Republic of the Philippines
SUPREME COURT
Manila

EN BANC

 

G.R. Nos. 99289-90 January 13, 1992

MIRIAM DEFENSOR SANTIAGO, petitioner,
vs.
CONRADO M. VASQUEZ; Ombudsman; GUALBERTO J. DE LA LLANA, Special Prosecutor; SANDIGANBAYAN and REGIONAL TRIAL COURT OF MANILA, respondents.

Mariano P. Defensor for petitioner.

Nestor F. Ifurong for movant-intervenor.

Danilo C. Cunanan for respondents Vasquez and de la Llana.


REGALADO, J.:

In this petition for certiorari and prohibition with preliminary injunction, and the addendum thereto, petitioner seeks to enjoin the Sandiganbayan and the Regional Trial Courts of Manila from proceeding with Criminal Case No. 16698 for violation of Republic Act No. 3019, Section 3(e); Criminal Case No. 91-94555 for violation of Presidential Decree No. 46; and Criminal Case No. 91-94897 for libel.

In Criminal Case No. 16698 1 filed before the Sandiganbayan, petitioner; stands charged as follows:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality, did then and there wilfully, unlawfully and criminally approve the application for legalization of aliens who arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same, thereby causing undue injury to the government and giving unwarranted benefits and advantage to said aliens in the discharge of the official nd administrative functions of said accused.

Contrary to law.

In Criminal Case No. 91-94555 2 pending before the Regional Trial Court of Manila, petitioner, together with Daisy Montinola and Fermin Pacia, are accused of a violation of Presidential Decree No. 46, allegedly committed as follows:

That on or about November 28, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused Miriam Defensor-Santiago, Daisy Montinola and Fermin Pacia, all public officers, being then the Commissioner, Chief of the Board of Special Inquiry and employee of the Commission on Immigration and Deportation, respectively, in conspiracy with each other, did then and there, wilfully, unlawfully and criminally solicit and receive money, gifts and other valuable things from several (F)ilipino and foreign businessmen the same being given by reason of their respective official positions for past favor and expected favor and better treatment in the future from said accused, in the discharge of their respective official functions.

Contrary to law.

The information filed by the Office of the Special Prosecutor with the Regional Trial Court of Manila and docketed as Criminal Case No. 91-94897 3 indicts petitioner for the crime of libel, as follows:

That on or about May 24, 1988, at the Office of the Commission on Immigration and Deportation, Port Area, Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused, Miriam Defensor-Santiago, a public officer, being then the Commissioner of the Commission on Immigration and Deportation, acting in such capacity and taking advantage of her official position, did then and there with malice aforethought, wilfully, unalwfully and feloniously call, uter, state, impute and make scurrilous and defamotory statements against Maria S. Tatoy, by portraying the latter, then Chief of the Certificate Section, Commission on Immigration and Deportation to be "corrupt employee, a perennial trouble-maker who has filed administrative cases against all the commissioners under whom she served" and the Certificate Section of which she as the head as "not only useless but the most corrupt unit in the CID," in the presence of newspaper reporters and media personalities, thereby finding printin the newspapers, which tend to cause dishonor, discredit and contempt of said Maria S. Tatoy, to the damage and prejudice of the latter.

Contrary to law.

A temporary order was issued by this Court on May 24, 1991 4 ordering the Sandiganbayan and the Regional Trial Court, Branch 3, to respectively cease and desist from proceeding with Criminal Informations Nos. 11698 for violation of Republic Act No. 3019, Section 3(e) and 91-94555 for violation of Presidential Decree No. 46. This Court, in issuing the said restraining order, took into consideration the fact that, according to petitioner, her arraignment, originally set for June 5, 1991, was inexplicably advanced to May 27, 1991, hence the advisability of conserving and affording her the opportunity to avail herself of any remedial right to meet said contingency.

Petitioner avers that in filing the aforequoted criminal informations, respondents Ombudsman and Special Prosecutor acted with grave abuse of discretion amounting to lack or excess of jurisdiction. Specifically, petitioner contends that the criminal charges are meant and intended to harass her as a presidential candidate, in violation of Section 10, Article IX-C of the Constitution which provides that "(b)ona fide candidates for any public office shall be free from any form of harassment and discrimination."

Petitioner likewise asserts that the Ombudsman violated the very essence of fair play by choosing to file the informations at a time when petitioner was clearly disadvantaged by the injuries which she sustained in a vehicular accident, and only after three (3) years from the time the sixteen (16) charges were initially filed in 1988 by disgruntled employees of the Commission on Immigration and Deportation (CID); and that in filing the criminal informations just a year before the presidential elections, respondent Ombudsman in effect wants to detain petitioner by reason of her political aspirations. She further submits that the instant petition seeks to prevent respondents Ombudsman and Special Prosecutor from proceeding against her in an oppressive and vindictive manner and to afford adequate protection to her constitutional rights. She consequently posits that, on the foregoing premises, her present recourse should be considered as an exception to the general prohibition against petitions of this nature in criminal cases.

In their Comment, respondents Ombudsman and Special Prosecutor refute the claims of petitioner, explaining in the process the sequence of events which oed to the filing of the three (3) informations, in this wise:

The charges involved in Criminal Case No. 16698 and Criminal Case No. 91-94555 were taken cognizance of by the Office of the Ombudsman upon the same having been prominently published in the January 10, 1989 issue of the "Manila Standard." The investigation was originally handled by then Investigator Gualberto de la Llana but, on request of the petitioner, was reassigned to the Office of the Deputy Ombudsman for Luzon sometime in March, 1989. The case was handled by an investigating panel which submitted its draft resolution only on March 29, 1990. After the usual reviews by the Office of the Deputy Ombudsman for Luzon, the resolution was submitted for final action of respondent Ombudsman in late March, 1991.

A judicious appraisal of the record resulted in the issuance by the Ombudsman of the Memorandum for the Office of the Special Prosecutor directing the filing of the two (2) informations which have been docketed as Criminal Case No. 16698 of the Sandiganbayan, and Criminal Case No. 91-94555 of the Manila Regional Trial Court . . .

The said Memorandum, as may be noted on the face thereof, is dated April 26, 1991, or two (2) days before petitioner met the vehicular accident on April 28, 1991.

