SPECIAL THIRD DIVISION

HON. WALDO Q. FLORES, in his

capacity as Senior Deputy Executive
Secretary in the Office of the
President, HON. ARTHUR P.
AUTEA, in his capacity as Deputy
Executive Secretary in the Office of
the President, and the
PRESIDENTIAL ANTI-GRAFT
COMMISSION (PAGC),
Petitioners,

G.R. No. 170146

Present:
CARPIO MORALES, J.,
Chairperson,
VELASCO, JR.,
DEL CASTILLO,
VILLARAMA, JR., and
SERENO, JJ.

- versus Promulgated:
ATTY. ANTONIO F.
MONTEMAYOR,
June 8, 2011
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION
VILLARAMA, JR., J.:
This resolves the motion for reconsideration of our Decision dated August 25, 2010
setting aside the October 19, 2005 Decision of the Court of Appeals and reinstating
the Decision dated March 23, 2004 of the Office of the President in O.P. Case No.
03-1-581, which found the respondent administratively liable for failure to declare
in his 2001 and 2002 Sworn Statement of Assets and Liabilities (SSAL) two
expensive cars registered in his name, in violation of Section 7, Republic Act
(R.A.) No. 3019 in relation to Section 8 (A) of R.A. No. 6713. The OP adopted the
findings and recommendations of the Presidential Anti-Graft Commission (PAGC),
including the imposition of the penalty of dismissal from service on respondent,
with all accessory penalties.
The motion is anchored on the following grounds:

1. Respondent was subjected to two (2) administrative/criminal Investigations

equivalently resulting in violation of his constitutional right against double
jeopardy.
2. Who to follow between conflicting decisions of two (2) government agencies
involving the same facts and issues affecting the rights of the Respondent.
3. Respondents constitutional right to due process was violated.
4. Penalties prescribed by the Honorable Court is too harsh and severe on the
alleged offense committed/omitted.[1]

On the first ground, the Court finds it bereft of merit. Respondent asserts that since
the PAGC charge involving non-declaration in his 2001 and 2002 SSAL was
already the subject of investigation by the Ombudsman in OMB-C-C-04-0568LSC, along with the criminal complaint for unexplained wealth, the former can no
longer be pursued without violating the rule on double jeopardy.
Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent
court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when
the defendant was convicted or acquitted, or the case was dismissed or otherwise
terminated without the express consent of the accused.[2] We have held that none of
these requisites applies where the Ombudsman only conducted a preliminary
investigation of the same criminal offense against the respondent public officer.
[3]
The dismissal of a case during preliminary investigation does not constitute
double jeopardy, preliminary investigation not being part of the trial.[4]
With respect to the second ground, respondent underscores the dismissal by the
Ombudsman of the criminal and administrative complaints against him, including
the charge subject of the proceedings before the PAGC and OP. It is argued that the
Office of the Ombudsman as a constitutional body, pursuant to its mandate under
R.A. No. 6770, has primary jurisdiction over cases cognizable by the
Sandiganbayan, as against the PAGC which is not a constitutional body but a mere
creation of the OP. Under said law, it is the Ombudsman who has disciplinary
authority over all elective and appointive officials of the government, such as
herein respondent.
The argument is untenable.

The same wrongful act committed by the public officer can subject him to civil,
administrative and criminal liabilities. We held in Tecson v. Sandiganbayan[5]:
[I]t is a basic principle of the law on public officers that a public official or
employee is under a three-fold responsibility for violation of duty or for a
wrongful act or omission. This simply means that a public officer may be held
civilly, criminally, and administratively liable for a wrongful doing. Thus, if such
violation or wrongful act results in damages to an individual, the public officer
may be held civilly liable to reimburse the injured party. If the law violated
attaches a penal sanction, the erring officer may be punished criminally. Finally,
such violation may also lead to suspension, removal from office, or
other administrative sanctions. This administrative liability is separate and distinct
from the penal and civil liabilities. (Italics in the original.)

