A judgment becomes "final and executory" by operation of law. - There is no general legal principle that mandates that all decisions of quasi-judicial agencies are immediately executory.

"xxx.

The sole issue addressed by our 5 April 2000 Resolution is whether or not the decision of the Office of the Ombudsman finding herein petitioner administratively liable for misconduct and imposing upon him a penalty of one (1) year suspension without pay is immediately executory pending appeal.

Petitioner was administratively charged for misconduct under the provisions of R.A. 6770, the Ombudsman Act of 1989. Section 27 of the said Act provides as follows:

Sec. 27. Effectively and Finality of Decisions. — All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on the following grounds:

x x x x x x x x x

Findings of fact of the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The Rules of Produce of the Office of the Ombudsman 17 likewise contain a similar provision. Section 7, Rule III of the said Rules provides as follows:

Sec. 7. Finality of Decision. — where the respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final and unapllealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of R.A. 6770.

It is clear from the above provisions that the punishment imposed upon petitioner, i.e. suspension without pay for one year, is no among those listed as final and unappealable, hence, immediately executory. Section 27 states that all provisionary orders of the Office of the Ombudsman are immediately effective and executory; and that any order, directive or decision of the said Office imposing the penalty of censure or reprimand or suspension of not more than one month's salary is final and unappealable. As such the legal maxim "inclusion unius est exclusio alterus" finds application. The express mention of the things included excludes those that are not included. The clear import of these statements taken together is that all other decisions of the Office of the Ombudsman which impose penalties that are not enumerated in the said section 27 are not final, unappealable and immediately executory. An appeal timely filed, such as the one filed in the instant case, will stay the immediate implementation of the decision. This finds support in the Rules of Procedure issued by the Ombudsman itself which states that "(I)n all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari (should now be petition for review under Rules 43) shall have been filed by him as prescribed in Section 27 of R.A. 6770."

The Office of the Solicitor General insists however that the case of Fabian vs. Desierto 18 has voided Section 27 of R.A. 6770 and Section 7, Rule III of Administrative Order No. 07. As such, the review of decision of the Ombudsman in administrative cases is now governed by Rule 43 of the 1997 Rules of Civil Procedure which mandates, under Section 12 19 thereof, the immediately executory character of the decision or order appealed from.

The contention of the Solicitor General is not well-taken. Our ruling in the case of Fabian vs. Desierto invalidated Section 27 of Republic Act No. 6770 and Section 7, Rule III of Administrative Order No. 07 and any other provision of law implementing the aforesaid Act only insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court. The only provision affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and of Rule 43 of the Rules of Court as the proper mode of appeal. All other matters included in said section 27, including the finality or non-finality of decisions, are not affected and still stand.

Neither can respondents find support in Section 12, Rule 43 of the 1997 Rules of Civil Procedure which provides as follows:

Sec. 12. Effect of Appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

On this point, respondents contend that considering the silence of the Ombudsman Act on the matter of execution pending appeal, the above-quoted provision of the Rules of Court, which allegedly mandates the immediate execution of all decisions rendered by administrative and quasi-judicial agencies, should apply suppletorily to the provisions of the Ombudsman Act. We do not agree.

A judgment becomes "final and executory" by operation of law. 20 Section 27 of the Ombudsman Act provides that any order, directive or decision of the Office of the Ombudsman imposing a penalty of public censure or reprimand, or suspension of not more than one month's salary shall be final and unappealable. In all other cases, the respondent therein has the right to appeal to the Court of Appeals within ten (10) days from receipt of the written notice of the order, directive or decision. In all these other cases therefore, the judgment imposed therein will become final after the lapse of the reglementary period of appeal in of appeal is perfected 21 or, an appeal therefrom having been taken, the judgment in the appellate tribunal become final. It is this final judgment which is then correctly categorized as a "final and executory judgment" in respect to which execution shall issue as a matter of right. 22 In other words, the fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.

The general rule is that judgments by lower courts or tribunals become executory only after it has become final and executory, 2 execution pending appeal being an exception to this general rule. It is the contention of respondents however that with respect to decisions of quasi-judicial agencies and administrative bodies, the opposite is true. It is argued that the general rule with respect to quasi-judicial and administrative agencies is that the decisions of such bodies are immediately executory even pending appeal.

