Saturday, January 26, 2019

Illegally dismissed or unjustly suspended public employees are entitled to back salaries.

See - http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/187858.htm


THE CIVIL SERVICE  COMMISSION vs. RICHARD G. CRUZ,  G.R. No. 187858, AUGUST 9, 2011.


"x x x.

THE COURTS RULING

We deny the petition for lack of merit.

The issue of entitlement to back salaries, for the period of suspension pending appeal,[13] of a government employee who had been dismissed but was subsequently exonerated is settled in our jurisdiction. The Courts starting point for this outcome is the no work-no pay principle public officials are only entitled to compensation if they render service. We have excepted from this general principle and awarded back salaries even for unworked days to illegally dismissed or unjustly suspended employees based on the constitutional provision that no officer or employee in the civil service shall be removed or suspended except for cause provided by law;[14] to deny these employees their back salaries amounts to unwarranted punishment after they have been exonerated from the charge that led to their dismissal or suspension.[15]
The present legal basis for an award of back salaries is Section 47, Book V of the Administrative Code of 1987.

Section 47. Disciplinary Jurisdiction. x x x.

(4) An appeal shall not stop the decision 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. (italics ours)

This provision, however, on its face, does not support a claim for back salaries since it does not expressly provide for back salaries during this period; our established rulings hold that back salaries may not be awarded for the period of preventive suspension[16] as the law itself authorizes its imposition so that its legality is beyond question.

To resolve the seeming conflict, the Court crafted two conditions before an employee may be entitled to back salaries: a) the employee must be found innocent of the charges and b) his suspension must be unjustified.[17] The reasoning behind these conditions runs this way: although an employee is considered under preventive suspension during the pendency of a successful appeal, the law itself only authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed period is unjustified and must be compensated.

The CSCs rigid and mechanical application of these two conditions may have resulted from a misreading of our rulings on the matter; hence, a look at our jurisprudence appears in order.

Basis for award of back salaries

The Court had the occasion to rule on the issue of entitlement to back salaries as early as 1941,[18] when Section 260 of the Revised Administrative Code of 1917 (RAC)[19] was the governing law. The Court held that a government employee, who was suspended from work pending final action on his administrative case, is not entitled to back salaries where he was ultimately removed due to the valid appointment of his successor. No exoneration or reinstatement, of course, was directly involved in this case; thus, the question of back salaries after exoneration and reinstatement did not directly arise. The Court, however, made the general statement that:

As a general proposition, a public official is not entitled to any compensation if he has not rendered any service, and the justification for the payment of salary during the period of suspension is that the suspension was unjustified or that the official was innocent. Hence, the requirement that, to entitle to payment of salary during suspension, there must be either reinstatement of the suspended person or exoneration if death should render reinstatement impossible.[20] (emphasis and underscoring ours)

In Austria v. Auditor General,[21] a high school principal, who was penalized with demotion, claimed payment of back salaries from the time of his suspension until his appointment to the lower position to which he was demoted. He argued that his later appointment even if only to a lower position of classroom teacher amounted to a reinstatement under Section 260 of the RAC. The Court denied his claim, explaining that the reinstatement under Section 260 of the RAC refers to the same position from which the subordinate officer or employee was suspended and, therefore, does not include demotional appointments. The word reinstatement was apparently equated to exoneration.

In the 1961 case of Gonzales v. Hon. Hernandez, etc. and Fojas[22] interpreting the same provision, the Court first laid down the requisites for entitlement to back salaries. Said the Court:

A perusal of the decisions of this Court[23] x x x show[s] that back salaries are ordered paid to an officer or an employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. In the case at bar, [the employee] was not completely exonerated, because although the decision of the Commissioner of Civil Service [ordering separation from service] was modified and [the employee] was allowed to be reinstated, the decision [imposed upon the employee the penalty of two months suspension without pay]. [emphasis and underscoring ours]

Obviously, no exoneration actually resulted and no back salary was due; the liability for the offense charged remained, but a lesser penalty was imposed.

In Villamor, et al. v. Hon. Lacson, et al.,[24] the City Mayor ordered the dismissal from the service of city employees after finding them guilty as charged. On appeal, however, the decision was modified by considering the suspension of over one year x x x, already suffered x x x [to be] sufficient punishment[25] and by ordering their immediate reinstatement to the service. The employees thereupon claimed that under Section 695 of the RAC, the punishment of suspension without pay cannot exceed two (2) months. Since the period they were not allowed to work until their reinstatement exceeded two months, they should be entitled to back salaries corresponding to the period in excess of two months. In denying the employees claim for back salaries, the Court held:

The fallacy of [the employees] argument springs from their assumption that the modified decision had converted the penalty to that of suspension. The modified decision connotes that although dismissal or resignation would be the proper penalty, the separation from work for the period until their reinstatement, would be deemed sufficient. Said decision did not, in the least, insinuate that suspension should have been the penalty.

x x x [T]he modified decision did not exonerate the petitioners. x x x And even if we consider the punishment as suspension, before a public official or employee is entitled to payment of salaries withheld, it should be shown that the suspension was unjustified or that the employee was innocent of the charges proffered against him.[26]

On the whole, these rulings left the application of the conditions for the award of back salaries far from clear. Jurisprudence did not strictly observe the requirements earlier enunciated in Gonzales as under subsequent rulings, the innocence of the employee alone served as basis for the award of back salaries.