Respondent Ombudsman received the informations prepared by the Office of the Special Prosecutor only on May 13, 1991. Per office routine, after respondent Ombudsman approved the informations, they were forwarded to the Office of the Special Prosecutor which filed the same in the appropriate courts on May 13, 1991.

The record thus attests to the fact that the filing of Criminal Cases No. 16698 and 91-94555 was already a settled matter as early as two days before petitioner's unfortunate mishap. Their filing in court was in accordance with routine procedure, and impelled in some way by media's impatient and irritating inquiries as to what respondent Ombudsman had done in the petitioner's cases, induced no doubt by premature persistent false reports that the cases against petitioner had been dismissed by the Office of the Ombudsman.

With respect to the libel case which was filed with the Manila Regional Trial Court on May 24, 1991, docketed therein as Criminal Case No. 91-94897, the record will also show that the information in this case could have been filed as early as October 12, 1990 when the resolution recommending the prosecution of petitioner for libel was approved by respondent Ombudsman. . . . However, on the day it was to be filed, some lawyers of the petitioner came and asked the respondent Ombudsman to defer the filing of the information inasmuch as they intended to file a motion for reinvestigation, which they did on October 29, 1990. The reinvestigation was denied in a Memorandum dated 25 March 1991 of Special Prosecution Officer Reynaldo L. Mendoza (approved by respondent Ombudsman on April 22, 1991) and an information was subsequently filed on May 24, 1991.

Like in the previous two (2) cases, the filing of Criminal Case No. 91-94897 for libel had no relation at all to the accident which befell the petitioner on April 28, 1991. Its filing after the accident was caused by a clearly delaying tactic on the part of the petitioner. It is rather unkind for petitioner to impute ill-motivation on the part of the respondents, for something she herself is to blame. 5

The Court accordingly also takes note of the aforesaid disclosures of respondent Ombudsman that it was petitioner, personally or through counsel, who made representations with said respondents which we granted and caused him to defer action for some time on the complaints which were ultimately filed against her.

It is a long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society, except in specified cases among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. 6

The rule is equally applicable in cases where the Ombudsman had authorized the Special Prosecutor to conduct a preliminary investigation or to file an information as in the case at bar. Indubitably, such a responsible official is vested with discretion and is endowed with the competence to determine whether the complaint filed is sufficient in form and substance to merit such referral. The Ombudsman may himself dismiss the complaint in the first instance if in his judgment the acts or omissions complained of are not illegal, unjust, improper or sufficient. The Special Prosecutor, in case of referral of the complaint, may also dismiss the same on proper grounds after the requisite investigate and adjudicatory proceedings. 7 But if, as emphasized by respondent Ombudsman, "the evidence presented during the preliminary investigation constitute very valid grounds to charge petitioner Santiago and her co-accused before the Sandiganbayan and the Regional Trial Courts of Manila," no compelling reason would exist for us to rule otherwise.

Petitioner, claiming exception to the interdiction against a suit to enjoin criminal prosecution, avers that the instant petition seeks to prevent the strong arm of the law from being utilized in an oppressive and vindictive manner. 8 She then postulates that as one who has consistently topped all major presidential surveys from 1990 to 1991, the filing of the informations against her will prejudice her standing in the presidential surveys. This is, contextually and for legal intents and purposes herein, a mere verisimilitude.

At any rate, we definitely cannot subordinate the demands of public interest and policy to the political aspirations of herein petitioner. We have carefully gone over the records of the case and, contrary to the pretensions of petitioner, there is nothing to show that the informations in question were filed with the vindictive intention to oppress, harass and discriminate against her or to violate her constitutional rights. It is significant that petitioner failed to impute, much less prove, any ill-motive on the part of herein public respondents. Respondent Ombudsman categorically states that, and convincingly explains why, he "has no purpose, motive nor desire to endanger or discredit petitioner's aspirations for the highest position in the land." 9 This is made no more apparent than in the various memoranda 10 approved by respondent Ombudsman establishing that the admitted facts of record are sufficient to engender a well founded belief that each of the crimes charged has been committed, which parentheticaly, is the requisite quantum of evidence at this posture of each of said cases.

Petitioner submits that she cannot be held liable as charged and raises the following defenses: that the donations received were not for personal use but were distributed to the CID employees in a raffle held during the CID Christmas party; that the legalization of aliens who arrived in the Philippines after January 1, 984 was in accordance with the authority vested in her by Executive Order No. 324 and was intended to assure family unity; and that the defamatory words were made against Maria Tatoy only in self-defense.

We are not persuaded that we should, in the present recourse, pass upon these asseverations of petitioner which we note have previously been raised during the preliminary investigation. She will, of course, have all the opportunity to ventilate and substantiate the same in the proceedings before and/or during the trial of these cases in the lower courts which would be the proper stages and for the adjudication thereof. Accordingly, we quote with approval this portion of the Comment of respondent Ombudsman:

In her Petition and in the Addendum hereto, the petitioner had not made any denial of he operative facts on the basis of which the charges have been filed. Instead, petitioner relies on her perceived defenses on her interpretation of the said acts and the laws applicable thereto.

Thus, in Criminal Case No. 91-94555 for a violation of P.D. 46, petitioner admits the solicitation of donations and the giving of the same by those from whom such donations were solicited. Petitioner justifies the said act by claiming that the donations were not given for her "personal use" but for the purpose of the Christmas party of the Commission on Immigration and Deportation. Whether this claim would negate the applicability of P.D. 46 would involve an inquiry into certain facts which could only be ascertained during the trial of the case. Significantly, petitioner had not denied that the solicitation of said gifts was at her instance, and that she even scolded a certain Renato Orlanda whom she requested to sign the solicitation letters, but who refused to do so for fear of committing a violation of the law punishing such act.

With respect to Criminal Case No. 16698 for a violation of Sec. 3(e) of R.A. No. 3019, petitioner has also not denied that she admitted and approved the legalization of aliens who arrived in the Philippines after January 1, 1984, which act is contrary to the express provision of Executive Order No. 324. She reasons out her doing so by putting forth certain alleged principles and provisions of the same Executive Order which could be interpreted as giving her such authority to disregard the express prohibition in Executive Order No. 324. Again, these are matters of defense which the petitioner should prove during the trial.