The contention of respondents is misplaced. There is no general legal principle that mandates that all decisions of quasi-judicial agencies are immediately executory. Decisions rendered by the Securities and Exchange Commission 24 and the Civil Aeronautics Board, 25 for example, are not immediately executory and are stayed when an appeal is filed before the Court of Appeals. On the other hand, the decisions of the Civil Service Commission, under the Administrative Code 26 , and the Office of the President under the Local Government Code 27 , which respondents cite, are immediately executory even pending appeal because the pertinent laws under which the decisions were rendered mandate them to be so. The provisions of the last two cited laws expressly provide for the execution pending appeal of their final orders or decisions. The Local Government Code, under Section 68 thereof provides as follows:

Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from becoming final and executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal.

Similarly, Book V, Title I, Subtitle A, Chapter 6, Section 47, par. (4) of the Administrative Code of 1987 provides:

(4) An appeal shall not stop the decision from being from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.

Where the legislature has seen fit to declare that the decision of the quasi-judicial agency is immediately final and executory pending appeal, the law expressly so provides.

Sec. 12 of Rule 43 should therefore be interpreted as mandating that the appeal will not stay the award, judgment, final order or resolution unless the law directs otherwise.

Petitioner was charged administratively before the Ombudsman and accordingly the provisions of the Ombudsman Act should apply in his case. Section 68 of the Local Government Code only applies to administrative decisions rendered by the Office of the President or the appropriate Sanggunian against elective local government officials. Similarly, the provision in the Administrative Code of 1987 mandating execution pending review applies specifically to administrative decisions of the Civil Service Commission involving members of the Civil Service.

There is no basis in law for the proposition that the provisions of the Administrative Code of 1987 and the Local Government Code on execution pending review should be applied suppletorily to the provisions of the Ombudsman Act as there is nothing in the Ombudsman Act which provides for such suppletory application. Courts may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided or intended by the lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion. 28

And while in one respect, the Ombudsman Law, the Administrative Code of 1987 and the Local Government Code are in pari materia insofar as the three laws relate or deal with public officers, the similarity ends there. It is a principle in statutory construction that where there are two statutes that apply to a particular case, that which was specially designed for the said case must prevail over the other. 29 In the instant case, the acts attributed to petitioner could have been the subject of administrative disciplinary proceedings before the Office of the President under the Local Government Code or before the Office of the Ombudsman under the Ombudsman Act. Considering however, that petitioner was charged under the Ombudsman Act, it is this law alone which should govern his case.

Respondents, through the Office of the Solicitor General, argue that the ruling against execution pending review of the Ombudsman's decision grants a one-sided protection to the offender found guilty of misconduct in office and nothing at all to the government as the aggrieved party. The offender, according to respondents, can just let the case drag on until the expiration of his office or his reelection as by then, the case against him shall become academic and his offense, obliterated. As such, respondents conclude, the government is left without further remedy and is left helpless in its own fight against graft and corruption.

We find this argument much too speculative to warrant serious consideration. If it perceived that the fight against graft and corruption is hampered by the inadequacy of the provisions of the Ombudsman Act, the remedy lies not with this Court but by legislative amendment.

As regards the contention of the Office of the Ombudsman that under Sec. 13(8), Article XI of the 1987 Constitution, the Office of the Ombudsman is empowered to "(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law," suffice it to note that the Ombudsman rules of procedure, Administrative Order No. 07, mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary or fine equivalent to one month salary are still appealable and hence, not final and executory. Under these rules, which were admittedly promulgated by virtue of the rule-making power of the Office of the Ombudsman, the decision imposing a penalty of one year suspension without pay on petitioner Lapid is not immediately executory.

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G.R. No. 142261
June 29, 2000

GOVERNOR MANUEL M. LAPID, petitioner,
vs.
HONORABLE COURT OF APPEALS, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION, FACT-FINDING INTELLIGENCE BUREAU (FFIB) of the Office of the Ombudsman, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, respondents.