FLUJO DE AUTORIZACIÓN

GENTLEMEN,

Quoted hereunder, for your information, is a resolu-tion of the Court En Banc dated May 19, 1988.

GR 79690-79707 (Enrique A. Zaldivar v. The Hon.

Sandiganbayan, et al.) and GR 80578 (Enrique A. Zal-divar v. Hon. Raul M. Gonzales). The Respondent has moved for a reconsideration of our ruling that he is not the Ombudsman but merely a subordinate thereof as Special Prosecutor. The reasons he invoke are insubstantial where they are not irrelevant. The motion must be and is hereby DENIED.

The Court shall deal later with his citation for contempt and meanwhile GRANTS him the 30-day ex-tension he seeks to fi le his comment, with warning that no further extension will be granted. The Court NOTES pending the submission of his said comment, his motion to inhibit the Chief Justice and three other justices. The Court further NOTES the (a) the motion for clarifi cation of the decision of Apr. 27, 1988, dated May 3, 1988 and (b) the manifestation, dated May 6, 1988, both fi led by the Solicitor General. On the motion for the reconsideration

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as well as the supplement thereto, the Court makes the following ruling that should settle this matter once and for all.

The Offi ce of the Tanodbayan, which was formerly held by the respondent, was originally created by PD 1607 pursuant to Article XIII, Section 6, of the 1973 Constitu-tion. It was converted into the Offi ce of the Special Pros-ecutor by Article XI, Section 7, of the 1987 Constitution and allowed to retain only such of its powers as had not been transferred to the Ombudsman. It is this new offi ce as reduced in status by the present charter that is now held by the respondent. The Offi ce of the Ombudsman was directly created by the self-executing provision of Article XI, Section 6, of the present Constitution. No implement-ing legislation was needed to brimplement-ing it into existence, which legally commenced on Feb. 2, 1987, when the charter was ratifi ed. It was recently fi lled by the President with a person other than the respondent. The respondent is not and never has been the Ombudsman under the present Constitution. What is more, it is now the new Ombuds-man who carries the title of Tanodbayan. The clear inten-tion of the Constituinten-tion is to vest the Ombudsman with more authority, prestige and importance and reduce the Special Prosecutor to the rank of a mere subordinate of the former. Obviously, the Special Prosecutor under this set-up cannot claim to be concurrently the Ombudsman and exercise the latter’s powers as this would be a viola-tion of the Constituviola-tion.

The Ombudsman is nominated by the Judicial and Bar Council and appointed by the President of the Phil-ippines without need of confi rmation by the Commission on Appointments. He is among the high offi cials of the government removable only by impeachment and has the same rank as the Chairmen of the Constitutional Commis-sions. The Constitution does not accord the same regard and stature to the Special Prosecutor. Under Section 12 of Article XI of the 1987 Constitution, the principal responsibility of the Ombudsman is “to act promptly on complaints fi led in any form or manner against public

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fi cials or employees of the Government.” For this purpose, he is conferred the specifi c powers mentioned in Section 13, among which are the following: (1) Investigate on his own, or on complaint by any person, any act or omission of any public offi cial, employee, offi ce or agency, when such act or omission appears to be illegal, unjust, improper, or ineffi cient. (2) Direct the offi cer concerned to take ap-propriate action against a public offi cial or employee at fault, and recommend his removal suspension, demotion, fi ne, censure or prosecution, and ensure compliance there-with.

The above powers, even if originally vested in the former Tanodbayan, may no longer be exercised by the re-spondent as Special Prosecutor. Having been transferred to the Ombudsman, they are deemed expressly withdrawn from the Special Prosecutor under Section 7, which plainly says: “Sec. 7. The existing Tanodbayan shall hereafter be known as the Offi ce of the Prosecutor. It shall continue to function and exercise its power as now or, hereafter may be provided by law, except those conferred on the Offi ce of the Ombudsman created under the Constitution.’’

