LEGAL NOTE 0050: WHAT IS GROSS IGNORANCE OF THE LAW?

SOURCE: ATTY. RAFAEL T. MARTINEZ, AND SPOUSES DAN AND EDNA REYES VS. JUDGE GRACE GLICERIA F. DE VERA, PRESIDING JUDGE, MUNICIPAL TRIAL COURT IN CITIES, SAN CARLOS CITY,PANGASINAN (A.M. NO. MTJ-08-1718, 16 MARCH 2011, CARPIO, J.)  SUBJECT: GROSS IGNORANCE OF THE LAW. (BRIEF TITLE: ATTY MARTINEZ ET AL VS. JUDGE DE VERA)

WHAT IS GROSS IGNORANCE OF THE LAW?

To constitute gross ignorance of the law, it is not enough that the subject decision, order or actuation of respondent judge in the performance of her official duties is contrary to existing law and jurisprudence but, most importantly, she must be moved by bad faith, fraud, dishonesty or corruption. Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge.²⁹

CAN THE JUDGE MAKE AS AN EXCUSE THE INEFFICIENCY OF HIS COURT PERSONNEL?

NO.

Judge De Vera would do well to keep in mind that “[a] judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity.”³⁰ A judge cannot take refuge behind the inefficiency or mismanagement by court personnel. Proper and efficient court management is as much her responsibility. She is the one directly responsible for the proper discharge of her official functions.³¹

CAN FILING AN ADMINISTRATIVE CASE AGAINST THE JUDGE A REMEDY TO CORRECT  AN ERRONEOUS ORDER OR DECISION?

NO.

Complainants should also bear in mind that an administrative complaint is not the appropriate remedy for every irregular or erroneous order or decision issued by a judge where a judicial remedy is available, such as a motion for reconsideration, an appeal, or a petition for certiorari. Disciplinary proceedings against a judge are not complementary or suppletory to, nor a substitute for these judicial remedies whether ordinary or extraordinary. For, obviously, if subsequent developments prove the judge’s challenged act to be correct, there would be no occasion to proceed against her at all. Besides, to hold a judge administratively accountable for every erroneous ruling or decision rendered, assuming she has erred, would be nothing short of harassment and would make her position doubly unbearable.³²

* Designated additional member per Special Order No. 933 dated 24 January 2011.

1 Rollo, pp. 609-611.

2 Id. at 1-6.

3 Id. at 112.

4 Id. at 114-116.

5 Id. at 196-203.

6 Id. at 210-265.

7 Id. at 473-506.

8 Now Supreme Court Justice.

9 Rollo, p. 612.

10 Id. at 628.

11 Id. at 639-743.

12 Id. at 1528.

13 Id. at 1529-1538.

14 Id. at 1553-1558.

15 Id. at 1677-1706.

16 Id. at 1688.

17 Id. at 1689-1690.

18 Id. at 1597-1598.

19 Id. at 1712-1713.

20 Under Chapter VII, D.2 of the 2002 Revised Manual for Clerks of Court, Clerk III Soriano had the following functions:

2.1.12.1. Receives and dockets cases filed with the Court;

2.1.12.2. Receives and records all pleadings, documents and communications pertaining to the Court;

2.1.12.3. Refers to the Clerk of Court or Branch Clerk of Court all cases, pleadings, documents and communications received;

2.1.12.4. Takes charge of all mail matters and maintains a systematic filing of criminal, civil, special civil actions, land registration and administrative cases;

2.1.12.5. Maintains and keeps custody of record books on pending cases, record book on disposed cases, books on appealed cases;

2.1.12.6. Checks and verifies in the docket book applications for clearances and certifications;

2.1.12.7. Prepares weekly reports to the court on the status of individual cases;

2.1.12.8. Checks and reviews exhibits and other documents to be attached to records on appeal;

2.1.12.9. Keeps record book on warrants of arrest issued, record book on accused persons who are at-large, and record book on judgment against bail bonds;

2.1.12.10. Prepares subpoenas, notices, processes, and communications for the signature of the Judge and/or the Clerk of Court;

2.1.12.11. Releases decisions, orders, processes, subpoenas and notices as directed by the Judge or Clerk of Court by delivering them in addressed envelopes and with return cards to the process server for service or mailing; and

2.1.12.12. Performs other duties that may be assigned to him.

21 Rollo, pp. 1714-1716.

22 Id. at 1719-1720.

23 Id. at 1725-1727.

24 Id. at 1730-1732.

25 Id. at 1731-1732.

26 Id. at 1529-1534.

27 Id. at 1529-1531.

28 Rule 3.08, Code of Judicial Conduct.

29 Lumbos v. Baliguat, A.M. No. MTJ-06-1641, 27 July 2006, 496 SCRA 556, 573 (citations omitted).

30 Rule 3.09, Code of Judicial Conduct.

31 Nidua v. Lazaro, A.M. No. R-465 MTJ, 29 June 1989, 174 SCRA 581, 586.

32 De Vega v. Asdala, A.M. No. RTJ-06-1997, 23 October 2006, 505 SCRA 1, 5 citing De Guzman v. Pamintuan, A.M. No. RTJ-02-1736, 26 June 2003, 405 SCRA 22.

LEGAL NOTE 0050: DIRECT CONTEMPT; INDIRECT CONTEMPT AND SUSPENSION IN LAW PRACTICE.

SOURCE: ALEN ROSS RODRIGUEZ AND REGIDOR TULALI VS. THE HON. BIENVENIDO BLANCAFLOR, IN HIS CAPACITY AS THE ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF PALAWAN, BRANCH 52, ANDPEOPLE OF THE PHILIPPINES (G.R. NO.  190171, 14 MARCH 2011, MENDOZA, J.) (BRIEF TITLE: RODRIGUEZ ET AL. VS. JUDGE BLANCAFLOR).