Dismissal of a criminal action does not foreclose institution of an

administrative proceeding against the same respondent, nor carry with it the relief
from administrative liability.[6] Res judicata did not set in because there is no
identity of causes of action. Moreover, the decision of the Ombudsman dismissing
the criminal complaint cannot be considered a valid and final judgment. On the
criminal complaint, the Ombudsman only had the power to investigate and file the
appropriate case before the Sandiganbayan.[7]
In the analogous case of Montemayor v. Bundalian,[8] this Court ruled:
Lastly, we cannot sustain petitioners stance that the dismissal of
similar charges against him before the Ombudsman rendered the
administrative case against him before the PCAGC moot and academic. To
be sure, the decision of the Ombudsman does not operate as res judicata in
the PCAGC case subject of this review. The doctrine of res judicata applies
only to judicial or quasi-judicial proceedings, not to the exercise of administrative
powers. Petitioner was investigated by the Ombudsman for his possible criminal
liability for the acquisition of the Burbank property in violation of the Anti-Graft
and Corrupt Practices Act and the Revised Penal Code. For the same alleged
misconduct, petitioner, as a presidential appointee, was investigated by the
PCAGC by virtue of the administrative power and control of the President over
him. As the PCAGCs investigation of petitioner was administrative in nature, the
doctrine of res judicata finds no application in the case at bar. (Emphasis
supplied.)

Respondent argues that it is the Ombudsman who has primary jurisdiction

over the administrative complaint filed against him. Notwithstanding the
consolidation of the administrative offense (non-declaration in the SSAL) with the

criminal complaints for unexplained wealth (Section 8 of R.A. No. 3019) and also
for perjury (Article 183, Revised Penal Code, as amended) before the Office of the
Ombudsman, respondents objection on jurisdictional grounds cannot be sustained.
Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman
to act promptly on complaints filed in any form or manner against public officials
or employees of the Government, or any subdivision, agency, instrumentality
thereof, including government-owned or controlled corporations. Under Section
13, Article XI, the Ombudsman is empowered to conduct investigations on his own
or upon complaint by any person when such act appears to be illegal, unjust,
improper, or inefficient. He is also given broad powers to take the appropriate
disciplinary actions against erring public officials and employees.
The investigative authority of the Ombudsman is defined in Section 15 of
R.A. No. 6770:
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman
shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee, office or
agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of Government, the investigation of
such cases;
x x x x (Emphasis supplied.)

Such jurisdiction over public officers and employees, however, is not

exclusive.
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies, such as the PCGG and judges
of municipal trial courts and municipal circuit trial courts. The power to conduct
preliminary investigation on charges against public employees and officials is
likewise concurrently shared with the Department of Justice. Despite the passage
of the Local Government Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the local Sanggunians to
investigate complaints against local elective officials.[9] (Emphasis supplied.)

Respondent
who
is
a
presidential
appointee
is
under
the disciplinary authority of the OP. Executive Order No. 12 dated April 16, 2001
created the PAGC which was granted the authority to investigate presidential and
also non-presidential employees who may have acted in conspiracy or may have
been involved with a presidential appointee or ranking officer mentioned x x x.
[10]
On this score, we do not agree with respondent that the PAGC should have
deferred to the Ombudsman instead of proceeding with the administrative
complaint in view of the pendency of his petition for certiorari with the CA
challenging the PAGCs jurisdiction. Jurisdiction is a matter of law. Jurisdiction
once acquired is not lost upon the instance of the parties but continues until the
case is terminated.[11]
It may be recalled that at the time respondent was directed to submit his
counter-affidavit under the Ombudsmans Order dated March 19, 2004, the PAGC
investigation had long commenced and in fact, the PAGC issued an order directing
respondent to file his counter-affidavit/verified answer as early as May 19,
2003. The rule is that initial acquisition of jurisdiction by a court of concurrent
jurisdiction divests another of its own jurisdiction. [12] Having already taken
cognizance of the complaint against the respondent involving non-declaration in
his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction over respondents
administrative case notwithstanding the subsequent filing of a supplemental
complaint before the Ombudsman charging him with the same violation.
As to the third ground raised by respondent, we find no merit in his
reiteration of the alleged gross violation of his right to due process. Records bear
out that he was given several opportunities to answer the charge against him and
present evidence on his defense, which he stubbornly ignored despite repeated
warnings that his failure to submit the required answer/counter-affidavit and
position paper with supporting evidence shall be construed as waiver on his part of
the right to do so.
The essence of due process in administrative proceedings is the opportunity
to explain ones side or seek a reconsideration of the action or ruling complained of.
As long as the parties are given the opportunity to be heard before judgment is
rendered, the demands of due process are sufficiently met. [13] What is offensive to
due process is the denial of the opportunity to be heard. [14] This Court has
repeatedly stressed that parties who choose not to avail themselves of the
opportunity to answer charges against them cannot complain of a denial of due
process.[15] Having persisted in his refusal to file his pleadings and evidence before

