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REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

Quezon City

SPECIAL THIRD DIVISION

PEOPLE OFPHILIPPINES,

Criminal Cases Nos. SB-ll-CRM-0379 and 0380For. Usurpation of Official

Functions under Article177 of the Revised PenalCode

ROSITO T. VELARDE,Accused. CABOTAJE-TANG, P.J.,

ChairpersonFERNANDEZ, SJ., 1 J.QUIROZ,2 J.

This resolves the prosecution's "Motion for Reconsideration(of the Resolution dated 21 February 2017)" dated March 3,2017which assails the Court's Resolution promulgated on February21,2017, acquitting accused Rosita T. Velarde 07/-71 J. Sarah Jane T. Fernandez, as the senior member of the Third Division, is r lacing. Martires who hasbeen appointed to the Supreme Court.2 Signatory to the assailed Resolution promulgated on February 21,2017

RESOLUTIONPeople vs. VelardeCriminal Cases Nos. SB-ll-CRM-0379 and 0380Page 12

usurpation of officialfunctions under Article 177 of the RevisedPenal Code.3

In its subject motion, the prosecution contends that theCourt exceeded its jurisdiction amounting to grave abuse ofdiscretion when it reversed its Decision promulgated on July 4,2016 and acquitted the accused in its assailed Resolution. Itargues that it had proved beyond reasonable doubt all theelements of usurpation of official functions as correctly foundby the Court in its Decision promulgated on July 4, 2016. Italso argues that the Court committed grave error when it laterappreciated in favor of the accused his claims of "lack ofeducation" and "good faith" contrary to the evidence on recordand despite the fact that the accused failed to adduce sufficientevidence to support said claims. The prosecution invokes thedoctrine of operative fact and cites Hacienda Luisita,Incorporated vs. Presidential Agrarian Reform Council.4According to the prosecution, the ruling of the Court ofAppealsdeclaring void the suspension order for the accused producedeffects that cannot be ignored, i.e. that during the three-monthsuspension, the accused signed the reimbursement vouchersfor travel of the three (3)Sangguniang Bayan members and thatof his secretary Jose ArielAbordowithout authority to do so.

The accused filed his Comment/Objection (To Prosecution'sMotion for Reconsideration) dated March 24, 2017. He arguesthat subject motion is violative of his constitutional rightagainst double jeopardy. He also contends that the suspensionorder against him in Adm. Case No. 08-2005 was void; hence,it cannot produce any legal effect. He insists that the decisionof the Court of Appeals constitutes res judicata insofar as thematter of the validity of the suspension of the accused isconcerned.5

The Court finds the motion for reconsideration bereft ofrneri~

43 pp. 90-103, Record, Vol. 24660 seRA 525 (2011)5 pp. 108-112, Record, Vol. 2


Section 21, Article IIIof the Constitution provides:

Section 21. No person shall be twice put injeopardy of punishment for the same offense. If an act ispunished by a law and an ordinance, conviction oracquittal under either shall constitute a bar to anotherprosecution for the same act.

The rule of double jeopardy has a settled meaning in thisjurisdiction. It means that when a person is charged with anoffense and the case is terminated either by acquittal orconviction or in any other manner without the consent of theaccused, the latter cannot again be charged with the same oridentical offense. This principle is founded upon the law ofreason, justice and conscience.6

In order to give life to the rule on double jeopardy, ourrules on criminal proceedings require that a judgment ofacquittal, whether ordered by the trial or the appellate court, isfinal, unappealable, and immediately executory upon itspromulgation. This is referred to as the "finality-of-acquittal"rule. 7

Thus, a review of the Court's Decision acquitting theaccused would violate the guarantee against double jeopardy.

At any rate, even if a review of the assailed Decision wereallowed, the Court is not inclined to alter its findings.

Tobegin with, the Court's acquittal of the accused was notbased on the accused's defenses of good faith and lack ofeducation. As the Court declared in its assailed Resolution, theCourt ofAppeals found that accused's right to due process wasviolated in the administrative proceedings wherein he wasmeted the penalty of three-month suspension; hence, the saidproceeding was void. Necessarily, the suspension order waslikewise void. Consequently, all acts performed b

AtYthe acc~

3 (2015)7 Chiok vs. People, 776 SeRA 120 (2015) ~ /


during the period that he was serving his penalty of three-month suspension were valid and authorized, to wit:8

Tobegin with, the Court maintains its findings thatthe acts subject of these cases were committed when theaccused was still serving the penalty of three-monthsuspension pursuant to the Decision dated December 15,2005, issued by the Sangguniang Panlalawigan ofCamarines Sur in Administrative Case No. 08-2005.However, a review of the Court of Appeals' Decisionpromulgated on November 29, 2006 in CA-G.R.SP No.94136 entitled "Velarde vs. Hon. Lore V. Bagalacsa, et.al.," constrains this Court to grant the subject motion.