THE CASE

WHILE JUDGE BLANCAFLOR WAS HANDLING AN ARSON CASE. AN ADMINISTRATIVE CASE WAS FILED AGAINST HIS  DRIVER AWAYAN BY PROVINCIAL PROSECUTOR RODRIGUEZ ON THE GROUND THAT HE WAS INVOLVED IN BRIBERY TO SECURE ACQUITAL OF ACCUSED AMI IN THE ARSON CASE. A DAY BEFORE PROMULGATION, TRIAL FISCAL TULALI FILED EX PARTE MANIFESTATION WITHDRAWING HIS APPEARANCE TO AVOID ANY SUSPICION OF COLLUSION.  HE ATTACHED TO HIS MANIFESTATION A COPY OF THE ADMINISTRATIVE COMPLAINT AGAINST AWAYAN. JUDGE BLANCAFLOR ACQUITTED ACCUSED AMI. THE ADMINISTRATIVE CASE AGAINST CAWAYAN WAS WITHDRAWN. PERHAPS THINKING THAT THE FILING OF THE EX-PARTE MANIFESTATION BY TULALI AND THE FILING OF THE ADMINISTRATIVE CASE AGAINST HIS DRIVER WERE INTENDED TO SMEAR HIM, JUDGE BLANCAFLOR INTERVIEWED SEVERAL WITNESSES. TULALI WAS INTERVIEWED ALSO. RODRIGUES WAS SUMMONED. RODRIGUEZ FILED MOTION ASKING CLARIFICATION AS TO WHY THE JUDGE WAS CONDUCTING INQUIRIES. JUDGE BLANCAFLOR THEN INFORMED THE PETITIONERS THAT HE WAS PROCEEDING AGAINST THEM FOR DIRECT CONTEMPT AND VIOLATION OF THEIR OATH OF OFFICE ON THE BASIS OF TULALI’S EX-PARTE MANIFESTATION. AFTER PETITIONERS  SUBMITTED THEIR POSITION PAPERS JUDGE BLANCAFLOR ISSUED A DECISION FINDING THEM GUILTY OF DIRECT CONTEMPT AND FINED THEM P100,000.00 EACH AND SUSPENDED THEM FROM PRACTICE OF LAW INDEFINITELY. ALSO THEY HAVE TO MAKE PUBLIC APOLOGY UNDER PAIN OF ARREST.

WAS THE DECISION OF THE JUDGE CORRECT?

NO. THE FINDINGS OF THE JUDGE HAVE NO FACTUAL AND LEGAL BASIS. GRANTING THAT THERE WAS DIRECT CONTEMPT. THE PENALTY WAS NOT IN ACCORD WITH THE RULES. CONTEMPT AND SUSPENSION ARE DIFFERENT PROCEEDINGS AND MUST BE SEPARATELY CONDUCTED. AND THE GROUND FOR SUSPENSION IS NOT AMONG THE GROUNDS PROVIDED FOR UNDER THE RULES.

WHAT IS THE POWER TO PUNISH A PERSON IN CONTEMPT?

IT IS A POWER INHERENT IN ALL COURTS. ITS PURPOSE IS TO PRESERVE ORDER IN JUDICIAL PROCEEDINGS AND TO UPHOLD THE ORDERLY ADMINISTRATION OF JUSTICE.

HOW WILL JUDGES EXERCISE SUCH POWER?

THEY MUST EXERCISE SUCH POWER JUDICIOUSLY AND SPARINGLY, WITH UTMOST RESTRAINT, AND WITH THE END IN VIEW OF UTILIZING THE SAME FOR CORRECTION AND PRESERVATION OF THE DIGNITY OF THE COURT.

SUCH POWER MUST BE EXERCISED ON THE PRESERVATIVE, NOT THE VINDICTIVE PRINCIPLE; AND ON THE CORRECTIVE, NOT THE RETALIATORY IDEA OF PUNISHMENT.^[6]  SUCH POWER, BEING DRASTIC AND EXTRAORDINARY IN ITS NATURE, SHOULD NOT BE RESORTED TO UNLESS NECESSARY IN THE INTEREST OF JUSTICE.^[7]

WHAT IS DIRECT CONTEMPT?

Direct contempt is any misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including:

–                     disrespect toward the court;

–                     offensive personalities toward others;

–                     refusal to be sworn or to answer as a witness;

–                     refusal to subscribe an affidavit or deposition when lawfully required to do so.^[8]

AS APPLIED TO THE CASE HOW DID THE COURT RULE?

Based on the foregoing definition, the act of Tulali in filing the Ex-Parte Manifestation cannot be construed as contumacious within the purview of direct contempt.  It must be recalled that the subject manifestation bore Tulali’s voluntary withdrawal from the arson case to dispel any suspicion of collusion between him and the accused.  Its filing on the day before the promulgation of the decision in the pending criminal case, did not in any way disrupt the proceedings before the court.  Accordingly, he should not be held accountable for his act which was done in good faith and without malice.

Neither should Rodriguez be liable for direct contempt as he had no knowledge of, or participation in, the preparation and filing of the subject manifestation.  It was signed and filed by Tulali alone in his capacity as the trial prosecutor in the arson case.  The attached complaint against Awayan was filed with the Office of the Palawan Governor, and  not with the RTC.  

Apparently, Judge Blancaflor’s conclusion, that the subject manifestation containing derogatory matters was purposely filed to discredit the administration of justice in court, is unfounded and without basis.  There being no factual or legal basis for the charge of direct contempt, it is clear that Judge Blancaflor gravely abused his discretion in finding petitioners guilty as charged.

Such grave abuse of authority is likewise manifested from the penalty imposed on the petitioners.  Under Section 1, Rule 71 of the Revised Rules of Court, direct contempt before the RTC or a court of equivalent or higher rank is punishable by a fine not exceeding P2,000.00 or imprisonment not exceeding ten (10) days, or both. 

The penalty of indefinite suspension from the practice of law and to pay a fine of P100,000.00 each with the additional order to issue a public apology to the Court under pain of arrest, is evidently unreasonable, excessive and outside the bounds of the law.