The innocence of the employee as sole basis for an award of back salaries
In Tan v. Gimenez, etc., and Aguilar, etc.,[27] we ruled that the payment of back salary to a government employee, who was illegally removed from office because of his eventual exoneration on appeal, is merely incidental to the ordered reinstatement.

Tan was subsequently reiterated in Taala v. Legaspi, et al.,[28] a case involving an employee who was administratively dismissed from the service following his conviction in the criminal case arising from the same facts as in the administrative case. On appeal, however, he was acquitted of the criminal charge and was ultimately ordered reinstated by the Office of the President. Failing to secure his actual reinstatement, he filed a mandamus petition to compel his superiors to reinstate him and to pay his back salaries from the date of his suspension to the date of his actual reinstatement. We found merit in his plea and held:

[The employee] had been acquitted of the criminal charges x x x, and the President had reversed the decision x x x in the administrative case which ordered his separation from the service, and the President had ordered his reinstatement to his position, it results that the suspension and the separation from the service of the [employee] were thereby considered illegal. x x x.

x x x [In this case,] by virtue of [the Presidents order of reinstatement], [the employees] suspension and separation from the service x x x was thereby declared illegal, so that for all intents and purposes he must be considered as not having been separated from his office. The lower court has correctly held that the [employee] is entitled to back salaries.[29]

The Taala ruling was reiterated in Cristobal v. Melchor,[30] Tan, Jr. v. Office of the President,[31] De Guzman v. CSC[32] and Del Castillo v. CSC[33] - cases involving government employees who were dismissed after being found administratively liable, but who were subsequently exonerated on appeal.

In Garcia v. Chairman Commission on Audit,[34] the Court held that where the employee, who was dismissed after being found administratively liable for dishonesty, was acquitted on a finding of innocence in the criminal case (for qualified theft) based on the same acts for which he was dismissed the executive pardon granted him in the administrative case (in light of his prior acquittal) entitled him to back salaries from the time of his illegal dismissal up to his actual reinstatement.

The above situation should be distinguished from the case of an employee who was dismissed from the service after conviction of a crime and who was ordered reinstated after being granted pardon. We held that he was not entitled to back salaries since he was not illegally dismissed nor acquitted of the charge against him.[35]

Incidentally, under the Anti-Graft and Corrupt Practices Act,[36] if the public official or employee is acquitted of the criminal charge/s specified in the law, he is entitled to reinstatement and the back salaries withheld during his suspension, unless in the meantime administrative proceedings have been filed against him.

In Tan, Jr. v. Office of the President,[37] the Court clarified that the silence of Section 42 (Lifting of Preventive Suspension Pending Administrative Investigation) of the Civil Service Decree[38] on the payment of back salaries, unlike its predecessor,[39] is no reason to deny back salaries to a dismissed civil servant who was ultimately exonerated.

Section 42 of P.D. No. 807, however, is really not in point x x x [as] it does not cover dismissed civil servants who are ultimately exonerated and ordered reinstated to their former or equivalent positions. The rule in the latter instance, just as we have said starting with the case of Cristobal vs. Melchor is that when "a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held."[40]

These cited cases illustrate that a black and white observance of the requisites in Gonzales is not required at all times. The common thread in these cases is either the employees complete exoneration of the administrative charge against him (i.e., the employee is not found guilty of any other offense), or the employees acquittal of the criminal charge based on his innocence. If the case presented falls on either of these instances, the conditions laid down in Gonzales become the two sides of the same coin; the requirement that the suspension must be unjustified is automatically subsumed in the other requirement of exoneration.

Illegal suspension as sole basis for an award of back salaries

By requiring the concurrence of the two conditions, Gonzales apparently made a distinction between exoneration and unjustified suspension/dismissal. This distinction runs counter to the notion that if an employee is exonerated, the exoneration automatically makes an employees suspension unjustified. However, in Abellera v. City of Baguio, et al.,[41] the Court had the occasion to illustrate the independent character of these two conditions so that the mere illegality of an employees suspension could serve as basis for an award of back salaries.

Abellera, a cashier in the Baguio City Treasurers Office, was ordered dismissed from the service after being found guilty of dishonesty and gross negligence. Even before the period to appeal expired, the City of Baguio dismissed him from the service. On appeal, however, the penalty imposed on him was reduced to two months suspension, without pay although the appealed decision was affirmed in all other respects.

When the issue of Abelleras entitlement to back salaries reached the Court, we considered the illegality of Abelleras suspension - i.e.,from the time he was dismissed up to the time of his actual reinstatement to be a sufficient ground to award him back salaries.

The rule on payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed not only if he is found innocent of the charges which caused his suspension (Sec. 35, RA 2260), but also when the suspension is unjustified.