CA-G.R. SP No. 94136 involved a petition forcertiorari under Rule 65 of the Rules ofCourt filedby theaccused to nullify the Order dated March 23,2006 issuedby the Regional Trial Court (RTC), Branch 33, Pili,Camarines Sur, in Spec. CivilCase No. 111-2006. Thisorder denied the accused's application for the extensionof the seventy-two-hour temporary restraining order(TRO) to enjoin therein respondents, including themembers of the Sangguniang Panlalawigan ofCamarinesSur, from implementing the Decision dated December 15,2005 of the said Sangguniang Panlalawigan.

In the said decision, the Sangguniang Panlalawiganfound the accused guilty of grave abuse of authority andviolation of law and meted him the penalty of suspensionin officefor a period of three (3)months without pay. Inits Decision promulgated on November 29, 2006, theCourt of Appeals declared that the petition filed by theaccused had become moot because the assailed Decisiondated December 15, 2005 had already been served andimplemented; hence, it dismissed the petition on theground of mootness. However, since the accused(petitioner therein) questioned not only the legality of hissuspension but also his suspension without pay, theCourt of Appeals resolved the case for the purpose ofdetermining the issue of remuneration.

Thus, while the Court of Appeals dismissed thepetition for being moot, it nevertheless ordered the"salary and other monetary benefits withheld from [ty::'

8 At pp. 4-9, Resolution promulgated on February 21,2017; pp. 81-84, Record, Vol. 2; citations omitted

4t,

RESOLUTIONPeople vs. VelardeCriminal Cases os. SB-ll-CRM-0379 and 0380Page 15

accused]" "beimplementationand arbitrary:

requited" on the ground that theof the suspension was contemptuous

The First Ground:A simple perusal of therecords on hand show that the first ground reliedupon by the trial court is without factual basis.

The 20 March 2006 Order of Governor LuisRaymund F. Villafuerte reads as follows:

As the above Governor's Order wasimplemented while the 13 March 2006 Orderof the Court was still in effect, it is clear then,that the respondent's first ground is not onlywithout factual basis; but, more importantly,it is contemptuous as it violated the Court'sOrder dated 13 March 2006, the whole text ofwhich states:

"Mayor Rosito Velarde testified in supportof his petition for the issuance of temporaryrestraining order (TRO).For lack ofmaterial time,the continuation of cross-examination ofpetitioner is set by agreement of counsels toMarch 20, 2006 at 2:00 pm. Upon suggestion ofthe Court, counsels agreed in principle that noaction shall be taken by respondents before theCourt rules on the petition for TRO.

The Second Ground: Records on handreveal that petitioner, an elective official,was notafforded a FORMALhearing.

In explaining the mandatory nature ofconductinga formalhearing part? 4

RESOLUTIONPeople vs. VelardeCriminal Cases Nos. SB-ll-CRM-0379 and 0380Page /6

procedural due process right of an electiveofficial, the Supreme Court, in Joson vs. Torres(G.R. No. 131255, 20 May 1998), had aptlyruled as follows:

Petitioner's right to a formal investigationwas not satisfied when the complaint against himwas decided on the basis ofposition papers. Thereis nothing in the Local Government Code and itsImplementing Rules and Regulations nor in A. O.No. 23 that provide that Administrative casesagainst elective local officials can be decided onthe basis of position papers. A. O. No. 23 statesthat the Investigating Authority may require theparties to submit their respective memoranda butthis is only after formal investigation and hearing.A.O. No. 23 does not authorize the InvestigatingAuthority to dispense with a hearing especially incases involving allegations of fact which are notonly in contrast but contradictory to each other.These contradictions are best settled by allowingthe examination and cross-examination ofwitness. Position papers are often times preparedwith the assistance of lawyers and their artfulpreparation can make the discovery of truthdifficult. The Jurisprudence cited by the DILGinits order denying petitioner's motion for a formalinvestigation applies to appointive officials andemployees. Administrative disciplinaryproceedings against elective government officialsare not exactly similar to those against appointedofficials. In fact, the provisions that apply toelective local officials are separate and distinctfrom appointive government and employees. Thiscan be gleaned from the Local Government Codeitself." (Emphasis supplied).

For failure of Respondent Judge to correctthis procedural mistakes, it is establishedbeyond cavil that she committed grave abuse ofdiscretion in issuing the herein assailed firstorder.

The Third Ground: As petitioner was notamply accorded of his constitutional right to dueprocess,suchviolationis a sufficientgrou/7

<ifl

RESOLUTIONPeople vs. VelardeCriminal Cases Nos. SB-II-CRM-0379 and 0380Page 17

the Respondent Judge to issue an injunctiverelief. For "no person shall be deprive of x x xproperty x x x without due process of law x x x."