the PAGC, respondent cannot validly claim that his right to due process was
violated.
In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin,
concurred with the CAs finding that respondents right to due process was violated
by the unilateral investigation conducted by the PAGC which did not furnish the
respondent with a copy of the prejudicial PAGC resolution. The dissent also agreed
with the CAs observation that there was a rush on the part of the PAGC to find the
respondent guilty of the charge. This was supposedly manifested in the issuance by
the PAGC of its resolution even without taking into consideration any explanation
and refutation of the charges that he might make, and even before the CA could
finally resolve his suit to challenge the PAGCs jurisdiction to investigate him. On
the other hand, the dissent proposed that the non-submission by respondent of his
counter-affidavit or verified answer as directed by the PAGC should not be taken
against him. Respondents refusal was not motivated by bad faith, considering his
firm belief that PAGC did not have jurisdiction to administratively or disciplinarily
investigate him.
We do not share this view adopted by the dissent.
Records reveal that on August 26, 2003, the CA already rendered a decision
in CA-G.R. SP No. 77285 dismissing respondents petition challenging the
jurisdiction of the PAGC. Respondents motion for reconsideration was likewise
denied by the CA. Upon elevation to this Court via a petition for review on
certiorari (G.R. No. 160443), the petition suffered the same fate. Under the First
Divisions Resolution dated January 26, 2004, the petition was denied for failure of
the petitioner (respondent) to show that the CA committed any reversible error in
the assailed decision and resolution. Said resolution became final and executory
on April 27, 2004. Thus, at the time respondent submitted his counter-affidavit
before the Ombudsman on May 21, 2004, there was already a final resolution of
his petition challenging the PAGCs investigative authority.
On the other hand, the PAGC submitted to the OP its September 1,
2003 resolution finding respondent guilty as charged and recommending that he be
dismissed from the service, after the expiration of the 60-day temporary restraining
order issued on June 23, 2003 by the CA in CA-G.R. SP No. 77285. The OP
rendered its Decision adopting the PAGCs findings and recommendation on March
23, 2004. As thus shown, a period of ten (10) months had elapsed from the time

respondent was directed to file his counter-affidavit or verified answer to the

administrative complaint filed against him, up to the rendition of the OPs
decision. It cannot therefore be said that the PAGC and OP proceeded with undue
haste in determining respondents administrative guilt.
Still on respondents repeated claim that he was denied due process, it must
be noted that when respondent received a copy of the OP Decision dated March 23,
2004, his petition for review filed in this Court assailing the CAs dismissal of CAG.R. SP No. 77285 was already denied under Resolution dated January 26, 2004.
However, despite the denial of his petition, respondent still refused to recognize
PAGCs jurisdiction and continued to assail the same before the CA in CA-G.R. SP
No. 84254, a petition for review under Rule 43 from the OPs March 23, 2004
Decision and May 13, 2004 Resolution.[16] In any event, respondent was served
with a copy of the OP Decision, was able to seek reconsideration of the said
decision, and appeal the same to the CA.
We also find nothing irregular in considering the investigation terminated
and submitting the case for resolution based on available evidence upon failure of
the respondent to file his counter-affidavit or answer despite giving him ample
opportunity to do so. This is allowed by the Rules of Procedure of the PAGC. The
PAGC is also not required to furnish the respondent and complainant copy of its
resolution.
The dissent of Justice Bersamin assails the OPs complete reliance on the
PAGCs findings and recommendation which constituted a gross violation of
administrative due process as set forth in Ang Tibay v. Court of Industrial
Relations[17]. Among others, it is required that [T]he tribunal or any of its judges
must act on its or his own independent consideration of the facts and the law of the
controversy, and not simply accept the views of a subordinate in arriving at a
decision. Justice Bersamin thus concludes that the OP should have itself reviewed
and appreciated the evidence presented and independently considered the facts and
the law of the controversy. It was also pointed out that the OPs statement that the
respondents arguments in his Motion for Reconsideration With Motion For Leave
To Admit Explanation/Refutation of Complaint were a mere reiteration of matters
previously considered, was a patent untruth.
We disagree.