PETITIONERS FAULT THE JUDGE FOR NON-OBSERVANCE OF DUE PROCESS IN THE CONTEMPT CASE BECAUSE  NO HEARINGS WERE CONDUCTED AND THEY WERE NOT GIVEN THE OPPORTUNITY TO CONFRONT WITNESSES. ARE PETITIONERS CORRECT?

NO.

It must be emphasized that direct contempt is adjudged and punished summarily pursuant to Section 1, Rule 71 of the Rules.  Hence, hearings and opportunity to confront witnesses are absolutely unnecessary.        

WAS THE ALLEGED VILIFICATION CAMPAIGN DIRECT CONTEMPT?

NO.  

At most, it may constitute indirect contempt, as correctly concluded by the OSG.  For indirect contempt citation to prosper, however, the requirements under Sections 3 and 4, Rule 71 of the Rules must be satisfied, to wit:

Sec. 3.  Indirect contempt to be punished after charge and hearing. – After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

x x x

(d)       any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

                        x x x.  

Sec. 4. How proceedings commenced. — Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.

IF IT WAS INDIRECT CONTEMPT WAS THERE A PROPER PROCEEDING?

NONE.

In the present case, Judge Blancaflor failed to observe the elementary procedure which requires written charge and due hearing.  There was no order issued to petitioners. Neither was there any written or formal charge filed against them.  In fact, Rodriguez only learned of the contempt proceedings upon his receipt of the July 30, 2009 Order, requiring him to appear before the Court in order to clarify certain matters contained in the said order.  Tulali, on the other hand, only learned of the proceedings when he was ordered to submit his compliance to explain how he came in possession of the administrative complaint against Awayan. 

BUT PETITIONERS WERE AFFORDED THE OPPORTUNITY TO FILE POSITION PAPERS. WAS DUE PROCESS OBSERVED?

NO.

The fact that petitioners were afforded the opportunity to file their appropriate pleadings is not sufficient as the proceedings ex-parte to hear the witnesses’ testimonies had already been completed.

WAS THE JUDGE IMPARTIAL?

NO.

In the course of his investigation, Judge Blancaflor showed that he no longer had the cold impartiality expected of a magistrate.  He had clearly prejudged petitioners as manifested in the questions propounded in his July 30, 2009 Order, as follows:

a.      Your [petitioner Rodriguez’s] participation, if any, in the filing of the ex-parte manifestation by Prosecutor Tulali together with the attachment of your letter to Gov. Joel T. Reyes dated May 8, 2009 filed on June 29, 2009 with the Clerk of Court, Branch 52, Regional Trial Court, Palawan;

b.  Whether or not the letter was received and read by Gov. Joel T. Reyes, if you know, and if so what was the official action thereon;

c.       Before Randy Awayan was terminated on June 30, 2009 was he allowed to answer the charges against him, i.e., calling him bag man and facilitator and Ernesto Fernandez, calling him “extortionist.”

Aside from the allegations of Salam Ami, any other evidentiary basis for your conclusion that Ernesto Fernandez was an extortionist and that Awayan was a bag man and facilitator;

What was your role in obtaining the release of accused Rolly Ami from the City Jail without permission from the Court on June 29, 2009 at 2:00 0’clock in the afternoon and having been interviewed in the Office of the Provincial Prosecutor (c/o Prosecutor Tulali) and how long was Rolly Ami interviewed?

d.      Rolly Ami is publicly known as illiterate (cannot read or write) but he was made to sign affidavits in the absence of his lawyer on June 29, 2009 at 2:00 o’clock in the afternoon, why?

e.      Rolly Ami was fetched upon his release by SPO4 Efren Guinto, a close associate of yours, and directly went to the Palawan Pawnshop to pawn expensive jewelry (watch and ring), why?

What is your participation in the media coverage Re: VILIFICATION CAMPAIGN of the Judge of Branch 52 RTC-Palawan from July 1 to 10, 2009.  Do you recognize that as a member of the Bar and as an officer of the Court, pursuant to the rules of judicial ethics and your oath of office as a lawyer, your loyalty and fidelity is primarily to the Court?  Do you still recognize this duty and obligation?^[9]

Indeed, Judge Blancaflor failed to conform to the standard of honesty and impartiality required of judges as mandated under Canon 3 of the Code of Judicial Conduct.

As a public servant, a judge should perform his duties in accordance with the dictates of his conscience and the light that God has given him.  A judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the performance of his duties. He should always bear in mind that the power of the court to punish for contempt should be exercised for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but for the functions that they exercise.^[10]

CAN CONTEMPT AND SUSPENSION PROCEEDINGS BE CONDUCTED IN ONE PROCEEDING?

NO.

Contempt and suspension proceedings are supposed to be separate and distinct.  They have different objects and purposes for which different procedures have been established.  Judge Blancaflor should have conducted separate proceedings.  As held in the case of People v. Godoy,^[11] thus:

A contempt proceeding for misbehavior in court is designed to vindicate the authority of the court; on the other hand, the object of a disciplinary proceeding is to deal with the fitness of the court’s officer to continue in that office, to preserve and protect the court and the public from the official ministrations of persons unfit or unworthy to hold such office.  The principal purpose of the exercise of the power to cite for contempt is to safeguard the functions of the court and should thus be used sparingly on a preservative and not, on the vindictive principle.  The principal purpose of the exercise of disciplinary authority by the Supreme Court is to assure respect for orders of such court by attorneys who, as much as judges, are responsible for the orderly administration of justice.

x x x.  It has likewise been the rule that a notice to a lawyer to show cause why he should not be punished for contempt cannot be considered as a notice to show cause why he should not be suspended from the practice of law, considering that they have distinct objects and for each of them a different procedure is established. Contempt of court is governed by the procedures laid down under Rule 71 of the Rules of Court, whereas disciplinary actions in the practice of law are governed by file 138 and 139 thereof.

Thus, it was grossly improper for Judge Blancaflor to consider his July 30, 2009 Order on the contempt charge as the notice required in the disciplinary proceedings suspending petitioners from the practice of law.                                                                                                                                                                                 

DOES A JUDGE HAVE POWER TO SUSPEND AN ATTORNEY?    