In the libel case (Criminal Case No. 91-94897), petitioner likewise admits having uttered the words constituting the bases thereof in a television interview. She does not deny its libelous nature. She claims justification for having uttered the defamatory words against complainant Maria Tatoy on the ground of self-defense. Allegedly, Tatoy in an earlier interview, had mentioned about desiring to form a labor union among the employees of CID, but that the petitioner was against such move. Respondents fail to see how said statement of Tatoy could be considered as defamatory to justify a libelous response thereto on the ground of self-defense. 11

WHEREFORE, the petition and the addendum thereto are hereby DISMISSED, the writs prayed for are DENIED, and the temporary restraining order issued in this case is hereby LIFTED.

SO ORDERED.

Narvasa, C.J., Cruz, Paras, Padilla, Bidin, Medialdea and Davide, Jr., JJ., concur.

Nocon, J., took no part.

 

 

 

Separate Opinion

MELENCIO-HERERRA, J., concurring:

The long-standing doctrine is, indeed, that Writs of Injunction or Prohibition do not lie to restrain a criminal prosecution in view of the public interest involved. In fact, petitioner concedes this point but seeks an exception in her case.

I just wish to emphasize that the dismissal of this Petition in no way reflects on the criminal liability of petitioner. Its immediate effect is only that the cases against her may now proceed but without prejudice to procedural remedies that are open to her, like a Motion to Quash, and the defenses that she may raise, among them being, in at least two of the three cases, that the acts charged, as a matter of law, do not constitute an offense but are, as stated in Justice Feliciano's dissent, a matter of administrative interpretation or policy for which a public official should not be subjected to civil or criminal liability.

I would also like to point out that the Commissioner of Immigration and Deportation is charged with the administration of immigration laws. Section 3 of the Philippine Immigration Act of 1940 (C.A. No. 613) provides that the Commissioner "shall issue from time to time such instructions, not inconsistent with law, as he shall deem best calculated to carry out the provisions of the immigration laws." Executive Order No. 324, likewise, explicitly authorizes the Commissioner to issue rules and regulations necessary to implement the said Executive Order (paragraph 16). The Commissioner may even waive exclusion grounds under the Immigration Act, save in cases otherwise provided by law (paragraph 11).

In a pending bill in Congress (H. No. 30878), or the "Alien Legalization Act of 1991," the stay in the country of aliens who entered the Philippines prior to 2 February 1987 may be legalized upon their application (Sec. 2), which could mean any time prior thereto or even after January 1, 1984. The Commissioner is likewise given the authority to determine who among the alien-applicants may be qualified to be permanent residents, any adverse decision made being appealable only to the Office of the President (Sec. 7).

Indeed, inherent in the Commissioner's function is the exercise of judgment and discretion in the application of the laws that said official has been authorized to administer and enforce. The interpretation given by that Office, as with all other administrative bodies, is, as a general rule, entitled to great weight and respect.


FELICIANO, J., dissenting:

It is with regret that I am unable to agree completely with the majority opinion written by my learned brother in the Court, Mr. Justice Regalado, with his customary lucidity. That opinion expresses clearly the ordinary rule in the following terms:

It is a long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society, except in specified cases among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional right. (Citation omitted)

Mr. Justice Regalado also points out that the above general rule is applicable in respect of criminal prosecutions commenced by the Special Prosecutor and the Ombudsman:

The rule is of equal application in cases where the Ombudsman had authorized the Special Prosecutor to conduct a preliminary investigation or to file an information as in the case at bar. Indubitably, such a responsible official is vested with discretion and is endowed with the competence to determine whether the complaint filed is sufficient in form and substance to merit such referral. The Ombudsman may himself dismiss the complaint in the first instance if in his judgment the acts or omissions complained of are not illegal, unjust, improper or sufficient. The Special Prosecutor, in case of referral of the complaint, may also dismiss the same on proper grounds after the requisite investigative and adjudicatory proceedings. . . . (Citation omitted)

It is clear, of course, that there are more than a few exceptions to the above general rule. In Brocka, et al. v. Ponce-Enrile, et al., 1 the Court, speaking through Mr. Justice Medialdea, included the following in a list which would appear to be an open-ended one:

a. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of Justice
or . . . [to prevent] multiciplity of actions (Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a pre-judicial question which is sub judice (De Leon v. Mabanag, 70 Phil. 202);

xxx xxx xxx

e. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang v. People and Alvendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616);

xxx xxx xxx

j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga v. Pano, et al., L-59524, February 18, 1985, 134 SCRA 438);

x x x           x x x          x x x

It is my respectful submission that if the instant case, to the extent discussed below, does not already fall within one of the above exceptions, another and separate exception ought to be recognized.

The information filed before the Sandiganbayan in Criminal Case NO. 16698 charges the petitioner as follows:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, Manila, Philippines, and within the jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality, did then and there wilfully, unalwfully and criminally approve the application for legalization of aliens who arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same, thereby causing undue injury to the government and giving unwarranted benefits and advantage to the said aliens in the discharge of the official and administrative functions of said accused.

Contrary to law.

Essentially, the above information charges that petitioner had, in violation of the provisions of Executive Order No. 324, approved applications for legalization of the stay of aliens who had arrived in the Philippines after January 1, 1984. The information takes the position that Executive Order "does not allow the legalization of the same."

Executive Order No. 324 entitled "Waiving Passport Requirements for Immigrants under Certain Conditions," dated April 13, 1988, was promulgated pursuant to Section 47(A) (3) of C.A. No. 613, as amended, the Philippine Immigration Act of 1940, which provides that:

Notwithstanding the provisions of this Act, the President is authorized:

(a) when the public interest so warrants:

xxx xxx xxx

(3) to waive the passport requirements for immigrants, under such conditions as he may prescribe.

Executive Order No. 324 provides that an alien may apply with the Commissioner of Immigration and Deportation for waiver of passport requirements during a 12-month period beginning on a date to be designated by the Commissioner. The Order provides, among other things, that the alien "must establish that he entered the Philippines before January 1, 1984 and that he has resided continuously in the Philippines in an unlawful status from such date to the filing of his application."