In the present case, upon receipt of the [Civil Service Commissioners] decision x x x finding [Abellera] guilty, but even before the period to appeal had expired, [the Baguio City officials] dismissed [Abellera] from the service and another one was appointed to replace him. [Abelleras] separation x x x before the decision of the Civil Service Commissioner had become final was evidently premature. [The Baguio City officials] should have realized that [Abellera] still had the right to appeal the Commissioner's decision to the Civil Service Board of Appeals within a specified period, and the possibility of that decision being reversed or modified.[42] As it did happen on such appeal x x x the penalty imposed by the Commissioner was reduced x x x to only 2 months suspension. And yet, by [the Baguio City officials] action, [Abellera] was deprived of work for more than 2 years. Clearly, Abelleras second suspension from office [i.e., from the time he was dismissed up to his actual reinstatement] was unjustified, and the payment of the salaries corresponding to said period is, consequently, proper.[43] (emphases and underscoring ours)

The import of the Abellera ruling was explained by the Court in the subsequent case of Yarcia v. City of Baguio[44] that involved substantially similar facts. The Court clarified that the award of back salaries in Abellera was based on the premature execution of the decision (ordering the employees dismissal from the service), resulting in the employees unjustified second suspension. Under the then Civil Service Rules, the Commissioner of Civil Service had the discretion to order the immediate execution of his decision in administrative cases in the interest of public service. Unlike in Abellera, this discretion was exercised in Yarcia; consequently, the employees separation from the service pending his appeal remained valid and effective until it was set aside and modified with the imposition of the lesser penalty.[45]

The unjustified second suspension mentioned in Abellera actually refers to the period when the employee was dismissed from the service up to the time of his actual reinstatement. Under our present legal landscape, this period refers to suspension pending appeal.[46]

In Miranda v. Commission on Audit,[47] the Court again had the occasion to consider the illegality of the suspension of the employee as a separate ground to award back salaries. Following the filing of several administrative charges against him, Engr. Lamberto Miranda was preventively suspended from June 2, 1978 to May 7, 1986. He was reinstated on May 22, 1986. On October 7, 1986, the administrative case against him was finally dismissed for lack of evidence. When his claim for back salaries (from the time he was preventively suspended up to his actual reinstatement) was denied by the Commission on Audit, he brought a certiorari petition with this Court.

In granting the petition, the Court ruled that since the law[48] limits the duration of preventive suspension to a fixed period, Engr. Mirandas suspension for almost eight (8) years is unreasonable and unjustified. Additionally, the Court observed that the dropping of the administrative case against Engr. Miranda for lack of evidence is even an eloquent manifestation that the suspension is unjustified.[49] The Court held:

This being so, Engineer Miranda is entitled to backwages during the period of his suspension as it is already settled in this jurisdiction that a government official or employee is entitled to backwages not only if he is exonerated in the administrative case but also when the suspension is unjustified.[50] (emphases and underscoring ours)

Jurisprudential definition of exoneration

The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if he was not exonerated of the charge against him. This is the Courts teaching in City Mayor of Zamboanga v. CA.[51] In this case, the employee was initially found guilty of disgraceful and immoral conduct and was given the penalty of dismissal by the City Mayor of Zamboanga. On appeal, however, the CA limited the employees guilt to improper conduct and correspondingly reduced the penalty to six-months suspension without pay with a stern warning that repetition of the same or similar offense will be dealt with more severely."[52] The CA also awarded him full backwages.[53]

We held that the CA erred in awarding back salaries by reiterating the principle that back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal.[54]

The Court had the occasion to explain what constitutes exoneration in Bangalisan v. Hon. CA,[55] the respondents cited case. In this case, the Secretary of Education found the public school teachers guilty as charged and imposed on them the penalty of dismissal. On appeal, the CSC affirmed the Secretarys ruling but reduced the penalty imposed to suspension without pay. However, the CSC found one of the teachers (Mariano) guilty only of violation of reasonable office rules and regulations, and only penalized her with reprimand. None of the petitioning public school teachers were awarded back salaries.

On appeal to this Court, we awarded back salaries to Mariano. We explained that since the factual premise of the administrative charges against him - i.e., his alleged participation in the illegal mass actions, and his suspension - was amply rebutted, then Mariano was in effect exonerated of the charges against him and was, thus, entitled to back salaries for the period of his suspension pending appeal.

With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the [CSC] will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct x x x [and] conduct prejudicial to the best interest of the service x x x for his participation in the mass actions x x x. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.

However, the [CSC], in the questioned resolution, made [the] finding that Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school or his intended absence and neither did he file an application for leave covering such absences.

x x x x

However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension.[56]

Bangalisan clearly laid down the principle that if the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser penalty remains the same. The employee found guilty of a lesser offense may only be entitled to back salaries when the offense actually committed does not carry the penalty of more than one month suspension or dismissal.[57]

Bangalisan reiterated that the payment of back salaries, during the period of suspension of a member of the civil service who is subsequently ordered reinstated, may be decreed only if the employee is found innocent of the charges which caused the suspension andwhen the suspension is unjustified. This pronouncement was re-echoed in Jacinto v. CA,[58] De la Cruz v. CA,[59] and Hon. Gloria v. CA.[60] Taking off from Bangalisan, the Court in De la Cruz categorically stated:

The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders x x x were commuted by the CSC to six (6) months suspension is already settled.