YES.

This Court is not unmindful of a judge’s power to suspend an attorney from practice for just cause pursuant to Section 28, Rule 138 of the Revised Rules of Court. 

WHAT IS THE REQUIREMENTS OF DUE PROCESS IN THE REMOVAL OR SUSPENSION OF AN ATTORNEY?

HE MUST HAVE FULL OPPORTUNITY TO ANSWER THE CHARGES, TO PRODUCE WITNESSES AND TO BE HEARD.

Judge Blancaflor, however, must be reminded that the requirements of due process must be complied with, as mandated under Section 30, Rule 138 of the same Rules which specifically provides, viz:

          Sec. 30.  Attorney to be heard before removal or suspension. – No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel.  But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.

Indeed, a lawyer may be disbarred or suspended for any misconduct showing any fault or deficiency in his moral character, honesty, probity or good demeanor.  His guilt, however, cannot be presumed.  It must indicate the dubious character of the acts done, as well as the motivation thereof. Furthermore, a disbarred lawyer must have been given full opportunity upon reasonable notice to answer the charges against him, produce witnesses in his own behalf, and to be heard by himself and counsel.^[12] 

AS APPLIED TO THE CASE, WAS DUE PROCESS OBSERVED?

NO.

In the case at bench, there was no prior and separate notice issued to petitioners setting forth the facts constituting the misconduct and requiring them, within a specified period from receipt thereof, to show cause why they should not be suspended from the practice of their profession.  Neither were they given full opportunity to defend themselves, to produce evidence on their behalf and to be heard by themselves and counsel.  Undoubtedly, the suspension proceedings against petitioners are null and void, having violated their right to due process.

WHAT ARE THE GROUNDS FOR DISBARMENT OR SUSPENSION OF  A LAWYER?

Section 27, Rule 138 of the Rules enumerates the grounds for disbarment or suspension of a member of the Bar from his office as attorney, to wit: (1) deceit, (2) malpractice, (3) gross misconduct in office, (4) grossly immoral conduct, (5) conviction of a crime involving moral turpitude, (6) violation of the lawyer’s oath, (7) willful disobedience of any lawful order of a superior court, and for (8) willfully appearing as an attorney for a party without authority to do so.  

WAS THE BASIS OF THE JUDGE IN SUSPENDING THE PETITIONERS LEGAL?

NO.

Judge Blancaflor failed to show that the suspension was for any of the foregoing grounds.   

WHAT IS THE REMEDY IF THE JUDGE IN A CONTEMPT PROCEEDING COMMITS GRAVE ABUSE OF DISCRETION BY ISSUING AN ORDER WITHOUT LEGAL BASIS OR IN VIOLATION OF DUE PROCESS?

PROHIBITION.

In fine, having established that Judge Blancaflor committed grave abuse of discretion amounting to lack or excess of jurisdiction, petitioners are entitled to the remedy of prohibition under Section 2, Rule 71 of the Rules on Contempt which provides: 

SEC. 2. Remedy therefrom. – The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him.

Accordingly, an order of direct contempt is not immediately executory or enforceable. The contemnor must be afforded a reasonable remedy to extricate or purge himself of the contempt. Where the person adjudged in direct contempt by any court avails of the remedy of certiorari or prohibition, the execution of the judgment shall be suspended pending resolution of such petition provided the contemnor files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him.^[13]

^* Designated as additional member in lieu of Associate Justice Antonio Eduardo B. Nachura, per Special Order No. 933 dated January 24, 2011.

^[1] Annex “A” of Petition, rollo, pp. 41-46.

^[2] Id. at 46.

^[3] Id. at 47.

^[4] Id. at 11.

^[5] Id. at 67.

^[6] Baculi v. Belen, A.M. No. RTJ-09-2176, April 20, 2009, 586 SCRA 69, 80.

^[7]Bank of Philippine Island v. Labor Arbiter Roderick Joseph Calanza, et al., G.R. No. 180699, October 13, 2010, citing Lu Ym v. Mahinay, G.R. No. 169476, June 16, 2006, 491 SCRA 253.

^[8] Section 1, Rule 71 of the Revised Rules of Court.

^[9]  Rollo, pp. 8-9.

^[10]Baculi v. Belen, A.M. No. RTJ-09-2176, April 20, 2009, 586 SCRA 69, 80, citing Nazareno v. Barnes, 220 Phil. 451, 463 (1985), citing Austria v. Masaquel, 127 Phil. 677, 690 (1967).

^[11] 312 Phil. 977, 1032, 1033 (1995).

^[12] Re: Administrative Case No. 44 of the Regional Trial Court, Branch IV, Tagbilaran City, Against Atty. Samuel C. Occena, 433 Phil. 138, 154 (2002).

^[13]Tiongco v. Salao, A.M. No. RTJ-06-2009, July 27, 2006, 496 SCRA 575, 583, citing Oclarit v. Paderanga, 403 Phil 146, 152 (2001).

DECISION OF THE OFFICE OF THE PRESIDENT ON THE ADMINISTRATIVE CASE AGAINST DEPUTY OMBUDSMAN EMILIO GONZALEZ, MARCH 31, 2011

Office of the President

of the Philippines

Malañang

IN RE: ADMINISTRATIVE CASE

AGAINST EMILIO A. GONZALEZ III,

DEPUTY OMBUDSMAN, OFFICE OF THE OMBUDSMAN

OP Case No. 10-J-460

DECISION

The constitution mandates that “public office is a public trust.”   Public officers are enjoined to be at all times accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, and act with patriotism and justice. (Section 1, Article XI, 1987 Constitution as quoted in several cases such as Civil Service Commission vs. Cortez, G.R. No. 155732, June 3, 2004 and Villar vs. Angeles, AM. No. P-062276, February 5, 2006)

Antecedents Facts and Statement of the Case

On 23 August 2010, a dismissed police officer, former Manila Police District Police Senior Inspector (Captain) Rolando Del Rosario Mendoza, hijacked a tourist bus, and held hostage a group of twenty-one foreign tourists and four Filipino tour assistants.