Petitioner is charged with having unlawfully waived the passport requirements of certain aliens who arrived after January 1, 1984. It is clear from the record of this case, especially of the preliminary investigation conducted by the Office of the Special Prosecutor, that petitioner herself stated that she had allowed aliens who had arrived in the Philippines after January 1, 1984, but who were the spouses or minor children of qualified aliens the latter being alien spouses or parents who had entered the Philippines before January 1, 1984 and who were themselves qualified for waiver of passport requirements under Executive Order No. 324 to apply for waiver of passport requirements and, after compliance with requirements of Executive No. 324, approved such "legalization."

Executive Order No. 324 is not itself a statute prescribing penal sanctions for certain acts. Thus, disregard of Executive Order No. 324 would not, by itself, give rise to criminal liability. The criminal information in this case in effect links up Executive Order No. 324 with Section 3 (e) of Republic Act No. 3019, known as the Anti-Graft and Corrupt Practices Act. Section 3 (e) of the Anti-Graft Act reads as follows:

Sec. 3. Corrupt Practices of such Officers. In addition to acts or omissions of such officers already penalized by existing law, the following constitute corrupt practices of any public officer and hereby declared to be unlawful:

xxx xxx xxx

(e) causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other consessions. (Emphasis supplied)

It must be noted, firstly, that petitioner, as the then Commissioner of Immigration and Deportation, was expressly authorized and obliged by Executive Order No. 324 to apply and administer and enforce its provisions. Indeed, petitioner was authorized to issue rules and regulations to implement that Executive Order (paragraph 16). Secondly, the application and administration of Executive Order No. 324 involve, not ministerial or mechanical acts, but rather the exercise of judgment and discretion, adjudicatory and hence quasi-judicial in nature. Thirdly, and perhaps most notably, paragraphs 11 and 12 of the Executive Order provide as follows:

11. Except as provided in Paragraph 12, herein, the Commissioner of Immigration and Deportation may waive exclusion grounds under the Immigration Act in the case of individual aliens for humanitarian purposes to assure family unity or for the public interest.

12. The following grounds for exclusion may not be waived by the Commissioner of Immigration and Deportation, namely, (a) those relating to criminals; (b) those relating to aliens likely to become public charges; (c) those relating to drug offenses, except for so much of those provisions as relates to a single offense of simple possession of marijuana; and (d) those relating to national security and members of subversive organization.

xxx xxx xxx

(Emphasis supplied)

Paragraph 11, it will be seen, expressly authorizes petitioner to waive grounds for exclusion of aliens under the Immigration Act in two (2) cases; (a) "for humanitarian purposes to assure family unity;" and (b) "for the public interest." Under Section 29(a) of the Philippine Immigration Act of 1940, as amended, the classes of aliens excluded from entry into the Philippines include:

(17) Persons not properly documented for admission as may be required under the provisions of this Act. 2

Upon the other hand, paragraph 12 specifies the categories of persons in whose cases no waiver of grounds of exclusion may be granted.

It will be seen that the acts of petitioner, which the information assumes to be criminal in nature, constituted official acts of petitioner done in the course of applying, interpreting and construing Executive Order No. 324. There is no question that the applications for waiver of passport requirements by the spouses and minor children of qualified aliens were admitted and approved by petitioner "for humanitarian purposes to assure family unity." It is also not disputed that the said alien spouses and minor children did not fall under any of the (non-waivable) excluded classes listed in paragraph 12 of Executive Order No. 324. It is similarly undisputed that no one has pretended that petitioner had any personal or corrupt interest in any of the cases of alien spouses and minor children of qualified aliens she had acted upon. No one has suggested, for instance, that the fees specified in paragraph 9 of Executive Order No. 324 either were not collected by the Government or were misappropriated by petitioner and converted to her own use. It may be noted, incidentally, that paragraph 9 expressly authorizes the Commissioner "in her discretion, [to] charge a lower fee for the spouses and minor children below 21 years old of the applicant." The criminal information, as noted above, included an allegation of "evident bad faith and manifest partiality." It is clear, however, that the facts brought out in the preliminary investigation offered absolutely no basis for such an allegation which is actually a conclusion offered by the Special Prosecutor, much like the words "wilfully, unlawfully and criminally" which are recited redundantly in the criminal information here. Again, the facts disclosed in the preliminary investigation showed no "undue injury," to the Government and no "unwarranted benefit or advantage" to the alien wives and minor children of qualified aliens outside of the simple acceptance and approval of the applications for waiver of passport requirements (so called "legalization") by petitioner. In other words, if the interpretation or construction given by petitioner to Executive Order No. 324 is correct i.e., that applications for waiver of passport requirements by alien wives and minor children, arriving after January 1, 1984, of qualified aliens who had themselves arrived in the Philippines before January 1, 1984 and who were otherwise eligible under the terms and conditions of Executive Order No. 324 may be granted for humanitarian purposes in the interest of allowing or restoring family unity there would be no "injury," let alone an "undue injury," to the Government. Neither can the benefit of waiver of passport requirements in the cases of such spouses and minor children of qualified aliens be deemed to be an "unwarranted" benefit to such aliens if petitioner's interpretation of Executive Order No. 324 be held to be correct.

It is a rule too firmly established to require documentation that contemporaneous interpretations of a statute or implementing regulations by the executive or administrative officials precisely charged with the implementation of such a statute or regulation, are entitled to great weight and respect from the courts. This Court itself has in many instances deferred to such interpretations rendered by such administrative officers. 3 But even if an administrative interpretation be ultimately found to be incorrect as a matter of law by this Court, the official responsible for such interpretation is not, for that reason alone, to be held liable personally, whether civilly or criminally or administratively. It is just as firmly settled that to impose liability upon the public officer who has so acted, something far graver than error of law or error of judgment must be clearly shown and that is corrupt personal intentions, personal malice or bad faith. 4 As noted above, no such allegations were made during the preliminary investigation in Criminal Case No. 16698.

My submission, with respect, is that whether the acts admittedly done by petitioner were criminal in nature, is a legal question, on which petitioner in effect asks us to rule in this Petition. I believe, further, that there is nothing to prevent this Court from addressing and ruling on this legal issue. There is no real need for proof of any additional essential facts apart from those already admitted by petitioner. It seems to me that a public officer is entitled to have legal questions like that before this Court resolved at the earliest possible opportunity, that a public officer should not be compelled to go through the aggravation, humiliation and expense of the whole process of criminal trial, if the legal characterization of the acts charged as criminal is the very issue at stake.

