G.R. No. 225301 - Concurring and Dissenting Opinion

G.R. No. 225301, June 2, 2020,
♦ Decision, Reyes, [J]
♦ Separate Concurring Opinion, Perlas-Bernabe, [J]
♦ Separate Concurring and Dissenting Opinion, Leonen, [J]
♦ Concurring and Dissenting Opinion, Caguioa, [J]
♦ Concurring and Dissenting Opinion, Lazaro-Javier, [J]
♦ Concurring Opinion, Zalameda, [J]

THE DEPARTMENT OF TRADE AND INDUSTRY, REPRESENTED BY ITS SECRETARY, THE UNDERSECRETARY OF THE CONSUMER PROTECTION GROUP, MEMBERS OF THE SPECIAL INVESTIGATION COMMITTEE, AND THE DIRECTOR OF LEGAL SERVICE, PETITIONERS, VS. DANILO B. ENRIQUEZ, RESPONDENT.

The petition should be dismissed for lack of merit. Though I do not agree with certain pronouncements of the lower court, it reached the correct decision consistent with the rule in Baculi v. Office of the President1 (Baculi).

Disciplinary authority over presidential appointees belongs concurrently to the Office of the President (OP) and the Office of the Ombudsman (OMB). Thus, the conduct of the formal investigation of a presidential appointee contemplated under Sections 47 to 52 of Chapter 7, Subtitle A, Title 1, Book V of the Executive Order No. 292 or the Administrative Code of 1987 (Administrative Code), subsequent to the filing of a complaint or Formal Charge is exclusively within the jurisdiction of the OP and OMB.

However, there is no legal impediment to a preliminary investigation by the Secretary of a subordinate short of taking disciplinary action (e.g., placing a presidential appointee under preventive suspension or filing a formal charge, as in this case). This is inherent to the power of supervision and control over a department that a Secretary is given by law.

SECTION 6. Authority and Responsibility of the Secretary. — The authority and responsibility for the exercise of the mandate of the Department and for the discharge of its powers and functions shall be vested in the Secretary, who shall have supervision and control of the Department.

Certainly, the Secretary has the power to investigate a subordinate for purposes of determining whether a complaint should be filed or referred to the proper disciplining authority, or to prevent the disruption of the operations of his office.

Without more, this appears to be the extent of the disposition of the court a quo.3 This qualification is also confirmed by the fact that the preliminary investigation is still nevertheless allowed to produce effect by the ponencia (i.e., referral of findings of the Department of Trade and Industry (DTI) Secretary to the OP or OMB for the conduct of proper proceedings), similar to the case of Baculi.

A more precise rule, to my mind, is that the disciplinary jurisdiction of the OP and the OMB over presidential appointees does not negate the power of a Secretary of a department to conduct a preliminary investigation short of taking disciplinary action (e.g., placing a presidential appointee under preventive suspension or filing a formal charge).

As applied to this case, the preliminary investigation conducted within the DTI was authorized by law but the proceedings subsequent to the Formal Charge not brought before the OP or OMB were susceptible to certiorari and were correctly nullified by the court a quo.

On the Secretary's limited disciplinary jurisdiction and the applicability of Sections 47 to 52 of the Administrative Code.

Section 38(a) of Presidential Decree No. 807 and Sections 47 to 52 of Chapter 7, Subtitle A, Title I, Book V of the Administrative Code speak only of the procedures in administrative cases against non-presidential employees. Sections 47 and 514 relating to the disciplinary jurisdiction of Secretaries do not appear operational as regards presidential appointees. By its own rules as contained in the 2017 Revised Rules on Administrative Cases in the Civil Service (2017 RRACS),5 the Civil Service Commission (CSC) recognizes that it does not have jurisdiction over presidential appointees. Section 9,6 Rule 2 of the 2017 RRACS echoes the provisions of Section 47(2)7 of the Administrative Code, also signaling inapplicability to presidential appointees.

In this regard, I believe that Sections 6 and 7(5), Chapter 2, Book IV of the Administrative Code are sufficient legal bases for the Secretary's exercise of the power to investigate and designate a committee or officer to conduct such investigation, without further reliance on the non-exclusive language of Section 47(2), Chapter 7, A, Subtitle A, Title I, Book V of the Administrative Code.

Insofar as presidential appointees coming under the direct disciplinary jurisdiction of the OP and OMB, the provisions of Sections 46 to 52 of the Administrative Code relating to the "disciplining authority" and "proper disciplining authority" must be read to pertain to the OP and OMB. Thus, for presidential appointees, the power to impose disciplinary penalties in Section 46,8 resort to summary proceedings under Section 50,9 and placing the employee under preventive suspension under Section 5110 do not pertain to the Department Secretary, but to the OP and OMB.

While I agree that preventive suspension is not a penalty, the power to impose it must be interpreted to pertain to the OP or OMB as proper disciplining authority — as necessitated by consistency.

That said, there is nothing that prevents the Secretary from imposing preventive suspension, conducting the investigation subsequent to the institution of a formal complaint, and imposing disciplinary penalties with the express conformity of or prior approval from the OP. As between a unilateral exercise of full disciplinary jurisdiction over a presidential appointee that flies in the face of the President's direct disciplinary jurisdiction, obtaining the express conformity or prior approval of the OP prior to the taking of disciplinary action is not an unreasonable requirement for a Secretary who is an alter ego.

