G.R. No. 178000 and 178003 - Liberato M. Carabeo v. Court of Appeals, et al.
[G.R. NOS. 178000 and 178003 : December 4, 2009]
LIBERATO M. CARABEO, Petitioner, v. COURT OF APPEALS, OMBUDSMAN SIMEON B. MARCELO, ASSISTANT OMBUDSMAN PAMO PELAGIO S. APOSTOL, MARGARITO TEVES, IN HIS CAPACITY AS SECRETARY OF FINANCE, AND TROY FRANCIS C. PIZARRO, JOEL APOLONIO, REYNALITO L. LAZARO, ISMAEL LEONOR, AND MELCHOR PIOL, IN THEIR CAPACITY AS MEMBERS OF THE PANEL OF INVESTIGATORS OF THE DEPARTMENT OF FINANCE-REVENUE INTEGRITY PROTECTION SERVICE, Respondents.
D E C I S I O N
This petition for certiorari 1 challenges the Court of Appeals' 31 October 2006 Joint Decision2 in CA-G.R. SP Nos. 91607 and 92313 dismissing Liberato M. Carabeo's certiorari petition against respondents, and the 28 March 2007 Resolution3 denying reconsideration and dismissing the contempt charge against Secretary Margarito Teves (Secretary Teves).
On 8 July 2005, the Department of Finance-Revenue Integrity Protection Service (DOF-RIPS), composed of private respondents Troy Francis Pizarro, Joel Apolonio, Reynalito L. Lazaro, Ismael Leonor, and Melchor Piol, filed a complaint with the Office of the Ombudsman against Carabeo, Officer-in-Charge (OIC) of the Office of the Treasurer of Parañaque City. The complaint pertinently alleged:
4. Based on the records we obtained, CARABEO is currently designated by the BLGF as City Treasurer II x x x. In September 1981, CARABEO first occupied the position of Revenue Collection Clerk at the Office of the City Treasurer of Parañaque earning an annual gross salary of Eight Thousand Four Hundred Pesos (
P8,400.00). As the present City Treasurer (In-charge of Office) at the City of Parañaque, CARABEO receives an annual gross salary of Two Hundred Ninety One Thousand Thirty Six Pesos ( P291,036.00).
5. The net worth of CARABEO, based on his Statements of Assets Liabilities and Net Worth (SALNs), from the time he commenced employment at the Parañaque Treasurer's Office in 1981 has ballooned from
P114,900.00 to approximately P7.5 Million in the year 2004.
6. Equally noticeable as the drastic increase in his net worth is the steady accumulation of various expensive properties by CARABEO and his spouse ranging from real properties to vehicles to club shares ownership.
7. In the last nine years, CARABEO and/or his spouse was able to purchase numerous real properties, including:
A. 1,000 sq.m. Residential lot in Tagaytay City;
b. 1,500 sq.m. Residential lot also in Tagaytay City;
c. Townhouse in Cavite; andcralawlibrary
d. Three separate parcels of land in Laguna.
8. Also, various expensive vehicles were found to be currently owned by CARABEO and/or his spouse, including the following:
A. Ford F150 Flareside (WMD-126);
b. Mazda Familia (WCL-191);
c. Chevrolet Cassia (WSG-781);
d. Mitsubishi Lancer (XCW-149);
e. Honda CRV (CYN-808).
In addition to these vehicles, CARABEO also owned, as of last year, two additional vehicles - a Honda City (WLX-553) and a Nissan Sentra (WSG-869).
9. However, CARABEO did not declare most of the foregoing vehicles in his SALNs. In his SALN for year 2003, CARABEO claimed that he owns only three vehicles GSR, CITY and CASSIA. In the succeeding year, CARABEO only declared ownership of only one vehicle, a GSR supposed acquired in 2002.
10. The records of the Land Transportation Office however belie this declaration of ownership of only three vehicles and later (in year 2004), of only one vehicle, with the LTO certification that CARABEO and/or his spouse owns at least seven vehicles including the expensive Ford F150 and Honda CRV.
11. Also, CARABEO and/or his spouse acquired the 1,000 sq.m. Tagaytay property in year 2001 but this substantial property acquisition was not reflected in the SALNs of CARABEO for said year as well as for the subsequent year.
12. CARABEO's failure to disclose his and his spouse's ownership of the foregoing Tagaytay property and vehicles in the pertinent SALNs amounts to a violation of Section 7 of RA 3019 and Section 8(A) of RA 6713 requiring him to file under oath the true and detailed statement of his assets as well as those of his spouse.
13. Punctuating the expensive list of purchases CARABEO and/or his spouse is his recent purchase of a share in the very exclusive The Palms Country Club in Alabang, Muntinlupa. An individual share in this premiere country club is currently priced at Seven Hundred Forty Five Thousand Pesos (
P745,000.00) and can only be purchased in cash.