I respectfully submit, still further, that the acts charged do not, as a matter of law, constitute a crime. Indeed, if the acts which petitioner admits having done constitute a criminal offense, very serious consequences would follow for the administration of law and government rules and regulations in general. For the thrust of the criminal information here would appear to be that public officers interpret and apply statutory and regulatory provisions at their own peril and at the risk of criminal liability, notwithstanding the absence of any corrupt intent to profit personally by any such interpretation and application.

The second information was filed in Criminal Case No. 91-94555 before the Regional Trial Court of Manila, charging petitioner with Daisy Montinola and Fermin Pacia with violation of P.D. No. 46 allegedly committed as follows:

That on or about November 28, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused Miriam Defensor-Santiago, Daisy Montinola and Fermin Pacia, all public officers, being then the Commissioner, Chief of the Board of Special Inquiry and employee of the Commission on Immigration and Deportation, respectively, in conspiracy with each other, did then and there, wilfully, unlawfully and criminally solicit and receive money, gifts and other valuable things from several (F)ilipino and foreign businessmen the same being given by reason of their respective official positions for past favor and expected favor and better treatment in the future from said accused, in the discharge of their respective official functions.

Contrary to law.

The facts brought out during the preliminary investigation of the above charge showed that, in connection with a Christmas party held on 20 December 1988 at 3:30 p.m. in front of the CID building, held by the Commission on Immigration and Deportation for the benefit of its employees, letters of solicitation were sent out to a great many people and companies, under the signature of Daisy Montinola and Fermin Pacia who were Chairman of the Christmas Committee and President of the CID Employees Association, respectively. The identical letters of solicitation read as follows:

Dear . . . :

The CID Christmas Party for employees will be held on Tuesday, 20 December 1988 at 3:30 p.m., in front of the CID Building on Magallanes Drive, Intramuros.

We shall be happy to receive your donations for the CID, to be distributed to the employees during the party. Further, we wish to invite you to the party, so that you can witness the distribution of proposed Christmas bags.

Under P.D. Nos. 46 and 807, the Commissioner strictly prohibits any employee from receiving any Christmas gift. Hence, Christmas gifts may be given, only to the CID as an agency.

Thank you very much for your generosity, and please accept our best Christmas wishes. . . .

Three hundred twenty six (326) letters were sent out; one hundred one (101) addressees responded with donations. Petitioner submitted a list of the donors and of the items and cash donated to the CID. The cash donations were used to purchase food and grocery items which, together with donations consisting of food, were then divided and packaged as individual Christmas baskets and distributed to 700 officers and employees of the CID, plus 34 members of the CID security force. Donations in kind, including five (5) electric appliances, plus small consolation prizes, were raffled off to the employees during the Christmas party. Petitioner also furnished a list of these prizes and of the purchases of food and grocery items. The accounting showed that a balance of P8,588.75 remained, which balance was earmarked to assist in the funding of the CID summer excursion for CID employees and their families. 5

The operative portion of P.D. No. 46, dated 10 November 1972, reads as follows:

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby make it punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing on any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his offical functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employee or his immediate relatives.

For violation of this Decree, the penalty of imprisonment for not less than one (1) year nor more than five (5) years and perpetual disqualification from public office shall be imposed. The official or employee concerned shall likewise be subject to administrative disciplinary action and if found guilty, shall be meted out the penalty of suspension or removal, depending on the seriousness of the offense. (Emphases supplied)

Here again, I respectfully submit, a serious legal question exists: whether or not the above acts of petitioner, as admitted by her during the course of the preliminary investigation, fall within the scope of P.D. No. 46. It is not disputed that the solicitation had been made for the purpose stated in the solicitation letter itself the 1988 Christmas party of the CID officers and employees. It is also not disputed that all the donations in cash or in kind had been utilized for and in connection with such Christmas party, and that the only personal benefit received by petitioner and her two (2) co-accused consisted of one Christmas food basket each, along with more than 700 other officers and employees of the CID.

One may, of course debate the wisdom of the measures so adopted or tolerated by petitioner in connection with that 1988 CID Christmas party. Petitioner hardly invented the employees' Christmas party, a practice widely observed in both the public and the private sectors. Petitioner's special contribution consisted of making sure that the solicitation, receipt and distribution of gifts were all done in organized and public manner, in full view of all the officers and employees of the CID and of the general public, doubtless to emphasize for whose benefit such solicitation had been conducted, to minimize private or secret solicitation by individual CID officers or employees, and to preclude any charge of secret personal benefit on her part nd of those who signed the solicitation letters. What is at stake here, however, is the legal question of whether or not the acts which petitioner has admitted constitute a criminal offense under P.D. No. 46 which, I believe, is ripe for determination by this Court. I also submit that those acts do not fall within the scope of P.D. No. 46 as it is presently written. 6 It may well be that, as a matter of administrative policy, all solicitation including solicitation for the benefit of the officers and employees of a particular agency of government should be prohibited and perhaps criminalized. That, however, is something for the legislative authority to consider and act upon, not the courts and certainly not in a criminal case.

For all the foregoing, and certainly in respect of two (2) out of the three (3) criminal informations filed against petitioner, I believe that the Petition for Certiorari and Prohibition should be granted and vote accordingly.

Gutierrez, Jr., Griño-Aquino and Romero, JJ., concur.

 

Separate Opinions

MELENCIO-HERERRA, J., concurring:

The long-standing doctrine is, indeed, that Writs of Injunction or Prohibition do not lie to restrain a criminal prosecution in view of the public interest involved. In fact, petitioner concedes this point but seeks an exception in her case.

I just wish to emphasize that the dismissal of this Petition in no way reflects on the criminal liability of petitioner. Its immediate effect is only that the cases against her may now proceed but without prejudice to procedural remedies that are open to her, like a Motion to Quash, and the defenses that she may raise, among them being, in at least two of the three cases, that the acts charged, as a matter of law, do not constitute an offense but are, as stated in Justice Feliciano's dissent, a matter of administrative interpretation or policy for which a public official should not be subjected to civil or criminal liability.