The OP decision, after quoting verbatim the findings and recommendation of

the PAGC, adopted the same with a brief statement preceding the dispositive
portion:
After a circumspect study of the case, this Office fully agrees with the
recommendation of PAGC and the legal premises as well as the factual findings
that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL
high-priced vehicles in breach of the prescription of the relevant provisions of RA
No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample
opportunity to explain his failure, but he opted to let the opportunity pass by.[18]

The relevant consideration is not the brevity of the above disquisition

adopting fully the findings and recommendation of the PAGC as the investigating
authority. It is rather the fact that the OP is not a court but an administrative body
determining the liability of respondent who was administratively charged, in the
exercise of its disciplinary authority over presidential appointees.
In Solid Homes, Inc. v. Laserna,[19] this Court ruled that the rights of parties
in an administrative proceedings are not violated by the brevity of the decision
rendered by the OP incorporating the findings and conclusions of the Housing and
Land Use Regulatory Board (HLURB), for as long as the constitutional
requirement of due process has been satisfied. Thus:
It must be stated that Section 14, Article VIII of the 1987 Constitution
need not apply to decisions rendered in administrative proceedings, as in the
case a[t] bar. Said section applies only to decisions rendered in judicial
proceedings. In fact, Article VIII is titled Judiciary, and all of its provisions have
particular concern only with respect to the judicial branch of
government. Certainly, it would be error to hold or even imply that decisions of
executive departments or administrative agencies are oblige[d] to meet the
requirements under Section 14, Article VIII.
The rights of parties in administrative proceedings are not violated as
long as the constitutional requirement of due process has been satisfied. In the
landmark case of Ang Tibay v. CIR, we laid down the cardinal rights of parties in
administrative proceedings, as follows:
1) The right to a hearing, which includes the right to present ones
case and submit evidence in support thereof.
2) The tribunal must consider the evidence presented.
3) The decision must have something to support itself.
4) The evidence must be substantial.

5) The decision must be rendered on the evidence presented at

the hearing, or at least contained in the record and disclosed to
the parties affected.
6) The tribunal or body or any of its judges must act on its or his
own independent consideration of the law and facts of the
controversy and not simply accept the views of a subordinate in
arriving at a decision.
7) The board or body should, in all controversial question, render
its decision in such a manner that the parties to the proceeding
can know the various issues involved, and the reason for the
decision rendered.
As can be seen above, among these rights are the decision must be
rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected; and that the decision be rendered in
such a manner that the parties to the proceedings can know the various issues
involved, and the reasons for the decisions rendered. Note that there is no
requirement in Ang Tibay that the decision must express clearly and distinctly the
facts and the law on which it is based. For as long as the administrative
decision is grounded on evidence, and expressed in a manner that sufficiently
informs the parties of the factual and legal bases of the decision, the due
process requirement is satisfied.
At bar, the Office of the President apparently considered the Decision of
HLURB as correct and sufficient, and said so in its own Decision. The brevity of
the assailed Decision was not the product of willing concealment of its factual
and legal bases. Such bases, the assailed Decision noted, were already contained
in the HLURB decision, and the parties adversely affected need only refer to the
HLURB Decision in order to be able to interpose an informed appeal or action for
certiorari under Rule 65.
xxxx
Accordingly, based on close scrutiny of the Decision of the Office of the
President, this Court rules that the said Decision of the Office of the President
fully complied with both administrative due process and Section 14, Article VIII
of the 1987 Philippine Constitution.
The Office of the President did not violate petitioners right to due process
when it rendered its one-page Decision. In the case at bar, it is safe to conclude
that all the parties, including petitioner, were well-informed as to how the
Decision of the Office of the President was arrived at, as well as the facts, the
laws and the issues involved therein because the Office of the President attached
to and made an integral part of its Decision the Decision of the HLURB Board of
Commissioners, which it adopted by reference. If it were otherwise, the petitioner
would not have been able to lodge an appeal before the Court of Appeals and

make a presentation of its arguments before said court without knowing the facts
and the issues involved in its case.[20](Emphasis supplied.)