Mendoza was a bemedaled police official who served the Philippine National Police (PNP) for thirty years prior to his termination ordered by the Office of the Ombudsman.  For the liberty of his hostages, Mendoza’s lone demand was his reinstatement in service.

Regrettably, the long-drawn drama ended with, the murder of eight, the injury of seven and the demise of Mendoza, a surly scorn for the institutions of a representative government.

This Office, perforce, mandated Department of Justice (DOJ) Secretary Leila De Lima and Department of the Interior and Local Government (DILG) Secretary Jesse Robredo to conduct a thorough investigation of the incident, and recommend, among others, the appropriate administrative and criminal charges against culpable individuals, public officers or otherwise.

Pursuant to his mandate, Joint Department Order NO. 01-2010 was subsequently issued, creating the Incident Investigation and Review Committee (IIRC), which was chaired by Secretary De Lima and vice-chaired by Secretary Robredo.  The IIRC conducted a series of public hearings and executive sessions, and invited several resource persons for the purpose (Investigation and Review Committee, First Report, 16 September 2010, pp. 6-7).

Ombudsman Merceditas Gutierrez and respondent Deputy Ombudsman for the Military and Other Law Enforcement Agencies Emilio Gonzalez III were duly sent invitations to take part in the proceedings (Id., page 7). Both declined, however, interposing that the Office of the Ombudsman is an independent constitutional body. (Id.).

In its First Report dated 16 September 2010, nonetheless, the IIRC made determinations based on pertinent testimonial and documentary evidence with respect to the accountability of respondent Deputy Ombudsman Gonzalez, which can be summarized as follows:

Deputy Ombudsman Gonzalez committed serious and inexcusable negligence and gross violation of their own rules of procedure by allowing Mendoza’s motion for reconsideration to languish for nine (9) long months without any justification, in violation of the Ombudsman prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission.  The inaction is gross, considering that there was no opposition thereto. The prolonged inaction precipitated the desperate resort to hostage-taking.

Moreso, Mendoza’s demand for immediate resolution of his motion for reconsideration is not without legal and compelling basis considering the following:

a) PSI Mendoza and four policemen were investigated by the Ombudsman involving a case for alleged robbery (extortion), grave threats and physical injuries amounting to grave misconduct allegedly committed against a certain Christian Kalaw. The same case, however, was previously dismissed by the Manila city Prosecutors Office  for lack of probable cause and by the PNP-NCR Internal Affairs Service  for failure of the complainant (Christian Kalaw) to submit evidence and prosecute the case  On the other hand, the case which was filed much ahead by Mendoza et al. against Christian Kalaw involving the same incident, was given due course by the City Prosecutors Office.

b) The Ombudsman exercised jurisdiction over the case based on a letter issued motu proprio by Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR – without citing any reason – to endorse the case against Mendoza and the arresting policemen to his office for administrative adjudication. He also caused the docketing of the case and named Atty. Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the nominal complainant, in lieu of Christian Kalaw who did not even affirm his complaint-affidavit b the before the Ombudsman or submit any position paper as required.

c) Mendoza, after serving preventive suspen-sion, was adjudged liable for grave mis-conduct based on the sole and uncor-roborated complaint-affidavit of Christian Kalaw.

d) Despite the pending and unresolved motion for reconsideration, the judgment of dismiss-sal was enforced, thereby abruptly ending Mendoza’s 30 years of service in the PNP with forfeiture of all his benefits.

Deputy Ombudsman Gonzalez likewise committed serious disregard of due process, manifest injustice and oppression in failing to provisionally suspend the further implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved motion for reconsideration.

For as long as his motion for reconsideration remained pending and unresolved, Mendoza was also effectively deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of dismissal before the higher courts and seek a temporary restraining order to prevent the further execution thereof.

When they received Mendoza’s demand for the release of the final order resolving his motion for reconsideration, they should have performed their duty by resolving the reconsideration that same day since it was already pending for nine months and the prescribed period for its resolution is only five days.  Or they should have acted decisively by issuing an order provisionally suspending the further enforcement of the judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking.

But instead of acting decisively, they merely offered to review a pending motion for review of the case, thereby prolonging their inaction and aggravating the situation.  As expected, Mendoza – who previously berated Deputy Gonzalez for allegedly demanding Php 150, 000 in exchange for favorably resolving the motion for reconsideration – rejected and branded as trash (“basura”) the Ombudsman letter promising review, triggering the collapse of the negotiation. (Id., pp. 75-77).

Based on the foregoing, the IIRC recommended with respect to Deputy Ombudsman Gonzalez, that its findings be referred to this Office for further determination of possible administrative offenses, and for the initiation of the proper administrative proceedings (Id., page 81).

Upon a review of the findings and recommendation of the IIRC, an administrative charge was formally instituted against Deputy Ombudsman Gonzalez.

The charge states, thus:

“FORMAL CHARGE

Finding a prima face case as contained in the Incident Investigation and Review Committee Report (IIRC) dated 17 September 2010, particularly pages 73-75 thereof, this Office hereby formally charge Deputy Ombudsman Emilio A. Gonzalez III, Office of the Ombudsman, a presidential appointee, for Gross Neglect of Duty and /or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of the Omnibus Rules Implementing Book V of E.O. 292 and other pertinent Civil Service Laws, rules and regulation and for Misconduct in Office under Section o3 of the Anti-graft and Corrupt Practices Act.

In view thereof, respondent is herby directed to submit within seventy-two (72) hours from receipt hereof, his answer under oath to the above-charges, as narrated in said IIRS Report copy which is hereto attached, together with his documentary evidence, if any.  Respondent should state therein whether he elects to have a formal investigation or waives the same.  Respondent is also advised of his right to counsel.

Any Motion to Dismiss, Request for Clarification or Bill of Particulars shall not be entertained by this Office.  Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as such. Failure of respondent to submit his answer within the herein required period shall be considered as a waiver thereof.

SO ORDERED.”