The power of investigation as thus conferred on the Ombudsman covers both administrative and criminal offenses. When the Constitution does not distinguish, the respondent must not distinguish. This is elementary.

Accordingly, the Special Prosecutor cannot claim that he retains the specifi c power of preliminary investigation while conceding the general power of investigation to the Ombudsman. The greater power embraces the lesser.

This too is elementary. What the respondent seems un-able to accept is that he is not even equal to but certainly lower than the Ombudsman. There is nothing personal about this. It is the offi ce that has been demoted. In con-stitutional government, egotism is and should never be considered a source of offi cial power. And neither should expediency. The respondent suggests that as a result of the ruling of this Court withdrawing his powers, many information fi led by him will have to be annulled and

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thousands of criminals will be set free to roam the streets.

This is unfounded exaggeration aimed more at exciting public anxieties than appealing to law and reason.

The Court reiterates that the withdrawal of his pow-ers was made not by it but by the Constitution. Moreover, the respondent is not that indispensable in the scheme of the Republic or even only to the campaign against graft and corruption. It is the height of conceit to say that un-less the respondent is there to protect us, the country will be overrun by scoundrels. In any event, the fact that the informations fi led by the respondent from Feb. 2, 1987, were invalid because they were not authorized by the Ombudsman, is not a jurisdictional defect. The informa-tions could have been challenged in a motion to quash under Rule 117 of the Rules of Court on the ground of lack of authority on the part of the offi cer fi ling the same. If this ground was not invoked, it is deemed waived under Section 8 of the same Rule, which means that the cases can then continue to be tried. Not one of these cases is considered invalidated nor is a single accused entitled to be discharged.

To settle this question categorically, we hereby rule that the decision of this Court in this case shall be given prospective application from Apr. 27, 1988. We adopt this rule to prevent a dislocation of the cases commenced by the Special Prosecutor without authorization and avoid the consequent serious impairment of the administration of our criminal laws, including violations of the Anti-Graft and Corrupt Practices Act.

This is the same principle adopted by the United States Supreme Court in connection with the operation of the Escobedo and Miranda doctrines, which were given prospective application only in Johnson v. New Jersey, 388 U.S. 719. There it was held in part: “At the same time, retroactive application of Escobedo and Miranda would se-riously disrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with

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the previously announced constitutional standards. Prior to Escobedo and Miranda, few States were under any en-forced compulsion on account of local law to grant requests for the assistance of counsel or to advise accused persons of their privilege against self-incrimination. Compare Crooker v. California, 357 U.S., at 448, note 4, 2L ed 2d at 1459 (dissenting opinion). By comparison, Mapp v. Ohio, supra., was already the law in a majority of the States at the time it was rendered, and only six States were im-mediately affected by Griffi n v. California, 380 U.S. 609, 14 L ed 2d 106, 85 S Ct 1229 (1966). See Tehan v. Shott, 382 U.S., at 418, 15L ed 2d at 461. “In light of various con-siderations, we conclude that Escobedo and Miranda, like Mapp. v. Ohio, supra., and Griffi n v. California, supra., should not be applied retroactively.” At the same time, we do not fi nd any persuasive reason to extend Escobedo and Miranda to cases tried before those decisions were announced, even though the cases may still be on direct appeal. Our introductory discussion in Linkletter, made it clear that there are no jurisprudential or constitutional obstacles to the rule we are adopting here. See 381 U.S., at 622-629, 14 L ed 2d at 604-608. In appropriate prior cases we have already applied new judicial standards in a wholly prospective manner. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 11 L ed 2d 440, 84 S CT 461 (1964); James v. United States, 366 U.S. 213, 6 L ed 2d 246, 81 S CT 1052 (1961). Nor have we been shown any reason why our rule is not a sound accommodation of the principles of Escobedo and Miranda.

“In light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced.”