In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases.[61]

In Hon. Gloria, involving the same factual situation as Bangalisan, the CA awarded the public school teachers back salaries - for the period beyond the allowable period of preventive suspension - since they were ultimately exonerated. In affirming the CA, the Court distinguished preventive suspension from suspension pending appeal for the purpose of determining the extent of an employees entitlement to back salaries. The Court ruled that under Executive Order (E.O.) No. 292, there are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (i) preventive suspension pending investigation[62] and (ii) preventive suspension pending appeal;[63] compensation is due only for the period of preventive suspension pending appeal should the employee be ultimately exonerated.[64] Citing Floyd R. Mechem's A Treatise on the Law of Public Offices and Officers,[65] Hon. Gloriaruled:

Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified.[66] (emphases and underscoring ours)

A careful reading of these cases would reveal that a strict observance of the second condition for an award of back salaries becomes important only if the employee is not totally innocent of any administrative infraction. As previously discussed, where the employee is completely exonerated of the administrative charge or acquitted in the criminal case arising from the same facts based on a finding of innocence, the second requirement becomes subsumed in the first. Otherwise, a determination of the act/s and offense/s actually committed and of the corresponding penalty imposed has to be made.

Unjustified suspension
On the suspension/dismissal aspect, this second condition is met upon a showing that the separation from office is not warranted under the circumstances because the government employee gave no cause for suspension or dismissal. This squarely applies in cases where the government employee did not commit the offense charged, punishable by suspension or dismissal (total exoneration); or the government employee is found guilty of another offense for an act different from that for which he was charged.

Bangalisan, Jacinto and De la Cruz illustrate the application of the two conditions

Both the CA and the respondent applied Bangalisan to justify the award of back salaries. The CSC argues against this position with the claim that the rulings in Jacinto and De la Cruz, not Bangalisan, should apply. After due consideration, we see no reason why the cited rulings and their application should be pitted against one another; they essentially espouse the same conclusions after applying the two conditions for the payment of back salaries.

Bangalisan, Jacinto and De la Cruz all stemmed from the illegal mass actions of public school teachers in Metro Manila in 1990. The teachers were charged with grave misconduct, gross neglect of duty, and gross violation of civil service law, rules and regulations, among others. The then Secretary of Education found them guilty and dismissed them from the service. The CSC, on appeal, ordered the teachers reinstated, but withheld the grant of their back salaries. The CSC found the teachers liable for conduct prejudicial to the best interest of the service and imposed on them the penalty of suspension. The CSC reasoned that since the teachers were not totally exculpated from the charge (but were found guilty of a lesser offense), they could not be awarded back salaries.

When these cases reached the Court, the issue of the teachers entitlement to back salaries was raised. The teachers claimed that they were entitled to back salaries from the time of their dismissal or suspension until their reinstatement, arguing that they were totally exonerated from the charges since they were found guilty only of conduct prejudicial to the best interest of the service.

Under this factual backdrop, we applied the two conditions and distinguished between the teachers who were absent from their respective classes because they participated in the illegal mass action, on one hand, and the teachers who were absent for some other reason, on the other hand.

With respect to the teachers who participated in the illegal mass actions, we ruled that they were not entitled to back salaries since they were not exonerated. We explained that liability for a lesser offense, carrying a penalty less than dismissal, is not equivalent to exoneration. On the second condition, we ruled that their suspension is not unjustified since they have given a ground for their suspension i.e., the unjustified abandonment of their classes to the prejudice of their students, the very factual premise of the administrative charges against them for which they were suspended.

With respect to the teachers who were away from their classes but did not participate in the illegal strike, the Court awarded them back salaries, considering that: first, they did not commit the act for which they were dismissed and suspended; and second, they were found guilty of another offense, i.e., violation of reasonable office rules and regulations which is not penalized with suspension or dismissal. The Court ruled that these teachers were totally exonerated of the charge, and found their dismissal and suspension likewise unjustified since the offense they were found to have committed only merited the imposition of the penalty of reprimand.

These cases show the Courts consistent stand in determining the propriety of the award of back salaries. The government employees must not only be found innocent of the charges; their suspension must likewise be shown to be unjustified.

The Present Case

We find that the CA was correct in awarding the respondent his back salaries during the period he was suspended from work, following his dismissal until his reinstatement to his former position. The records show that the charges of grave misconduct and dishonesty against him were not substantiated. As the CSC found, there was no corrupt motive showing malice on the part of the respondent in making the complained utterance. Likewise, the CSC found that the charge of dishonesty was well refuted by the respondents evidence showing that he rendered overtime work on the days in question.

We fully respect the factual findings of the CSC especially since the CA affirmed these factual findings. However, on the legal issue of the respondents entitlement to back salaries, we are fully in accord with the CAs conclusion that the two conditions to justify the award of back salaries exist in the present case.