In his Answer dated 4 November 2010, Deputy Ombudsman Gonzalez elected a formal investigation, without waiving his right to question the validity and propriety of the administrative proceedings.

This Office then called a Clarificatory Conference on 8 February 2011.  Despite due notice, however, respondent Deputy Ombudsman failed to appear.

Earlier, respondent submitted an “Objection to proceedings” accusing this office of having made a prejudgment of his case even before a formal investigation has been conducted.  Respondent based his objection on news items that figured in two local tabloids, Abante and Bulgar, on 4 February 2011 that he was already meted out the penalty of one (1) year suspension.

While there was absolutely no truth to the news items in question, and despite a subsequent express retraction by Mr. Raymond Burgos of Abante, in whose column said news items came out, and the Deputy Ombudsman’s own denial published in the same column, the latter chose to snub the clarificatory conference and made no amends therefor.

Respondent Deputy Ombudsman Gonzalez having been given an opportunity to be heard, the case was subsequently submitted for resolution.

The Issues

In his Answer, respondent Deputy Ombudsman contended in his defense that:

(1) This Office does not have the authority nor the jurisdiction to try the instant case, which is cognizable by the Office of the Ombudsman and/or the Sandiganbayan;

(2) There was never gross neglect of duty/inefficiency in the performance of official duties on his part prior to, during and after the hostage-taking incident; and

(3) There was no misconduct in office committed by him as he never demanded a bribe from Mendoza.

The Ruling

A. On the Disciplining Authority of the Office of the President over the Deputy Ombudsman

In his Answer, Respondent Deputy Ombudsman Gonzalez assails the jurisdiction or authority of this Office to exercise disciplinary power over him, asserting that the Office of the President is not a judicial or quasi-judicial body with authority or jurisdiction to charge or try him administratively.

Respondent Deputy Ombudsman contends that it is the Office of the Ombudsman that has the disciplinary authority over him, citing Section 21 of Republic Act No. 6770, otherwise known as the “Ombudsman Act of 1989”, which states:

Sec. 21.  Officials Subject to Disciplinary Authority; Exceptions. – The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporation and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.

Respondent argues that he is not exempt from the disciplinary authority of the Office of the Ombudsman since he is not a member of Congress nor is he removable by impeachment under Section 2, Article XI of the Constitution.

Respondent adds that under Section 15(1) of the Ombudsman Act, it is the Office of the Ombudsman that has the authority to investigate and prosecute any act or omission of any public officer or employee.

Section 15(1) of the Ombudsman Act provides:

“Sec. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

(1)   Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.  It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any stage, form any investigatory agency of government, the investigation of such cases;”

xxx            xxx            xxx

Respondent’s contentions are without merit.

While it may be correct to state that the Ombudsman has disciplinary authority over respondent Deputy Ombudsman pursuant to Section 21 of the Ombudsman Act, it is not correct to say that the President is without any disciplinary power over him.

It is worthy to note that the Ombudsman’s disciplinary power over public officers is not exclusive in nature.  It has been recognized as concurrent with the power vested by law in similarly authorized heads of offices or departments (Vide: Office of the Ombudsman v. Delijero, G.R. 172635, 20 October 2010; Flores v. Montemayor, G.R. no. 170146, 25 August 2010; Office of the Ombudsman v. Beltran, G.R. 168039, 5 June 2009).

Verily, Section 8(2) of the Ombudsman Act itself expressly vests the President with the power to remove a deputy of the Ombudsman, thus:

“Sec. 8. Removal; Filling of Vacancy. –

xxx               xxx                     xxx

(2)   A Deputy, or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process.” [Emphasis supplied]

Since the law expressly authorizes the President to remove a deputy of the Ombudsman for any of the grounds provided for the removal of the Ombudsman, subject to the requirement of due process, it is within the authority and jurisdiction of this Office to have conducted administrative proceedings against respondent Deputy Ombudsman, to determine cause for his administrative culpability, and to impose the penalty of dismissal if the determination warrants the same.

It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his documentary evidence, which opportunity respondent actually availed of.  In the second instance, this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent’s express election of a formal investigation.  Despite due notice, however, respondent Deputy Ombudsman refused to appear for said conference, interposing an objection based on the unfounded notion that this Office has prejudged the instant case.  Respondent having been given actual and reasonable opportunity to explain or defend himself in due course, the requirement of due process has been satisfied.

In a long line of cases, the Supreme Court has held that the essence of due process in administrative proceedings is simply the opportunity to explain one’s side (Catbagan v. Judge Barte, A.M. No. MTJ-02-1452, 6 April 2005; Vide: Office of the Ombudsman vs. Galicia, G.R. No. 167711, 10 October 2008; Civil Service Commission v. CA, G.R. No. 161086, 24 November 2006; Cayago v. Lina, G.R. No. 149539, 19 January 2005; Montemayor v. Bundalian, et al., G.R. No. 149335, 1 July 2003; Ocampo v. Office of the Ombudsman, G.R. No. 114683, 18 January 2000; Audion v. NLRC, G.R. No. 106648, 17 June 1999; Umali v. Guingona, Jr., G.R. No. 131124, 29 March 1999).

Held the Supreme Court, thus:

xxx “The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of.  As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.” (Montemayor v. Bundalian, supra).

Withal, where not expressly provided for by law, the power to remove or discipline may be derived under the doctrine of necessary implication from the power to appoint (C. Cruz, The Law of Public Officers, 2003 Ed., Central Book Supply, Inc., page 223). Otherwise put, the power to appoint carries with it the implied power to remove or to discipline (Aguirre v. De Castro, G.R. No. 127631, 17 December 1999; Vide: DOH v. Camposano, et al., G.R. No., 157684, 27 April 2005; Larin v. Executive Secretary, G.R. No. 112745, 16 October 1997; Bagatsing v. Herrera, G.R. No. L-34952, 25 July 1975).

In the words of the Supreme Court:

“Absent any contrary statutory provision, the power to appoint carries with it the power to remove or to discipline. Since respondent was appointed by the regional director of DECS, she may be disciplined or removed by the latter pursuant to law” (Aguirre, supra).  [Emphasis supplied]

Under the Constitution and the Ombudsman Act, the power to appoint the deputies of the Ombudsman is expressly vested in the President.