I would also like to point out that the Commissioner of Immigration and Deportation is charged with the administration of immigration laws. Section 3 of the Philippine Immigration Act of 1940 (C.A. No. 613) provides that the Commissioner "shall issue from time to time such instructions, not inconsistent with law, as he shall deem best calculated to carry out the provisions of the immigration laws." Executive Order No. 324, likewise, explicitly authorizes the Commissioner to issue rules and regulations necessary to implement the said Executive Order (paragraph 16). The Commissioner may even waive exclusion grounds under the Immigration Act, save in cases otherwise provided by law (paragraph 11).

In a pending bill in Congress (H. No. 30878), or the "Alien Legalization Act of 1991," the stay in the country of aliens who entered the Philippines prior to 2 February 1987 may be legalized upon their application (Sec. 2), which could mean any time prior thereto or even after January 1, 1984. The Commissioner is likewise given the authority to determine who among the alien-applicants may be qualified to be permanent residents, any adverse decision made being appealable only to the Office of the President (Sec. 7).

Indeed, inherent in the Commissioner's function is the exercise of judgment and discretion in the application of the laws that said official has been authorized to administer and enforce. The interpretation given by that Office, as with all other administrative bodies, is, as a general rule, entitled to great weight and respect.


FELICIANO, J., dissenting:

It is with regret that I am unable to agree completely with the majority opinion written by my learned brother in the Court, Mr. Justice Regalado, with his customary lucidity. That opinion expresses clearly the ordinary rule in the following terms:

It is a long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society, except in specified cases among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional right. (Citation omitted)

Mr. Justice Regalado also points out that the above general rule is applicable in respect of criminal prosecutions commenced by the Special Prosecutor and the Ombudsman:

The rule is of equal application in cases where the Ombudsman had authorized the Special Prosecutor to conduct a preliminary investigation or to file an information as in the case at bar. Indubitably, such a responsible official is vested with discretion and is endowed with the competence to determine whether the complaint filed is sufficient in form and substance to merit such referral. The Ombudsman may himself dismiss the complaint in the first instance if in his judgment the acts or omissions complained of are not illegal, unjust, improper or sufficient. The Special Prosecutor, in case of referral of the complaint, may also dismiss the same on proper grounds after the requisite investigative and adjudicatory proceedings. . . . (Citation omitted)

It is clear, of course, that there are more than a few exceptions to the above general rule. In Brocka, et al. v. Ponce-Enrile, et al., 1 the Court, speaking through Mr. Justice Medialdea, included the following in a list which would appear to be an open-ended one:

a. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of Justice
or . . . [to prevent] multiciplity of actions (Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a pre-judicial question which is sub judice (De Leon v. Mabanag, 70 Phil. 202);

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e. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang v. People and Alvendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616);

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j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga v. Pano, et al., L-59524, February 18, 1985, 134 SCRA 438);

x x x           x x x          x x x

It is my respectful submission that if the instant case, to the extent discussed below, does not already fall within one of the above exceptions, another and separate exception ought to be recognized.

The information filed before the Sandiganbayan in Criminal Case NO. 16698 charges the petitioner as follows:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, Manila, Philippines, and within the jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality, did then and there wilfully, unalwfully and criminally approve the application for legalization of aliens who arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same, thereby causing undue injury to the government and giving unwarranted benefits and advantage to the said aliens in the discharge of the official and administrative functions of said accused.

Contrary to law.

Essentially, the above information charges that petitioner had, in violation of the provisions of Executive Order No. 324, approved applications for legalization of the stay of aliens who had arrived in the Philippines after January 1, 1984. The information takes the position that Executive Order "does not allow the legalization of the same."

Executive Order No. 324 entitled "Waiving Passport Requirements for Immigrants under Certain Conditions," dated April 13, 1988, was promulgated pursuant to Section 47(A) (3) of C.A. No. 613, as amended, the Philippine Immigration Act of 1940, which provides that:

Notwithstanding the provisions of this Act, the President is authorized:

(a) when the public interest so warrants:

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(3) to waive the passport requirements for immigrants, under such conditions as he may prescribe.

Executive Order No. 324 provides that an alien may apply with the Commissioner of Immigration and Deportation for waiver of passport requirements during a 12-month period beginning on a date to be designated by the Commissioner. The Order provides, among other things, that the alien "must establish that he entered the Philippines before January 1, 1984 and that he has resided continuously in the Philippines in an unlawful status from such date to the filing of his application."

Petitioner is charged with having unlawfully waived the passport requirements of certain aliens who arrived after January 1, 1984. It is clear from the record of this case, especially of the preliminary investigation conducted by the Office of the Special Prosecutor, that petitioner herself stated that she had allowed aliens who had arrived in the Philippines after January 1, 1984, but who were the spouses or minor children of qualified aliens the latter being alien spouses or parents who had entered the Philippines before January 1, 1984 and who were themselves qualified for waiver of passport requirements under Executive Order No. 324 to apply for waiver of passport requirements and, after compliance with requirements of Executive No. 324, approved such "legalization."

Executive Order No. 324 is not itself a statute prescribing penal sanctions for certain acts. Thus, disregard of Executive Order No. 324 would not, by itself, give rise to criminal liability. The criminal information in this case in effect links up Executive Order No. 324 with Section 3 (e) of Republic Act No. 3019, known as the Anti-Graft and Corrupt Practices Act. Section 3 (e) of the Anti-Graft Act reads as follows:

Sec. 3. Corrupt Practices of such Officers. In addition to acts or omissions of such officers already penalized by existing law, the following constitute corrupt practices of any public officer and hereby declared to be unlawful:

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(e) causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other consessions. (Emphasis supplied)

It must be noted, firstly, that petitioner, as the then Commissioner of Immigration and Deportation, was expressly authorized and obliged by Executive Order No. 324 to apply and administer and enforce its provisions. Indeed, petitioner was authorized to issue rules and regulations to implement that Executive Order (paragraph 16). Secondly, the application and administration of Executive Order No. 324 involve, not ministerial or mechanical acts, but rather the exercise of judgment and discretion, adjudicatory and hence quasi-judicial in nature. Thirdly, and perhaps most notably, paragraphs 11 and 12 of the Executive Order provide as follows:

11. Except as provided in Paragraph 12, herein, the Commissioner of Immigration and Deportation may waive exclusion grounds under the Immigration Act in the case of individual aliens for humanitarian purposes to assure family unity or for the public interest.