The first condition was met since the offense which the respondent was found guilty of (violation of reasonable rules and regulations) stemmed from an act (failure to log in and log out) different from the act of dishonesty (claiming overtime pay despite his failure to render overtime work) that he was charged with.

The second condition was met as the respondents committed offense merits neither dismissal from the service nor suspension (for more than one month), but only reprimand.

In sum, the respondent is entitled to back salaries from the time he was dismissed by the CMWD until his reinstatement to his former position - i.e., for the period of his preventive suspension pending appeal. For the period of his preventive suspension pending investigation, the respondent is not entitled to any back salaries per our ruling in Hon. Gloria.[67]

x x x."

Memo Order No. 89, S. 2003, of President Arroyo - authority of Executive Secretary to grant or deny Petitions for Executive Clemency for commutation or removal of administrative penalties/disabilities imposed upon officials in the Executive branch.

See - http://www.officialgazette.gov.ph/2003/02/27/memorandum-order-no-89-s-2003/


MALACAÑANG
MANILA

MEMORANDUM ORDER NO. 89

AUTHORIZING THE EXECUTIVE SECRETARY TO GRANT OR DENY PETITIONS FOR EXECUTIVE CLEMENCY INVOLVING ADMINISTRATIVE PENALTIES IMPOSED UPON PUBLIC OFFICIALS IN THE EXECUTIVE BRANCH

WHEREAS, the President, in the exercise of her power of supervision and control over all executive departments, exercises discretion to grant executive clemency involving administrative penalties imposed upon officials in the Executive branch;

WHEREAS, Book V, Title I, Subtitle A, Section 53 of the Administrative Code of 1987 states that “in meritorious cases and upon recommendation of the (Civil Service) Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service;”

WHEREAS, Book III, Title 3, Chapter 9, Section 27 (10) of the Administrative Code states that the Executive Secretary shall “exercise primary authority to sign papers ‘By authority of the President;'”

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby confirm the authority of Executive Secretary Alberto G. Romulo to grant or deny Petitions for Executive Clemency for commutation or removal of administrative penalties/disabilities imposed upon officials in the Executive branch.

This Memorandum Order shall take effect immediately.

DONE in the City of Manila, this 27th day of FEBRUARY, in the year of our Lord, two thousand and three.

(Sgd.) GLORIA MACAPAGAL-ARROYO

By the President:

(Sgd.) ALBERTO G. ROMULO
Executive Secretary


RESOURCES:

[PDF] Memorandum Order No. 89, February 27, 2003

Pardon in administrativecases does not generally result in automatic reinstatement. The offender has to apply for reappointment. He is not entitled to back wages.

See - http://www.csc.gov.ph/forum/forum/questions-available-remedies/119-grant-of-executive-clemency


"x x x.

Please be informed that as a matter of policy, we do not render opinions or rulings on issues that may eventually be the subject of a complaint or appeal.

However, it is worth emphasizing that it is firmly established that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing.

The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.


Meaning the grant of executive clemency does not carry with it the restoration of the CS eligibility unless expressly stated by the President and the period that he/she was out of the government service shall be considered as a gap from the service.


- Civil Service Commission Website Forum

x x x."



Pardon vs. amnesty; rule on application for executive clemency pending appeal; the necessity of a final judgment before parole or pardon could be extended.

See - https://www.lawphil.net/judjuris/juri1997/mar1997/gr_116512_1997.html


G.R. No. 116512 March 7, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  vs.
WILLIAM O. CASIDO @ "MARIO," and FRANKLIN A. ALCORIN @ "ARMAN," accused-appellants.



"x x x.

We agree with the Office of the Solicitor General. In Barrioquinto, 2 we stated as follows:

The theory of the respondents, supported by the dissenting opinion, is predicated on a wrong contention of the nature or character of an amnesty. Amnesty must be distinguished from pardon.

Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while amnesty is to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason it does "nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon," and it "in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" (article 36, Revised Penal Code). While amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (Emphasis supplied)

Accordingly, while the pardon in this case was void for having been extended during the pendency of the appeal or before conviction by final judgment and, therefore, in violation of the first paragraph of Section 19, Article VII of the Constitution, the grant of the amnesty, for which accused-appellants William Casido and Franklin Alcorin voluntarily applied under Proclamation No. 347, 3 was valid. This Proclamation was concurred in by both Houses of Congress in Concurrent Resolution No.12 adopted on 2 June 1994.

The release then of accused-appellants William Casido and Franklin Alcorin can only be justified by the amnesty, but not by the "pardon."

As to the "pardon," we find unsatisfactory the Explanation of the Secretariat of the Committee. It borders on the absurd that its members were unaware of the resolutions of this Court in People v. Hinlo 4 and People v.
Salle. 5 As early as 1991, this Court, in People v. Sepada, 6 cited in our Resolution of 30 July 1996 in this case, already stressed in no uncertain terms the necessity of a final judgment before parole or pardon could be extended. Even in their Comment of 28 August 1996, the Members of the Secretariat implied that they were all the time aware that a pardon could only be granted after conviction by final judgment; hence, they required from the lawyers of the applicants the filing with this Court of "motions for the withdrawal of the applicants' appeals." Thus, they cannot plead ignorance of this condition sine qua non to the grant of pardon. They should have demanded from the applicants the submission of proof of their compliance of the requirement before submitting to the President a favorable recommendation. That alone, at the very least, could have been the basis of a finding of good faith. In failing to observe due care in the performance of their duties, the Members of the Committee caused the President serious embarrassment and thus deserve an admonition.

x x x."