To reiterate, the Court holds that, in the interest of justice, its ruling of Apr. 27, 1988 shall apply prospectively to cases fi led in the Court after the promulgation of said ruling but shall not apply to cases fi led in Court prior to said resolution and pending trial nor to convictions or acquittals pronounced therein. The exception is where there has been a timely objection and specifi c challenge,

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as in this case, where the Court ordered the nullifi cation of the information fi led for lack of authority on the part of respondent Gonzales. The Court notes with disapproval the unilateral action of the Sandiganbayan in suspending all proceedings in the above-cited cases on the justifi cation that they might have become invalid as suggested by the respondent. No motion for such suspension had been fi led as far as this Court knows and in any event our decision was not yet fi nal. The action of the Sandiganbayan was uncalled for and precipitate. It has only added to the need-less confusion and concern generated by respondent’s hys-terical alarms. The Sandiganbayan is hereby admonished for its unwarranted act. The Court is also bemused by the gratuitous comments of certain supposed authorities on the Constitution, including some of its framers, who would invoke the records of their debates to support what would appear to be their retroactive intention. That intention, according to them, was to make the Ombudsman a “tooth-less tiger” only and to retain in the Special Prosecutor the power to prosecute, thus making him, in comparison, the more effective offi cer. If that was really the intention, it is certainly not refl ected at all in the language of Article XI. The rule in legal hermeneutics is that the intention of the framers should be sought and discovered in the text of the document itself, within the four corners of the instrument, before extrinsic aids may be resorted to, and then only if the language is ambiguous. The Court fi nds no ambiguity in the provision, whatever strained meanings these professed experts may give it now, in retrospect.

The debates in the constitutional convention do not necessarily refl ect the thinking of the entire body but may only reveal the individual views of some of the members.

The excerpts cited by the respondent, of an earlier discus-sion, do not appear to represent any agreement accepted by the commission as a whole. On the other hand, if reli-ance is to be placed at all on the proceedings, the more acceptable record is the following excerpt of a later debate showing that the move to restore the hitherto discarded power of investigation in the Offi ce of the Ombudsman

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was accepted and approved in the plenary session of July 28, 1986, of the Constitutional Commission.

“Mr. Bennagen: This is on page 4 after line 24. I propose to restore to the section the fi rst function that was in the Committee Report No. 16, which was not included in the Committee Report No. 17.

“Mr. Monsod: Yes, it is a whole paragraph. So, it is an amendment by insertion.

“The President: Before subparagraph 1.

“Mr. Bennagen: Yes, it used to be Section 6-A of Committee Report No. 16 and reads:

“TO INVESTIGATE ON ITS OWN OR ON COM-PLAINT BY ANY PERSON ANY ACT OR OMISSION OF ANY PUBLIC OFFICIAL, EMPLOYEE, OFFICE OR AGENCY WHEN SUCH ACT OR OMISSION IS ILLE-GAL, UNJUST, IMPROPER, OR INEFFICIENT.

“I think the reason [for] restoring this is that it is a direct function of the Ombudsman without having to delegate it to others.

“The President: Is this accepted?

“Mr. Romulo: Madam President, before we accept, could we ask Commissioner Bennagen to get together with Commissioner Natividad because he has the same idea.

The principle being enunciated is acceptable to us but so as not to duplicate efforts, I suggest that the proponent confer with Commissioner Natividad.

“The President: Commissioners Bennagen and Na-tividad are requested to confer.

x x x

“The President: Has it been accepted?

“Mr. Bennagen: Yes, Madam President.

“Mr. Monsod: Madam President, that is a restate-ment of the fi rst draft of the Committee and the proposal

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of Commissioner Bennagen is to restate it. The Committee accepts the proposal.’’

If the real intention of the framers is to arm the Special Prosecutor and disarm the Ombudsman, the Court can only wonder why it is that the text of Article XI, as the commissioners fi nally approved it, was to strengthen the Ombudsman and emasculate the Special Prosecutor. If the purpose was to make the Ombudsman a “constitutional eunuch,” as he is quaintly and pejoratively described, it may well be asked why he has been made an impeachable offi cer and for doing nothing is given the assistance of one overall deputy and at least a deputy each for Luzon, Visa-yas, and Mindanao, and even the military establishment.