12. The following grounds for exclusion may not be waived by the Commissioner of Immigration and Deportation, namely, (a) those relating to criminals; (b) those relating to aliens likely to become public charges; (c) those relating to drug offenses, except for so much of those provisions as relates to a single offense of simple possession of marijuana; and (d) those relating to national security and members of subversive organization.

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(Emphasis supplied)

Paragraph 11, it will be seen, expressly authorizes petitioner to waive grounds for exclusion of aliens under the Immigration Act in two (2) cases; (a) "for humanitarian purposes to assure family unity;" and (b) "for the public interest." Under Section 29(a) of the Philippine Immigration Act of 1940, as amended, the classes of aliens excluded from entry into the Philippines include:

(17) Persons not properly documented for admission as may be required under the provisions of this Act. 2

Upon the other hand, paragraph 12 specifies the categories of persons in whose cases no waiver of grounds of exclusion may be granted.

It will be seen that the acts of petitioner, which the information assumes to be criminal in nature, constituted official acts of petitioner done in the course of applying, interpreting and construing Executive Order No. 324. There is no question that the applications for waiver of passport requirements by the spouses and minor children of qualified aliens were admitted and approved by petitioner "for humanitarian purposes to assure family unity." It is also not disputed that the said alien spouses and minor children did not fall under any of the (non-waivable) excluded classes listed in paragraph 12 of Executive Order No. 324. It is similarly undisputed that no one has pretended that petitioner had any personal or corrupt interest in any of the cases of alien spouses and minor children of qualified aliens she had acted upon. No one has suggested, for instance, that the fees specified in paragraph 9 of Executive Order No. 324 either were not collected by the Government or were misappropriated by petitioner and converted to her own use. It may be noted, incidentally, that paragraph 9 expressly authorizes the Commissioner "in her discretion, [to] charge a lower fee for the spouses and minor children below 21 years old of the applicant." The criminal information, as noted above, included an allegation of "evident bad faith and manifest partiality." It is clear, however, that the facts brought out in the preliminary investigation offered absolutely no basis for such an allegation which is actually a conclusion offered by the Special Prosecutor, much like the words "wilfully, unlawfully and criminally" which are recited redundantly in the criminal information here. Again, the facts disclosed in the preliminary investigation showed no "undue injury," to the Government and no "unwarranted benefit or advantage" to the alien wives and minor children of qualified aliens outside of the simple acceptance and approval of the applications for waiver of passport requirements (so called "legalization") by petitioner. In other words, if the interpretation or construction given by petitioner to Executive Order No. 324 is correct i.e., that applications for waiver of passport requirements by alien wives and minor children, arriving after January 1, 1984, of qualified aliens who had themselves arrived in the Philippines before January 1, 1984 and who were otherwise eligible under the terms and conditions of Executive Order No. 324 may be granted for humanitarian purposes in the interest of allowing or restoring family unity there would be no "injury," let alone an "undue injury," to the Government. Neither can the benefit of waiver of passport requirements in the cases of such spouses and minor children of qualified aliens be deemed to be an "unwarranted" benefit to such aliens if petitioner's interpretation of Executive Order No. 324 be held to be correct.

It is a rule too firmly established to require documentation that contemporaneous interpretations of a statute or implementing regulations by the executive or administrative officials precisely charged with the implementation of such a statute or regulation, are entitled to great weight and respect from the courts. This Court itself has in many instances deferred to such interpretations rendered by such administrative officers. 3 But even if an administrative interpretation be ultimately found to be incorrect as a matter of law by this Court, the official responsible for such interpretation is not, for that reason alone, to be held liable personally, whether civilly or criminally or administratively. It is just as firmly settled that to impose liability upon the public officer who has so acted, something far graver than error of law or error of judgment must be clearly shown and that is corrupt personal intentions, personal malice or bad faith. 4 As noted above, no such allegations were made during the preliminary investigation in Criminal Case No. 16698.

My submission, with respect, is that whether the acts admittedly done by petitioner were criminal in nature, is a legal question, on which petitioner in effect asks us to rule in this Petition. I believe, further, that there is nothing to prevent this Court from addressing and ruling on this legal issue. There is no real need for proof of any additional essential facts apart from those already admitted by petitioner. It seems to me that a public officer is entitled to have legal questions like that before this Court resolved at the earliest possible opportunity, that a public officer should not be compelled to go through the aggravation, humiliation and expense of the whole process of criminal trial, if the legal characterization of the acts charged as criminal is the very issue at stake.

I respectfully submit, still further, that the acts charged do not, as a matter of law, constitute a crime. Indeed, if the acts which petitioner admits having done constitute a criminal offense, very serious consequences would follow for the administration of law and government rules and regulations in general. For the thrust of the criminal information here would appear to be that public officers interpret and apply statutory and regulatory provisions at their own peril and at the risk of criminal liability, notwithstanding the absence of any corrupt intent to profit personally by any such interpretation and application.

The second information was filed in Criminal Case No. 91-94555 before the Regional Trial Court of Manila, charging petitioner with Daisy Montinola and Fermin Pacia with violation of P.D. No. 46 allegedly committed as follows:

That on or about November 28, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused Miriam Defensor-Santiago, Daisy Montinola and Fermin Pacia, all public officers, being then the Commissioner, Chief of the Board of Special Inquiry and employee of the Commission on Immigration and Deportation, respectively, in conspiracy with each other, did then and there, wilfully, unlawfully and criminally solicit and receive money, gifts and other valuable things from several (F)ilipino and foreign businessmen the same being given by reason of their respective official positions for past favor and expected favor and better treatment in the future from said accused, in the discharge of their respective official functions.

Contrary to law.

