue

Procedural due process is the constitutional standard demanding that notice and an opportunity to be heard be given before judgment is rendered. As long as a party is given the opportunity to defend his interests in due course, he would have no reason to complain; the essence of due process is in the opportunity to be heard.^[29][17] A formal or trial-type hearing is not always necessary.

          In this case, while the petitioner did not participate in the August 17, 2006 pre-hearing conference (despite receipt on August 14, 2006 of a fax copy of the August 11, 2006 order), Garcia’s decision of February 21, 2007 duly considered and discussed the defenses raised in Atty. Molina’s pleadings, although the answer was ordered expunged from the records because it was unverified and because Atty. Molina failed to submit a letter of authority to represent the petitioner.

What negates any due process infirmity is the petitioner’s subsequent motion for reconsideration which cured whatever defect the Hearing Officer might have committed in the course of hearing the petitioner’s case.^[30][18] Again, Garcia duly considered the arguments presented in the petitioner’s motion for reconsideration when he rendered the June 6, 2007 resolution.^[31][19]  Thus, the petitioner was actually heard through his pleadings.

Findings of facts of administrative bodies accorded finality when supported by substantial evidence

Misconduct has a legal and uniform definition. Misconduct has been defined as an intentional wrongdoing or a deliberate violation of a rule of law or standard of behavior, especially by a government official.^[32][20] A misconduct is grave where the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are present.^[33][21] Otherwise, a misconduct is only simple.

No doubt exists in our mind that the petitioner committed misconduct in this case.  The records clearly show that the petitioner committed the acts complained of, i.e., he approved the requests for salary loans of eight GSIS Naga Field Office employees who lacked the necessary contribution requirements under PPG No. 153-99.  After a careful review of the records, however, we disagree with the findings of the GSIS, the CSC and the CA that the petitioner’s acts constituted grave misconduct. While we accord great respect to the factual findings of administrative agencies that misconduct was committed, we cannot characterize the offense committed as grave. No substantial evidence was adduced to support the elements of “corruption,” “clear intent to violate the law” or “flagrant disregard of established rule” that must be present to characterize the misconduct as grave.

 We are aware that to the CSC, the mere act of approving the loan applications on several occasions proves the element of flagrant disregard of established rules to constitute grave misconduct.  Thus, it said:

            The act of the appellant in approving salary loan applications of his subordinates over and above the prescribed rates under the GSIS policy, not only once but several times, indicates his flagrant and wanton transgression of the said policy. He, in fact, abused his authority in doing so.^[34][22]

Flagrant disregard of rules is a ground that jurisprudence has already touched upon. It has been demonstrated, among others, in the instances when there had been open defiance of a customary rule;^[35][23] in the repeated voluntary disregard of established rules in the procurement of supplies;^[36][24] in the practice of illegally collecting fees more than what is prescribed for delayed registration of marriages;^[37][25] when several violations or disregard of regulations governing the collection of government funds were committed;^[38][26] and when the employee arrogated unto herself responsibilities that were clearly beyond her given duties.^[39][27] The common denominator in these cases was the employee’s propensity to ignore the rules as clearly manifested by his or her actions.

Under the circumstances of the present case, we do not see the type of open defiance and disregard of GSIS rules that the CSC observed.  In fact, the CSC’s findings on the petitioner’s actions prior to the approval of the loans negate the presence of any intent on the petitioner’s part to deliberately defy the policy of the GSIS. First, GSIS branch managers have been granted in the past the authority to approve loan applications beyond the prescribed requirements of GSIS; second, there was a customary lenient practice in the approval of loans exercised by some branch managers notwithstanding the existing GSIS policy; and third, the petitioner first sought the approval of his immediate supervisor before acting on the loan applications. These circumstances run counter to the characteristic flagrant disregard of the rules that grave misconduct requires. 

 Thus, the petitioner’s liability under the given facts only involves simple misconduct. As Branch Manager of the GSIS Naga Field Office, he is presumed to know all existing policies, guidelines and procedures in carrying out the agency’s mandate in the area.  By  approving the loan applications of eight GSIS Naga Field Office employees who did not fully meet the required qualifications, he committed a serious lapse of judgment sufficient to hold him liable for simple misconduct.

The Revised Uniform Rules of the Civil Service (Civil Service Rules) classifies simple misconduct as a less grave offense.  Under Section 52(B) (2), Rule IV of the Civil Service Rules, the commission of simple misconduct is penalized by suspension for one (1) month and one (1) day to six (6) months for the first offense, and dismissal from the service for the second offense. While records show that this is not the petitioner’s first offense as he was previously suspended for one (1) year for neglect of duty, we believe that his dismissal would be disproportionate to the nature and effect of the transgression he committed as the GSIS did not suffer any prejudice through the loans he extended; these loans were for GSIS employees and were duly paid for. Thus, for his second simple misconduct, we impose on the petitioner the penalty of suspension from the lapse of his preventive suspension by GSIS up to the finality of this Decision.^[40][28]

WHEREFORE, premises considered, we PARTIALLY GRANT the petition for review on certiorari and MODIFY the assailed decision and resolution of the Court of Appeals. Petitioner Monico K. Imperial, Jr. is found GUILTY of SIMPLE MISCONDUCT and is hereby SUSPENDED from the time the preventive suspension that GSIS imposed lapsed, up to the finality of this Decision. 

          SO ORDERED.

                                                ARTURO D. BRION

                                                Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

                                                  (On Leave)

MARIA LOURDES P. A. SERENO                        BIENVENIDO L. REYES

         Associate Justice                                               Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

                                                RENATO C. CORONA

                                                Chief Justice