Executive clemency pending appeal - "We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal. Such proof may be in the form of a certification issued by the trial court or the appellate court, as the case may be. The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable. Accordingly those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement."

See - http://www.chanrobles.com/cralaw/1995decemberdecisions.php?id=1100


EN BANC

[G.R. No. 103567. December 4, 1995.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FRANCISCO SALLE, JR. Y GERCILLA @ "KA NOMOT," RICKY MENGOTE Y CUNTADO @ "KA RICKY/KA LIZA/KA JUN," and TEN JOHN DOES, Accused. FRANCISCO SALLE, JR., Y GERCILLA and RICKY MENGOTE Y CUNTADO, Accused-Appellants.


"x x x.

The reason the Constitutional Commission adopted the "conviction by final judgment" requirement, reviving in effect the original provision of the 1973 Constitution on the pardoning power, was, as expounded by Commissioner Napoleon Rama, to prevent the President from exercising executive power in derogation of the judicial power. 15

Indeed, an appeal brings the entire case within the exclusive jurisdiction of the appellate court. A becoming regard for the doctrine of separation of powers demands that such exclusive authority of the appellate court be fully respected and kept unimpaired. For truly, had not the present Constitution adopted the "conviction by final judgment" limitation, the President could, at any time, and even without the knowledge of the court, extend executive clemency to anyone whom he, in good faith or otherwise, believes to merit presidential mercy. It cannot be denied that under the Jones Law and the 1981 amendment to the 1973 Constitution on the pardoning power which did not require conviction, the President had unimpeded power to grant pardon even before the criminal case could be heard. And under the 1935 Constitution which required "conviction" only, the power could be exercised at any time after conviction and regardless of the pendency of the appeal. In either case, there could be the risk not only of a failure of justice but also of a frustration of the system of administration of justice in view of the derogation of the jurisdiction of the trial or appellate court. Where the President is not so prevented by the Constitution, not even Congress can impose any restriction to prevent a presidential folly. 16 Hence, nothing but a change in the constitutional provision consisting in the imposition of "conviction by final judgment" requirement can change the rule. The new Constitution did it.

Hence, before an appellant may be validly granted pardon, he must first ask for the withdrawal of his appeal, i.e., the appealed conviction must first be brought to finality.

Accordingly, while this Court, in its resolution of 21 March 1991 in People v. Pedro Sepada, 17 dismissed the appeal for having become moot and academic in view of the parole granted to the appellant, it explicitly declared the necessity of a final judgment before parole or pardon could be extended. Thus:

CONSIDERING THE FOREGOING, the COURT RESOLVED to DISMISS the appeal for having become moot and academic. To avoid any possible conflict with the judicial determination of pending appeals, the Court further DIRECTED the Board of Pardons and Parole to adopt a system which enables it to ascertain whether a sentence has become final and executory and has, in fact, been executed before acting on any application for parole or pardon. The Court Administrator shall coordinate with the Department of Justice on how this may be best achieved. (Emphasis supplied).

Recently, in its resolution of 31 January 1995 in People v. Hinlo, 18 this Court categorically declared to be "in clear violation of the law" the "practice of processing applications for pardon or parole despite pending appeals." This Court resolved therein as follows:

IN VIEW OF THE FOREGOING, in order to put a stop to the practice of processing applications for pardon and parole despite pending appeals which is in clear violation of the law, the Court Resolved to:chanrob1es virtual 1aw library

(1) REQUIRE Atty. Conrado H. Edig, counsel de parte of accused Bernardo Hinlo, Catalino Capin, Martin Hinlo and Cecerio Ongco, who were given pardon, to secure and file the withdrawal of the appeals of said accused within days from receipt of this Resolution;

(2) CALL the attention of the Presidential Committee to observe the proper procedure as required by law before granting bail, pardon or parole in cases before it; and

(3) REMIND the Board of Pardons and Parole about the Court’s directive in People v. Sepada case. (Emphasis supplied).

The above pronouncements of this Court in Sepada and in Hinlo may still be unheeded, either through deliberate disregard thereof or by reason of an erroneous application of the obiter dictum in Monsanto or of the ruling in Crisola. Hence, the need for decisive action on the matter.

And now on the instant case. Considering that appellant Ricky Mengote has not filed a motion to withdraw his appeal up to this date the conditional pardon extended to him should not have been enforced. Nonetheless, since he stands on the same footing as the accused-appellants in the Hinlo case, he may be freed from the full force, impact, and effect of the rule herein pronounced subject to the condition set forth below. This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the grantee’s appeal.

WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntado is hereby given thirty (30) days from notice hereof within which to secure from the latter the withdrawal of his appeal and to submit it to this Court. The conditional pardon granted the said appellant shall be deemed to take effect only upon the grant of such withdrawal. In case of non-compliance with this Resolution, the Director of the Bureau of Corrections must exert every possible effort to take back into his custody the said appellant, for which purpose he may seek the assistance of the Philippine National Police or the National Bureau of Investigation.

Let copies of this Resolution be furnished the Office of the President, the Department of Justice, the Board of Pardons and Parole and the Presidential Committee for the Grant of Bail, Release or Pardon.

x x x."



Executive clemency in administrative cases - "In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses."

See - https://www.lawphil.net/judjuris/juri1991/oct1991/gr_99031_1991.html


G.R. No. 99031 October 15, 1991

RODOLFO D. LLAMAS, petitioner, vs. EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III, respondents.


Mauricio Law Office for petitioner.
Ongkiko, Bucoy, Dizon & Associates for private respondent.


"x x x.

Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on Article VII, Section 19 of the Constitution which reads:

Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President may grant reprieves, commu tations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. (Emphasis supplied)


According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal cases, and no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in an administrative case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however, describes in his very own words, respondent governor as one who has been "convicted in an administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction" may be used either in a criminal case or in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536, We ruled:

For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively or ... criminally. In either case, his culpability must be established ...

It is also important to note that respondent govemor's Motion for Reconsideration filed on March 1, 1991 was withdrawn in his petition for the grant of executive clemency, which fact rendered the Resolution dated February 26, 1991 affirming the DLG Decision (which found respondent governor guilty of neglect of duty and/or abuse of authority and which suspended him for ninety (90) days) final.

Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain petitioner's view. In other words, if the law does not distinguish, so We must no distinguish. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses.


A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in administrative cases.

Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove administrative penalties or disabilities issued upon officers and employees, in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service."

During the deliberations of the Constitutional Commission, a subject of deliberations was the proposed amendment to Art. VII, Sec. 19 which reads as follows: "However, the power to grant executive clemency for violation of corrupt practices laws may be limited by legislation."The Constitutional Commission, however, voted to remove the amendment, since it was in derogation of the powers of the President. As Mr. Natividad stated:

I am also against this provision which will again chip more powers from the President. In case of other criminals convicted in our society we extend probation to them while in this case, they have already been convicted and we offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them by the President. If we still close this avenue to them, they would be prejudiced even worse than the murderers and the more vicious killers in our society ....

The proposal was primarily intended to prevent the President from protecting his cronies. Manifestly, however, the Commission preferred to trust in the discretion of Presidents and refrained from putting additional limitations on his clemency powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-525)

It is evident from the intent of the Constitutional Commission, therefore, that the President's executive clemency powers may not be limited in terms of coverage, except as already provided in the Constitution, that is, "no pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favorable recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If those already adjudged guilty criminally in court may be pardoned, those adjudged guilty administratively should likewise be extended the same benefit.

x x x."



Thursday, January 3, 2019

Judicial Conservatism in a Liberal Democracy

Unjust Justice? - Children in New York can be jailed as adults and held in solitary confinement for years at a time. Dateline investigates the impact and asks if it’s effectively a life sentence.

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How to Rig a Majority Vote

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How to Get Innocent People Out of Prison

Critical Thinking Basics - Fallacies - Dr. Gregory B. Sadler

See - https://www.youtube.com/playlist?list=PLy91AvVMEx_9q5dUC_w2AFzaS-qBN3mEg


Critical Thinking Basics - Fallacies
32 videos 17,338 views Last updated on Aug 23, 2015



Dr. Gregory B. Sadler

Critical Thinking, Logic, and Argumentation (ReasonIO)



1

20:20


Critical Thinking: Just What Is a Fallacy?
Critical Thinking, Logic, and Argumentation (ReasonIO)



2

16:56


Critical Thinking: The Fallacy of Composition
Critical Thinking, Logic, and Argumentation (ReasonIO)



3

12:05


Critical Thinking: The Fallacy of Division
Critical Thinking, Logic, and Argumentation (ReasonIO)



4

18:15


Critical Thinking: The Fallacy of Slippery Slope
Critical Thinking, Logic, and Argumentation (ReasonIO)



5

21:09


Critical Thinking: The Fallacy of Straw Man
Critical Thinking, Logic, and Argumentation (ReasonIO)



6

19:47


Critical Thinking: The Fallacy of Appeal To Popularity
Critical Thinking, Logic, and Argumentation (ReasonIO)



7

21:55


Critical Thinking: The Fallacy of Appeal to Tradition
Critical Thinking, Logic, and Argumentation (ReasonIO)



8

22:07


Critical Thinking: The Fallacy of Appeal to Common Practice
Critical Thinking, Logic, and Argumentation (ReasonIO)



9

21:05


Critical Thinking: The Fallacy of Argument by Cliche
Critical Thinking, Logic, and Argumentation (ReasonIO)



10

22:26


Critical Thinking: The Fallacy of Appeal to Exclusivity
Critical Thinking, Logic, and Argumentation (ReasonIO)