This limited disciplinary jurisdiction is the most reasonable interpretation that gives effect to the Secretary's power of supervision and control over his department while respecting the direct disciplinary jurisdiction of the President over his appointees. This is also consistent with Baculi.11

Relatedly, while the doctrine of qualified political agency may justify a Secretary's exercise of disciplinary jurisdiction over a subordinate presidential appointee, this limited disciplinary jurisdiction must be short of taking disciplinary action (i.e., the imposition of penalties). To my mind, this limitation is justified by:

The doctrine of qualified political agency must be consistent with the President deciding to directly investigate and take cognizance of complaints and administrative cases against presidential appointees. For suspected graft and corrupt practices as is involved in this case, the OP had issued Executive Orders (EO) creating the Presidential Anti-Graft Commission,12 transferring its powers, duties and functions to Office of the Deputy Executive Secretary for Legal Affairs,13 and under the current administration, the Presidential Anti-Corruption Commission14 for that specific purpose.

Viewed in this light, the holding in Baculi followed by the court a quo has sound basis. Executive issuances and those of other national government agencies affirm the contemporaneous construction that the direct disciplinary jurisdiction over presidential appointees belongs to the OP and OMB. Hence, only the investigation can be done by the Secretary. The procedure envisioned in Sections 47 to 52 of Chapter 7, Subtitle A, Title I, Book V of the Administrative Code, subsequent to the filing of a Formal Charge is within the jurisdiction of the OP and OMB.

These issuances, issued under the ordinance power of the President relating to constitutional or statutory powers (i.e., the sharing of disciplinary jurisdiction with heads of offices)15 may be read as a continuing decision of the President to directly take cognizance of complaints and cases against presidential appointees, limiting the applicability of qualified political agency with respect to the exercise of disciplinary jurisdiction over presidential appointees. In this class of cases, EOs, while not repealing laws, may validly modify them.

Hence, the general proposition that an EO cannot repeal a law does not hold true in this case.

In Baculi, the doctrine of qualified political agency for purposes of imposing disciplinary penalties (i.e., dismissal) was accorded, not to the Department Secretary but to the Deputy Executive Secretary, thus:

And, secondly, it was of no moment to the validity and efficacy of the dismissal that only Acting Deputy Executive Secretary for Legal Affairs Gaite had signed and issued the order of dismissal. In so doing, Acting Deputy Executive Secretary Gaite neither exceeded his authority, nor usurped the power of the President. Although the powers and functions of the Chief Executive have been expressly reposed by the Constitution in one person, the President of the Philippines, it would be unnatural to expect the President to personally exercise and discharge all such powers and functions. Somehow, the exercise and discharge of most of these powers and functions have been delegated to others, particularly to the members of the Cabinet, conformably to the doctrine of qualified political agency. Accordingly, we have expressly recognized the extensive range of authority vested in the Executive Secretary or the Deputy Executive Secretary as an official who ordinarily acts for and in behalf of the President. As such, the decisions or orders emanating from the Office of the Executive Secretary are attributable to the Executive Secretary even if they have been signed only by any of the Deputy Executive Secretaries.16

For the same reason above, the alter ego or qualified political agency doctrine must defer to the final action of the President with respect to disciplinary action (i.e., imposition of penalties). It may indeed lead to unnecessary embarrassment to the Executive Department if the President is constrained to reinstate a presidential appointee removed or suspended by the Secretary in his capacity as alter ego in the face of the executive issuances already signaling the President's decision to directly exercise disciplinary jurisdiction over these persons he personally appointed. It is much more workable for the limited disciplinary jurisdiction to be recognized as in Baculi and for the Secretary to recommend and leave the taking of disciplinary action to the President as the appointing power.

The decision holds that the petition is not mooted by the expiration of respondent Enriquez's term upon the appointment of another person to his position. I recognize the merit of SAJ Perlas-Bernabe's position that the Formal Charge filed by the investigating committee signifies the institution of the complaint conformably with Baculi, and that cessation from office "is not a way out to evade administrative liability when facing administrative sanction. [It] does not preclude the finding of any administrative liability to which he or she shall still be answerable."17

While I agree that the issues raised in this case remain justiciable despite respondent Enriquez's separation, my position is that for presidential appointees, administrative jurisdiction may only be had by the timely filing of a Formal Charge before the OP or the OMB during the incumbency of the said appointee. This is not inconsistent with the jurisprudence18 dealing with either dismissed or resigned officials. The Formal Charge herein was not brought to the OP or OMB during the respondent's tenure; hence, no complaint was timely instituted before the proper disciplining authority. There is no valid pending or subsisting administrative complaint that could be the avenue to find administrative liability at this stage. This is in stark contrast with the fact pattern in Baculi: the Department of Agrarian Reform Secretary forwarded his findings and recommendations to the OP while the petitioner was still in office; the OP, in turn, dismissed the petitioner therein from the service.

Hence, I do not believe that there is basis to refer the SIC's findings to the OP for imposition of administrative penalties, if any.

In fine, I maintain that the extent of disciplinary jurisdiction of a Department Secretary over a subordinate-presidential appointee includes the power to investigate, and designate a committee or officer to conduct such investigation, BUT does not include the power to unilaterally place the presidential appointee under preventive suspension and to unilaterally impose disciplinary penalties. Given the state of the law and executive issuances on the matter, there is no pressing need to deviate from or abandon Baculi.

Moreover, separate from the issue of whether the DTI Secretary has disciplinary jurisdiction over a subordinate presidential appointee, I believe that DTI's failure to bring the Formal Charge before the proper disciplining authority (i.e., OP or OMB) prior to the respondent's separation from office means no disciplinary jurisdiction can be had over him at this stage. It also forecloses the continuation of proceedings with a view of finding administrative liability on the part of respondent Enriquez.