The facts brought out during the preliminary investigation of the above charge showed that, in connection with a Christmas party held on 20 December 1988 at 3:30 p.m. in front of the CID building, held by the Commission on Immigration and Deportation for the benefit of its employees, letters of solicitation were sent out to a great many people and companies, under the signature of Daisy Montinola and Fermin Pacia who were Chairman of the Christmas Committee and President of the CID Employees Association, respectively. The identical letters of solicitation read as follows:

Dear . . . :

The CID Christmas Party for employees will be held on Tuesday, 20 December 1988 at 3:30 p.m., in front of the CID Building on Magallanes Drive, Intramuros.

We shall be happy to receive your donations for the CID, to be distributed to the employees during the party. Further, we wish to invite you to the party, so that you can witness the distribution of proposed Christmas bags.

Under P.D. Nos. 46 and 807, the Commissioner strictly prohibits any employee from receiving any Christmas gift. Hence, Christmas gifts may be given, only to the CID as an agency.

Thank you very much for your generosity, and please accept our best Christmas wishes. . . .

Three hundred twenty six (326) letters were sent out; one hundred one (101) addressees responded with donations. Petitioner submitted a list of the donors and of the items and cash donated to the CID. The cash donations were used to purchase food and grocery items which, together with donations consisting of food, were then divided and packaged as individual Christmas baskets and distributed to 700 officers and employees of the CID, plus 34 members of the CID security force. Donations in kind, including five (5) electric appliances, plus small consolation prizes, were raffled off to the employees during the Christmas party. Petitioner also furnished a list of these prizes and of the purchases of food and grocery items. The accounting showed that a balance of P8,588.75 remained, which balance was earmarked to assist in the funding of the CID summer excursion for CID employees and their families. 5

The operative portion of P.D. No. 46, dated 10 November 1972, reads as follows:

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby make it punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing on any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his offical functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employee or his immediate relatives.

For violation of this Decree, the penalty of imprisonment for not less than one (1) year nor more than five (5) years and perpetual disqualification from public office shall be imposed. The official or employee concerned shall likewise be subject to administrative disciplinary action and if found guilty, shall be meted out the penalty of suspension or removal, depending on the seriousness of the offense. (Emphases supplied)

Here again, I respectfully submit, a serious legal question exists: whether or not the above acts of petitioner, as admitted by her during the course of the preliminary investigation, fall within the scope of P.D. No. 46. It is not disputed that the solicitation had been made for the purpose stated in the solicitation letter itself the 1988 Christmas party of the CID officers and employees. It is also not disputed that all the donations in cash or in kind had been utilized for and in connection with such Christmas party, and that the only personal benefit received by petitioner and her two (2) co-accused consisted of one Christmas food basket each, along with more than 700 other officers and employees of the CID.

One may, of course debate the wisdom of the measures so adopted or tolerated by petitioner in connection with that 1988 CID Christmas party. Petitioner hardly invented the employees' Christmas party, a practice widely observed in both the public and the private sectors. Petitioner's special contribution consisted of making sure that the solicitation, receipt and distribution of gifts were all done in organized and public manner, in full view of all the officers and employees of the CID and of the general public, doubtless to emphasize for whose benefit such solicitation had been conducted, to minimize private or secret solicitation by individual CID officers or employees, and to preclude any charge of secret personal benefit on her part nd of those who signed the solicitation letters. What is at stake here, however, is the legal question of whether or not the acts which petitioner has admitted constitute a criminal offense under P.D. No. 46 which, I believe, is ripe for determination by this Court. I also submit that those acts do not fall within the scope of P.D. No. 46 as it is presently written. 6 It may well be that, as a matter of administrative policy, all solicitation including solicitation for the benefit of the officers and employees of a particular agency of government should be prohibited and perhaps criminalized. That, however, is something for the legislative authority to consider and act upon, not the courts and certainly not in a criminal case.

For all the foregoing, and certainly in respect of two (2) out of the three (3) criminal informations filed against petitioner, I believe that the Petition for Certiorari and Prohibition should be granted and vote accordingly.

Gutierrez, Jr., Griño-Aquino and Romero, JJ., concur.


Footnotes

1 Annex A, Petition; Rollo, 19.

2 Annex B, Id.; Ibid., 22.

3 Annex E, Addendum to Petition; Ibid., 310.

4 Rollo, 285.

5 Ibid., 416-418.

6 Ramos, et al. vs. Aquino, etc., et al., 39 SCRA 641 (1971); Arkoncel vs. Court of First Instance of Basilan City, etc., et al., 66 SCRA 361 (1975); Asutilla vs. Philippine National Bank, etc., et al., 141 SCRA 40 (1986).

7 Tabujara vs. Office of the Special Prosecutor, et al., G.R. No. 87912, Resolution En Banc, January 18, 1990.

8 Rollo, 14.

9 Ibid., 420-421.

10 Annex C, Petition, Rollo, 23; Annex F, Addendum to Petition, Rollo, 312; and Annex 4, Comment of Public Respondents, Rollo, 445.

11 Rollo, 424-425.

Feliciano, J.

1 192 SCRA 183 (1990).

2 It is also pertinent to note the following classes of excluded aliens:

(10) Persons who are members of a family accompanying an excluded alien, unless in the opinion of the Commissioner of Immigration no hardship would result from their admission;

(11) Persons accompanying an excluded person who is helpless from mental or physical disability or infancy, when the protection or guardianship of such accompanying person or persons is required by the excluded person, as shall be determined by the Commissioner of Immigration;

(12) Children under fifteen years of age, unaccompanied by or not coming to a parent, except that any such children may be admitted in the discretion of the Commissioner of Immigration, if otherwise admissible;

xxx xxx xxx

(Section 29 [a], C.A. No. 613, as amended; emphasis supplied)

3 See, e.g., Ramos v. Court of Industrial Relations, 21 SCRA 1282 (1967); Salavaria v. Buenviaje, 81 SCRA 722 (1978); Asturias Sugar Central, Inc. v. Commissioner of Customs, 29 SCRA 617 (1969); University of the Philippines v. Court of Appeals, 37 SCRA 54 (1971); Lim Hao Ting v. Central Bank, 104 Phil. 573 (1958).

4 See generally Marcelo v. Sandiganbayan, 185 SCRA 346 (1990).

5 Rollo, p. 37.

6 It might be noted that Section 36 of the Civil Service Law (P.D. No. 807, as amended) specifies, among grounds for disciplinary action, the following:

(9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws. (Emphasis supplied)


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