Since respondent repeatedly refused to answer the administrative charge

against him despite notice and warning by the PAGC, he submitted his evidence
only after an adverse decision was rendered by the OP, attaching the same to his
motion for reconsideration. That the OP denied the motion by sustaining the
PAGCs findings without any separate discussion of respondents arguments and
belatedly submitted evidence only meant that the OP found the same lacking in
merit and insufficient to overturn its ruling on respondents administrative liability.
On the fourth ground cited by the respondent, we maintain that the penalty
of dismissal from the service is justified as no acceptable explanation was given for
the non-declaration of the two expensive cars in his 2001 and 2002 SSAL.
Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the
law proven in a proper administrative proceeding shall be sufficient cause for
removal or dismissal of a public official or employee, even if no criminal
prosecution is instituted against him. Respondents deliberate attempt to evade the
mandatory disclosure of all assets acquired during the period covered was evident
when he first claimed that the vehicles were lumped under the entry
Machineries/Equipment or still mortgaged, and later averred that these were
already sold by the end of the year covered and the proceeds already spent.
Under this scheme, respondent would have acquired as many assets never to
be declared at anytime. Such act erodes the function of requiring accuracy of
entries in the SSAL which must be a true and detailed statement. It undermines the
SSAL as the means to achieve the policy of accountability of all public officers and
employees in the government through which the public are able to monitor
movement in the fortune of a public official; [as] a valid check and balance
mechanism to verify undisclosed properties and wealth.[21]
IN VIEW OF THE FOREGOING, the motion for reconsideration
is DENIED WITH FINALITY.
Let entry of judgment be made in due course.
SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR.

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

AT T E S TAT I O N
I attest that the conclusions in the above Resolution had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

CONCHITA CARPIO MORALES

Associate Justice

Chairperson, Third Division

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Resolution had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

Designated Additional Member per Raffle dated April 12, 2011.

Designated Additional Member per Raffle dated May 6, 2011.
[1]
Rollo, p. 477.
[2]
Almario v. Court of Appeals, G.R. No. 127772, March 22, 2001, 355 SCRA 1, 7.
[3]
Apolinario v. Flores, G.R. No. 152780, January 22, 2007, 512 SCRA 113, 122.
[4]
Trinidad v. Office of the Ombudsman, G.R. No. 166038, December 4, 2007, 539 SCRA 415, 424, citing Vincoy v.
Court of Appeals, G.R. No. 156558, June 14, 2004, 432 SCRA 36, 40.
[5]
G.R. No. 123045, November 16, 1999, 318 SCRA 80, 87-88.
[6]
Office of the Court Administrator v. Enriquez, A.M. No. P-89-290, January 29, 1993, 218 SCRA 1, 10; Office of
the Court Administrator v. Caete, A.M. No. P-91-621, November 10, 2004, 441 SCRA 512, 520.
[7]
Apolinario v. Flores, supra note 3.
[8]
G.R. No. 149335, July 1, 2003, 405 SCRA 264, 272-273.
[9]
Office of the Ombudsman v. Galicia, G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339, citing Panlilio v.
Sandiganbayan, G.R. No. 92276, June 26, 1992, 210 SCRA 421; Cojuangco, Jr. v. Presidential Commission on
Good Government, G.R. Nos. 92319-20, October 2, 1990, 190 SCRA 226; Honasan II v. The Panel of
Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April 13, 2004, 427 SCRA 46;
and Hagad v. Gozo-Dadole, G.R. No. 108072, December 12, 1995, 251 SCRA 242.
[10]
Sec. 4 (b).
[11]
Office of the Ombudsman v. Estandarte, G.R. No. 168670, April 13, 2007, 521 SCRA 155, 173,
citing Deltaventures Resources, Inc. v. Hon. Cabato, 384 Phil. 252, 261 (2000).
[12]
See Panlilio v. Salonga, G.R. No. 113087, June 27, 1994, 233 SCRA 476, 482.
[13]
Medina v. Commission on Audit (COA), G.R. No. 176478, February 4, 2008, 543 SCRA 684, 696-697,
citing Montemayor v. Bundalian, 453 Phil. 158, 165 (2003).
[14]
Octava v. Commission on Elections, G.R. No. 166105, March 22, 2007, 518 SCRA 759, 764, citing Garments
and Textile Export Board v. Court of Appeals, G.R. Nos. 114711 & 115889, February 13, 1997, 268 SCRA 258,
299.
[15]
Garcia v. Pajaro, G.R. No. 141149, July 5, 2002, 384 SCRA 122, 138.
[16]
Rollo, pp. 100-104.
[17]
69 Phil. 635 (1940).

[18]

Rollo, p. 90.
G.R. No. 166051, April 8, 2008, 550 SCRA 613.
[20]
Id. at 626-627 and 629.
[21]
Ombudsman v. Valeroso, G.R. No. 167828, April 2, 2007, 520 SCRA 140, 150.
[19]