Section 9, Article XI of the constitution provides thus:

“Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for each vacancy thereafter.  Such appointments shall require no confirmation.  All vacancies shall be filled within three months after they occur.”

Similarly, Section 4 of the Ombudsman Act states:

“Sec. 4. Appointment. – The Ombudsman and his Deputies, including the Special Prosecutor, shall be appointed by the President from a list of at least twenty one (21) nominees prepared by the Judicial and Bar Council, and from a list of three (3) nominees for each vacancy thereafter, which shall be filled within three (3) months after is occurs, each of which list shall be published in a newspaper of general circulation.”

xxx                      xxx                        xxx

Notably, no provision in the Constitution or the Ombudsman Act effectively enjoins the President from exercising the power to remove or discipline a deputy of the Ombudsman as the latter’s appointing authority.

This implied power of the President may be starkly contrasted with his lack of the same power with respect to the Ombudsman, or the members of the Supreme Court, or the judges of inferior courts, whom the President is vested the express authority to appoint.  With respect to the Ombudsman and the members of the Supreme Court, Section 2, article XI of the Constitution expressly provides that said public officers may be removed only through impeachment. With respect to judges of inferior courts Section 11, Article VIII of the Constitution expressly provides that the Supreme Court shall have the power to remove and discipline them.

B. On the Charge of Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duties

Upon a consideration of the First Report, the evidence and allegations of respondent Deputy Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed on 5 November 2009, or within five (5) days from Mendoza’s receipt of a copy of respondent’s Decision on 30 October 2009, amounted to gross neglect of duty and/or inefficiency in the performance of official duty.

As correctly observed by the IIRC, the delay in the resolution of Mendoza’s Motion for Reconsideration that spanned nine (9) long months constituted a flagrant disregard of the Office of the Ombudsman’s own Rules of Procedure.  The Rules require that the resolution of a motion for reconsideration be made within a period of only five (5) days from the submission thereof (Section 8, Article III, Office of the Ombudsman Administrative Order No. 17, series of 2003).

As further correctly observed by the IIRC, the delay in the resolution of Mendoza’s motion was all the more unjustified since no opposition to Mendoza’s motion for reconsideration was filed whatsoever.

In more than a single occasion, the Supreme Court has considered inferior court judges’ failure to resolve motions or pending incidents within the reglementary period prescribed by law as gross inefficiency (Vide: Perez v. Concepcion, 378 Phil. 918; Dela Cruz, et.al v. Vallarta, A.M. No. MTJ-04-1531, 6 March 2007; Arcenas v. Avelino, A.M. No. MTJ-06-1642, 15 June 2007). By analogy, this Office considers the inordinate delay of nine (9) months as constituting gross inefficiency in the performance of official duty.  After all, the protection of the parties’ right to a speedy disposition of cases is a common consideration (Re: Cases Submitted for Decision Before Hon. Meliton G. Emuslan, Former Judge, Regional Trial Court, Branch 47, Urdaneta City, Pangasinan, Resolution A.M. No. RTJ-10-2226, March 22, 2010).

In his Answer, respondent Deputy Ombudsman alleged that the resolution of Mendoza’s Motion was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis L. Garcia on 14 December 2009.  After almost four (4) months or on 5 April 2010, GIPO Garcia released the draft Order resolving the Motion.  Respondent alleged that his office received the draft of the resolution on 27 April 2010, and that on 7 May 2010 he completed his review of the draft, approved the same, and transmitted to the Ombudsman for final approval.

Attached to respondent’s Answer were copies of the receiving books evidencing receipt of Mendoza’s Motion by the Criminal Investigation, Prosecution and Administrative Adjudication Bureau (CIPAAB) of the Ombudsman (Annex “E”), GIPO Garcia’s receipt thereof on 14 December 2009 (Annex “F”), receipt of the draft Order resolving the Motion by respondent on 27 April 2010 (Annex “H”), receipt of the Military and Other Law Enforcement Offices (MOLEO) Records Section on 7 May 2010 after respondent allegedly acted on the resolution (Annex “I”), and the alleged receipt of the said Order by the Central Records Division of the Office of the Ombudsman on 19 May 2010 or 12 days later (Annex “J”).

Respondent contended that considering the number of approvals that the resolution on Mendoza’s Motion had to undergo, the period that elapsed could not be considered vexatious, capricious, or oppressive.  Respondent maintained that there was no prolonged inaction on his part since he acted on the draft Order within nine (9) calendars days from his receipt thereof.

What respondent Deputy Ombudsman conveniently failed to acknowledge is the fact that when he acted on the draft resolution of Mendoza’s motion, said motion had already languished for a period of almost five (5) months in his subordinate’s hands.  He should have acted with more dispatch, therefore, in resolving the Motion.

Moreover, in view of the fact that respondent Deputy Ombudsman has caused the enforcement of Mendoza’s dismissal pending resolution of the latter’s Motion, utmost responsibility and fundamental considerations of justice should have impelled respondent to diligently supervise his subordinate and apprise the Ombudsman of the necessity to expedite their respective official actions to avoid undue prejudice on Mendoza, an erstwhile decorated police officer who served the PNP for thirty (30) years.

As correctly pointed out by the IIRC, this Office notes that as long as his Motion for Reconsideration remained pending and unresolved, Mendoza was also effectively deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of dismissal before the higher courts and seek a temporary restraining order to prevent the further execution thereof.

Gross neglect of duty refers to negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences, insofar as other persons may be affected.  It is the omission of that care which even inattentive and thoughtless men never fail to give to their own property.  In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable (Golangco v. Fung, G.R. no. 147640, 16 October 2006).

Under the peculiar circumstances involving the disciplinary case of Mendoza, especially including the fact that the penalty of dismissal was enforced even before Mendoza could receive a copy of the February 16, 2009 Decision, respondent Deputy Ombudsman’s palpable lack of care to supervise his subordinate to act with more dispatch in his review of the resolution of Mendoza’s Motion for Reconsideration, and to apprise the Ombudsman of the delay which said resolution had already suffered amount to a conscious indifference to the consequences of the delay to the person (s) affected thereby.