As judges, we can only read sense out of the Constitution, guided by its language as the surest indication of the intention of its framers. If it is defi cient in wisdom, we cannot supply it; if it suffers from defects, we cannot cor-rect them; if it needs improvement, this cannot come from us. Only the people themselves, exercising their sovereign powers, can infuse it with the vigor of its commands as the ultimate authority in the republican society. It remains for us to deplore that much improper pressure, including the fi ling of the impeachment charges, has been exerted on the Court to intimidate it into reconsidering its decision.

Obviously, such threats must fail. The Court decides only on the merits of each case regardless of extraneous infl u-ences that can only becloud the issues and prevent their objective resolution. When the members of the Court sit as judges and rule under their oath, the law is their only lodestar and justice their only goal. This denial is fi nal and immediately executory.

Alcuaz, et al. v. PSBA, et al.

GR 76353, May 2, 1988

ISSUE: Whether or not there has been deprivation of due process for petitioners-students who have been barred from re-enrollment and for intervenors-teachers whose services have been terminated as faculty members, on account of their participation in the demonstration or

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protest charged by respondents as “anarchic rallies, and a violation of their constitutional rights of expression and assembly?”

HELD: Under similar circumstances where students have been refused re-enrollment but without allegation of termination of contracts as in the instant case, this Court has stressed, that due process in disciplinary cases involv-ing students does not entail proceedinvolv-ings and hearinvolv-ings similar to those prescribed for actions and proceedings in courts of justice. Such proceedings may be summary and cross-examination is not even an essential part thereof.

Accordingly, the minimum standards laid down by the Court to meet the demands of procedural due process are: (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf;

and (5) the evidence must be duly considered by the in-vestigating committee or offi cial designated by the school authorities to hear and decide the case. The right of the school to refuse re-enrollment of students for academic delinquency and violation of disciplinary regulations has always been recognized by this Court. Thus, the Court has ruled that the school’s refusal is sanctioned by law. Sec.

107 of the Manual of Regulations for Private Schools con-siders academic delinquency and violation of disciplinary regulations as valid grounds for refusing re-enrollment of students. The opposite view would do violence to the academic freedom enjoyed by the school and enshrined under the Constitution.

(10) Barangay Courts

Crispina Peñafl or v. Hon. Paño L-60083, Oct. 29, 1982

(1) Under Sec. 6 of PD 1508, no complaint, petition, action, or proceeding involving matters, within the authority of

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the Lupon (as provided for in Sec. 2 thereof) shall be fi led or instituted in court unless there has been confrontation between the parties.

(2) The Barangay Court has no jurisdiction if the parties come from different municipalities AND their barangays do not adjoin each other.

(11) Extradition Law

Justice Serafi n R. Cuevas

substituted by Artemio G. Tuquero in his capacity as Secretary of Justice v. Juan Antonio Muñoz

GR 140520, Dec. 18, 2000

The process of preparing a formal request for extradi-tion and its accompanying documents, and transmitting them thru diplomatic channels, is not only time-consuming but also leakage-prone. There is naturally a great likelihood of fl ight by criminals who get an intimation of the pending request for their extradition.

To solve this problem, speedier initial steps in the form of treaty stipulations for provisional arrest were formulated.

(Shearer, Extradition in International Law, 1971 ed., p. 200).

Thus, it is an accepted practice for the requesting state to rush its request in the form of a telex or diplomatic cable, the practicality of the use of which is conceded. Even our own Ex-tradition Law (PD 1069) allows the transmission of a request for provisional arrest via telegraph. With the advent of mod-ern technology, the telegraph or cable has been conveniently

Thus, it is an accepted practice for the requesting state to rush its request in the form of a telex or diplomatic cable, the practicality of the use of which is conceded. Even our own Ex-tradition Law (PD 1069) allows the transmission of a request for provisional arrest via telegraph. With the advent of mod-ern technology, the telegraph or cable has been conveniently