11

21:35


Critical Thinking: The Fallacy of Appeal to Novelty
Critical Thinking, Logic, and Argumentation (ReasonIO)



12

22:57


Critical Thinking: The Fallacy of Argument From Authority
Critical Thinking, Logic, and Argumentation (ReasonIO)



13

28:27


Critical Thinking: The Fallacy of Inflation of Conflict
Critical Thinking, Logic, and Argumentation (ReasonIO)



14

22:04


Critical Thinking: The Fallacy of Argument From Ignorance
Critical Thinking, Logic, and Argumentation (ReasonIO)



15

17:11


Critical Thinking: The Fallacy of Argument From Incredulity
Critical Thinking, Logic, and Argumentation (ReasonIO)



16

20:22


Critical Thinking: The Fallacy of Argument from Outrage
Critical Thinking, Logic, and Argumentation (ReasonIO)



17

24:49


Critical Thinking: The Fallacy of Appeal To Anger
Critical Thinking, Logic, and Argumentation (ReasonIO)



18

22:32


Critical Thinking: The Fallacy of Appeal to Vanity
Critical Thinking, Logic, and Argumentation (ReasonIO)



19

17:52


Critical Thinking: The Fallacy of Appeal to Fear
Critical Thinking, Logic, and Argumentation (ReasonIO)



20

20:49


Critical Thinking: The Fallacy of Appeal to Pity
Critical Thinking, Logic, and Argumentation (ReasonIO)



21

19:50


Critical Thinking: The Fallacy of Wishful Thinking
Critical Thinking, Logic, and Argumentation (ReasonIO)



22

19:46


Critical Thinking: The Fallacy of Peer Pressure
Critical Thinking, Logic, and Argumentation (ReasonIO)



23

21:59


Critical Thinking: The Fallacy of Scapegoating
Critical Thinking, Logic, and Argumentation (ReasonIO)



24

17:13


Critical Thinking: The Fallacy of Ad Hominem (Abusive)
Critical Thinking, Logic, and Argumentation (ReasonIO)



25

17:48


Critical Thinking: The Fallacy of Ad Hominem (Circumstantial)
Critical Thinking, Logic, and Argumentation (ReasonIO)



26

20:42


Critical Thinking: The Genetic Fallacy
Critical Thinking, Logic, and Argumentation (ReasonIO)



27

17:51


Critical Thinking: The Fallacy of Two Wrongs Make a Right
Critical Thinking, Logic, and Argumentation (ReasonIO)



28

18:42


Critical Thinking: The Fallacy of Ad Hominem (Inconsistency)
Critical Thinking, Logic, and Argumentation (ReasonIO)



29

16:31


Critical Thinking: The Fallacy of Ad Hominem (Guilt By Association)
Critical Thinking, Logic, and Argumentation (ReasonIO)




30

18:36


Critical Thinking: The Fallacy of Appeal to Ridicule
Critical Thinking, Logic, and Argumentation (ReasonIO)



31

17:17


Critical Thinking: The Fallacy of Begging the Question
Critical Thinking, Logic, and Argumentation (ReasonIO)



32

16:21


Critical Thinking: The Fallacy of Circular Argument
Critical Thinking, Logic, and Argumentation (ReasonIO)
























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In Pursuit of Liberty

See - https://www.youtube.com/playlist?list=PLAYxecbGotUyOGDXLw2M4NR4uK6WrAFbt


In Pursuit of Liberty

19 videos 34,694 views Last updated on Dec 11, 2018

In this series we promote the pursuit of liberty and individual freedom.



Academy of Ideas



1


7:51


How We Enslave Ourselves
Academy of Ideas



2


8:54


Why We Can’t Vote Our Way to Freedom
Academy of Ideas



3


9:29


Political Authority - An Examination
Academy of Ideas



4


8:54


Why We Can’t Vote Our Way to Freedom
Academy of Ideas



5


8:43


Aldous Huxley and Brave New World: The Dark Side of Pleasure
Academy of Ideas



6


7:38


George Orwell and 1984: How Freedom Dies
Academy of Ideas



7


9:42


The Individual vs. Tyranny
Academy of Ideas



8


12:37


Public Schools, the Fixation of Belief, and Social Control
Academy of Ideas



9


9:59


Fear and Social Control
Academy of Ideas



10


10:52


Democracy and the Road to Tyranny
Academy of Ideas



11


10:34


Spontaneous Order vs. Centralized Control
Academy of Ideas



12


7:49


Collectivism and Individualism
Academy of Ideas



13


11:10


John Stuart Mill - On Liberty
Academy of Ideas



14


9:32


Frédéric Bastiat - The Law
Academy of Ideas



15


11:26


Introduction to Propaganda
Academy of Ideas



16


10:31


Decentralization and Freedom
Academy of Ideas



17


12:33


The Psychology of Obedience and The Virtue of Disobedience
Academy of Ideas




18


8:54


The Role of Ideas in History
Academy of Ideas



19


8:04


Carl Jung, the Shadow, and the Dangers of Psychological Projection
Academy of Ideas