This conscious indifference was highlighted when Mendoza demanded for a resolution of his case during the fateful high-jacking incident.  The following points raised by the IIRC are apropos:

“When the two Ombudsman officials [Gutierrez and Gonzalez] received Mendoza’s demand for the release of the final order resolving his motion for reconsideration, they should have performed their duty by resolving the reconsideration that same day since it was already pending for nine months and the prescribed period for its resolution is only five days.  Or if they cannot resolve it that same day, then they should have acted decisively issuing an order provisionally suspending the further enforcement of the judgment of dismissal subject to revocation once the reconsideration [sic] is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may have ended peacefully, without necessarily compromising the integrity of the institution. After all, as relayed to the negotiators, Mendoza did express willingness to take full responsibility for the hostage-taking if his demand for release of the final decision or reinstatement was met.

But instead of acting decisively, the two Ombudsman officials merely offered to review a pending motion for review of the case, thereby prolonging their inaction and aggravating the situation. xxx xxx xxx”

For the reasons stated above, this Office finds respondent Deputy Ombudsman guilty of gross neglect of duty.

C. On the Charge of Gross Misconduct

With respect to the charge and findings of the IIRC that respondent may be further held liable for gross misconduct for allegedly demanding from Mendoza the amount of one hundred fifty thousand pesos (P150,000.00), there is substantial evidence to support the same in the light of the circumstances surrounding the incident.  As the Supreme Court has taught us, only substantial evidence, that is, that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion is necessary in administrative cases (Vide: Adap v. Comelec, 516 SCRA 309).

As admitted by respondent himself in paragraphs 23 and 24 of his Answer, he accommodated the request of Bob Kalaw to transfer the case Mendoza which was then pending with the Philippine National Police-Internal Affairs Service, to the Office of the Ombudsman, explaining this wise:

“24. On 25 June 2008, the father of the complainant, Bob Kalaw, together with Dindo Lucindo, a family friend of the former, came to my office to request that the Office of the Ombudsman take over the case of Christian Kalaw.  They expressed their concern not just about the outcome of Christian Kalaw’s case, but the safety of the latter, considering it wad the wife of then respondent Mendoza who was serving the subpoena from the IAS.”

Apparently, on the strength of his visitor’s bare allegation, respondent, without verifying the same, encroached on the PNP-IAS’ exercise of its primary jurisdiction over the case.  And when the complaint endorsed by the PNP-IAS to the Office of the Ombudsman in July 2008 was resolved in less than seven (7) months based on the sole and uncorroborated complaint-affidavit of the alleged victim who did not even affirm the same, there is reason to believe that respondent Deputy Ombudsman had shown undue interest on the case.  Added to this is the lack of motive on the part of Mendoza to implicate him, and in statements given spontaneously.

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer, and the misconduct is grave if it violates any of the additional elements of corruption, willful intent to violate the law or to disregard established rules (Santos v. Rasalan, 515 SCRA 97; Rodriguez v. Eugenio, 512 SCRA 489).

D. Arbitrary and Tyrannical Exercise of Authority; Betrayal of Public Trust

As hereinabove discussed, the Ombudsman Act expressly empowers the President to remove a deputy of the Ombudsman for any of the grounds for the removal of the Ombudsman.

Section 2, Article XI of the constitution expressly provides for these grounds, to wit:

“Section 2.  The President, the Vice-President, the Members of the Supreme Court, the Members of the constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Betrayal of public trust is a new ground added by the Constitutional Commission as a catch-all ground to cover all manner of offenses unbecoming a public functionary but not punishable by the criminal statutes, like “inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, and obstruction of justice” (Records of the Constitution Commission, Vol. 2, page 22).

Clearly, the gross neglect of duty, gross inefficiency and misconduct committed by respondent Deputy Ombudsman is constitutive of or amounts to a betrayal of the public trust.   Put differently, had respondent Deputy Ombudsman not betrayed the trust of Capt. Mendoza, the latter would not have been compelled to resort to hostage-taking to advance his cause.  This fact cannot be denied as clearly expressed in the handwritten demand posted on the bus  “Release final decision OMB-P-A-090570-A”.

The urgency of resolving the motion on the part of Mendoza is understandable.  To reiterate, the decision dismissing him from the service was implemented even before he could receive a copy of the Decision.   At this point , a great injustice has already been committed as prior thereto, Mendoza could not file a Motion for Reconsideration with the Office of the Ombudsman nor an appeal before the Court of Appeals, and in the pendency thereof seek a temporary restraining order against the implementation  of the Decision.  Consequently, when he got to file his Motion for Reconsideration, the urgency of the matter heightened, as he had long suffered from the effects of the Decision.  These considerations cannot have escaped the respondent Deputy Ombudsman had he been circumspect in the performance of his duties.

Section 1, Article XI of the Constitution sanction, thus:

“Section 1. Public office is a public trust.  Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.”

The provision sums up the high sense of idealism that is expected of every officer of the government (J. Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, 2003 ed., Rex Bookstore, Inc., page 1108). As Justice Malcolm expressed in Cornejo v. Gabriel, G.R. No. L-16887, 17 November 1920, “The basic idea of government in the Philippines as in the United States is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he represents.”

Based on facts substantially established, and measured against the fundamental mandate of his public office to serve the people with utmost responsibility, integrity, loyalty, and efficiency and to act with justice, this Office finds that respondent Deputy Ombudsman Gonzalez’s gross neglect of duty, gross inefficiency and misconduct in office amounted to a betrayal of the public trust reposed in him.

WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzalez III guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and hereby meted out the penalty of DISMISSAL from service.

SO ORDERED.

Done in the City of Manila, this 31st day of March 2011.

Prepared by:

Approved/Disapproved:

(Sgd.) PAQUITO N. OCHOA, JR.

Executive Secretary