14. x x x
15. While CARABEO claims in his SALNs to have investments in various businesses (Diosa Properties, Nalpa Trading, L.M. Carabeo Realty, Romilia Enterprises and J's Appleseed Food Products), the information we gathered on these alleged businesses indicates that these purported investments could not possibly justify the foregoing substantial purchases.
x x x
16. Any anticipated claim to the effect that CARABEO's wife has business undertakings that should explain their acquired wealth cannot also be given credence. Our inquiry with the BIR further showed that CARABEO's spouse, Cynthia, had no tax payments reflected on the Bureau's records, except for a one-time tax payment of approximately three thousand pesos (representing capital gains tax for one transaction). Such information provided by the BIR shows that CARABEO's spouse had no substantial income that can justify the foregoing property acquisitions.
17. It was also discovered in the course of our investigation that, in addition to the foregoing purchases, during the period 1996 to 2004, CARABEO went abroad at least fifteen times (or more than once a year) x x x .4
The DOF-RIPS prayed that the Office of the Ombudsman issue an order: (a) filing the appropriate criminal informations against Carabeo for violation of Republic Act (RA) Nos. 3019,5 6713,6 and 13797 and the Revised Penal Code; (b) instituting the appropriate administrative cases against Carabeo for the same violations, for dishonesty and grave misconduct; (c) commencing forfeiture proceedings against Carabeo's unlawfully acquired properties including those illegally obtained in the names of his spouse, children, relatives and agents; and (d) placing Carabeo under preventive suspension pursuant to Section 24 of RA 6770.8
In an Order dated 26 July 2005 in OMB-C-A-05-0333-G (LSC) and OMB-C-C-05-0337-G(LSC),9 the Office of the Ombudsman's Preliminary Investigation and Administrative Adjudication Bureau-A Acting Director, Corazon DLP. Tanglao-Dacanay (Acting Director Dacanay), directed
Secretary Teves to place Carabeo under preventive suspension for a period
not to exceed six months without pay. The order likewise directed Carabeo
to file his counter-affidavit to the DOF-RIPS' complaint within ten days from receipt thereof and gave the DOF-RIPS a similar period to file its reply thereto.
On 19 September 2005, Ombudsman Simeon V. Marcelo (Ombudsman Marcelo), upon the recommendation of Assistant Ombudsman Pelagio S. Apostol (Assistant Ombudsman Apostol), approved Acting Director Dacanay's 26 July 2005 Order.10
Aggrieved, Carabeo filed a petition for certiorari, docketed as CA-G.R. SP No. 91607, against Ombudsman Marcelo, Assistant Ombudsman Apostol, Secretary Teves, and the members of the DOF-RIPS, alleging that grave abuse of discretion amounting to lack or excess of jurisdiction attended the approval of his preventive suspension.
On 18 October 2005, the Court of Appeals issued a 60-day Temporary Restraining Order (TRO) enjoining the enforcement of Carabeo's preventive suspension.11
Meanwhile, on 10 November 2005, Secretary Teves issued Department Special Order No. 4-05 directing the detail of Carabeo to the DOF's Bureau of Local Government Finance at the DOF's Central Office (BLGF-CO). In his stead, Assistant City Treasurer of Makati, Jesusa E. Cuneta, was designated OIC-City Treasurer of Parañaque.
Claiming that his detail to the BLGF-CO violated the TRO issued in CA-G.R. SP No. 91607, Carabeo filed another petition before the Court of
Appeals, docketed as CA-G.R. SP No. 92313, where he prayed, among others, that Secretary Teves be cited for contempt of court.
On 19 December 2005, the Court of Appeals granted Carabeo's request that CA-G.R. SP No. 92313 be consolidated with CA-G.R. SP No. 91607 after holding that both petitions involved the same parties or related questions of fact and law and that the later petition for contempt arose out of Secretary Teves' alleged violation of the TRO issued in CA-G.R. SP No. 91607.
On 31 October 2006, the Court of Appeals rendered a Joint Decision, the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, the consolidated petitions are hereby DISMISSED. No costs.
Carabeo moved for reconsideration, which the Court of Appeals denied in its Resolution of 28 March 2007.
The Ruling of the Court of Appeals
In dismissing the petition for certiorari, the Court of Appeals held that a preventive suspension decreed by the Ombudsman by virtue of his authority under Section 21 of RA 6770, in relation to Section 9 of Administrative Order No. 7, is not meant to be a penalty but a means taken to insure the proper and impartial conduct of an investigation, which did not require prior notice and hearing.
The Court of Appeals rejected Carabeo's contention that he was deprived of due process. Carabeo wrongfully assumed that the Ombudsman
did not consider the evidence he presented when the Ombudsman approved Assistant Ombudsman Apostol's recommendation to preventively suspend him. Contrary to Carabeo's conclusion, however, the order of the Ombudsman to preventively suspend him stemmed from the Ombudsman's review of the factual findings reached by the investigating prosecutor.
The Court of Appeals also ruled that there is no need to publish Executive Order No. 259 (EO 259) before it could be given the force and effect of law because it is merely internal in nature regulating only the personnel of the administrative agency and not the public.
On Carabeo's contempt charge against Secretary Teves, the Court of Appeals classified it as indirect contempt, since it consisted of disobedience of or resistance to a lawful order of a court, under Section 3, Rule 71 of the Rules of Court. Thus, the contempt charge must be in writing and due process must be observed before the penalty is imposed.
In its Resolution of 28 March 2007, the Court of Appeals, aside from denying Carabeo's motion for reconsideration, ruled that the detail order was in accordance with Section 6 of Rule IV of the Civil Service Rules on Personnel Actions and Policies and CSC Resolution No. 621181 dated 21 September 2002. Therefore, Secretary Teves, in detailing Carabeo to BLGF-CO, did not commit contempt of court.
The issue in this case is whether the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction in (1) ruling that the failure to provide implementing rules of EO 259 does not render the same unenforceable; (2) sustaining the preventive suspension imposed by the Ombudsman on Carabeo; and (3) not considering the
complaint against Carabeo a violation of Section 10 of RA 6713 which entitles Carabeo to be informed beforehand and to take the necessary corrective action.
There is no more dispute on the matter of publication of EO 259 as it was clearly established that it was published in the Official Gazette13 on 23 February 2004.
The Ruling of this Court
We dismiss the petition.
The question on EO 259's enforceability is immaterial
to the validity of the charges against Carabeo.
Carabeo impugns the validity of EO 259 for lack of implementing rules and regulations. Indeed, EO 259 lacks any implementing guidelines. However, such fact is immaterial and does not affect, in any manner, the validity of the criminal and administrative charges against Carabeo. While the DOF-RIPS derived from EO 259 its power and authority to gather evidence against DOF officials and employees suspected of graft and corruption, the DOF-RIPS need not be vested with such power in order to validly file criminal and administrative charges against Carabeo. In fact, any concerned ordinary citizen can file criminal and administrative charges against any corrupt government official or employee if there exists sufficient
evidence of culpability. Hence, the DOF-RIPS, even without EO 259 and whether as subordinates of the Secretary of Finance or as private citizens, can validly file criminal and administrative charges against Carabeo.
At any rate, the Court finds that EO 259 is basically internal in nature needing no implementing rules and regulations in order to be enforceable. Principally aimed at curbing graft and corruption in the DOF and its attached agencies,14 EO 259 covers only officers and employees engaged in revenue collection. DOF-RIPS, which was created by virtue of EO 259, acts as the anti-corruption arm of the DOF that investigates allegations of corruption in the DOF and its attached agencies, then files the necessary charges against erring officials and employees with the proper government agencies.15 EO 259 expressly provides that the DOF-RIPS has the function, among others, "to gather evidence and file the appropriate criminal, civil or administrative complaints against government officials and employees before the appropriate court of law, administrative body, or agency of competent jurisdiction, and to assist the prosecuting agency or officer towards the successful prosecution of such cases." Simply put, the creation of an internal body in the DOF (RIPS), through EO 259, is but an essential component in the organized and effective collection of evidence against corrupt DOF officials and employees. The so-called "lifestyle check" pertains to the evidence-gathering process itself because it is through this method that the DOF-RIPS would be able to collect sufficient evidence to indict a suspected DOF official or employee for graft and corruption. Considering this, the Court finds nothing illegal with the "lifestyle check" as long as the constitutional and statutory rights of the accused are recognized and respected by the DOF-RIPS.
The preventive suspension order was legal.
Carabeo contends that there must be prior notice and hearing before the Ombudsman may issue a preventive suspension order.
The contention is bereft of merit. Settled is the rule that prior notice and hearing are not required in the issuance of a preventive suspension order, such suspension not being a penalty but only a preliminary step in an administrative investigation.16 As held in Nera v. Garcia:17
In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and be given an opportunity to prove his innocence.
Moreover, there is nothing in the law, specifically Section 24 of RA 6770, or The Ombudsman Act of 1989, which requires that notice and hearing precede the preventive suspension of an erring public official. This provision states:
SEC. 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.
While a preventive suspension order may originate from a complaint, the Ombudsman is not required to furnish the respondent with a copy of the complaint prior to ordering a preventive suspension.18
Carabeo also points out that his counter-affidavit and the evidence presented clearly shows that the complaint filed by the DOF-RIPS was baseless. Hence, the preventive suspension order had no leg to stand on.
Under Section 24 of RA 6770, two requisites must concur to render the preventive suspension order valid. First, there must be a prior determination by the Ombudsman that the evidence of respondent's guilt is strong. Second, (a) the offense charged must involve dishonesty, oppression, grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.19
These requisites are present here. The Ombudsman justified the issuance of the preventive suspension order in this wise:
As can be gleaned from the evidence on record, the deliberate failure of respondent Carabeo to disclose all of his supposed properties in his SALN, particularly the vehicles which are registered in his name involves dishonesty which, if proven, warrant his corresponding removal from the government service. The same is true with respect to the 1,000 square meter residential lot located at Tagaytay City which he failed to disclose in his SALN for 2001 and 2002, respectively.???ñr?bl? ??r
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