It will thus be noted that the Court of Appealsdirected the payment of the accused's back salary basedon two (2) grounds, namely: [1] the governor's.contemptuous act of issuing the Order dated March 20,2006, implementing the penalty of three-monthsuspension issued by the Sangguniang Panlalawigan ofCamarines Sur, because it violated the trial court's Orderdated March 13, 2006 for a status quo pending the trialcourt's resolution ofthe accused's prayer for an extensionof the TRO;and [2] said suspension order was arbitrarybecause the accused was not amply accorded hisconstitutional right to due process. The Court ofAppealsheld that the accused's right to a formal investigation wasnot satisfied when the complaint against him was decidedby the Sangguniang Panlalawigan on the basis of theposition papers only. Thus, the Court ofAppeals ruledthat, "having shown that petitioner had already servedthe suspension arbitrarily imposed upon him,retributive justice dictates that his salary and othermonetary benefits withheld from him must be requited."

What bears underscoring is that the Decision of theCourt ofAppeals was not elevated to the Supreme Courtfor review. Thus, it became final and executory.

While it is jurisprudentially-settled that the Courtof Appeals' findings are not binding on this Court, itwould be grave injustice should this Court simply ignorethese material facts especially the finding on the violationof the accused's right to due process.

For the cardinal precept is that where there is aviolation of basic constitutional rights, courts are oustedof their jurisdiction. The violation ofa party's right to dueprocess raises a serious jurisdictional issue which cannotbe glossed over or disregarded at will. Where the denialof the fundamental right to due process is ap ent, adecision rendered in disregard ofthat right is v.:Id for lackof jurisdiction. This rule is equally fl.:re in quasi-

~4


judicial and administrative proceedings, for theconstitutional guarantee that no man shall bedeprived of life, liberty, or property without dueprocess is unqualified by the type of proceedings(whetherjudicial or administrative) where he standsto lose the same.

In Garciavs. Molina, the Supreme Court held thatpayment of back salary to one who underwent preventivesuspension is justified when the preventive suspensionissued in an administrative proceeding was later declaredvoid:

Lastly, the CA committed no reversibleerror in ordering the payment of back salariesduring the period of respondents' preventivesuspension. As the administrative proceedingsinvolved in this case are void, no delinquency ormisconduct may be imputed to respondents andthe preventive suspension meted them isbaseless. Consequently, respondents should beawarded their salaries during the period of theirunjustified suspension. In granting their backsalaries, we are simply repairing the damage thatwas unduly caused respondents, and unless wecan turn back the hands of time, we can do soonly by restoring to them that which is physicallyfeasible to do under the circumstances. Theprinciple of "no work, no pay" does not applywhere the employeehimself was unlawfully forcedout ofjob.

Although the said case involved a preventivesuspension, the rationale behind the declaration thereinis applicable to the accused at bar. Since the Court ofAppeals found that accused's right to due process wasviolated in the administrative proceeding wherein he wasmeted the penalty of three-month suspension, the saidproceeding was void. Consequently, the suspensionorder issued therein was likewise void. Perforce, all actsperformed by the accused in the discharge of his officialduties as a mayor during the period that he was servinghis penalty of three-month suspension were Val~

4

RESOLUTIONPeople vs. VelardeCriminal Cases Nos. SB-II-CRM-0379 and 0380Page 19

authorized. Necessarily, he cannot be held liable forusurpation of official functions under Article 177 of theRevised Penal Code.

Finally, the Court finds the doctrine of operative factinapplicable to this case.

The doctrine ofoperative fact is an exception to the generalrule, such that a judicial declaration of invalidity may notnecessarily obliterate all the effects and consequences of a voidact prior to such declaration. 9 It nullifies the effects of anunconstitutional law or an executive act by recognizing that the.existence of a statute prior to a determination ofunconstitutionality is an operative fact and may haveconsequences that cannot always be ignored. It applies when adeclaration ofunconstitutionality will impose an undue burdenon those who have relied on the invalid law.10 This doctrine onlyrefers to rights that have already been vested due to reliance ona statute or executive act that was eventually declaredunconstitutional or invalid.11

In this case, there was no act which was done pursuant toa statute or an act which was later declared void orunconstitutional. Thus, the doctrine of operative fact, whichrecognizes the validity of an act previous to the declaration ofunconstitutionality, has no application to these cases. What isinvolved here is the violation of the accused's constitutionalright to due process. The Court of Appeals declared void theadministrative proceedings where accused was meted thepenalty of suspension and consequently ordered the paymentof his back salaries. Considering the violation of the accused'sright to due process, the suspension order issued in the saidadministrative proceeding was necessarily void. The effect ofsuch declaration rendered all the acts performed by the accusedduring the period of suspension therefore valid. Indeed, whenthe administrative proceedings against an accused?7

e vs. San Roque Power Corporation, 690 SCRA336 (2013) ~ r'i10 Film Development Council of the Philippines vs. Colon Heritage Realty CO)poration, G.R. NO~~4and 204418, June 16, 201511 Commissioner of Internal Revenue vs. San Roque Power Corporatil>~, soora note 9

RESOLUTIONPeople vs. VelardeCriminal Cases Nos. SB-II-CRM-0379 and 0380P age 110

declared void, no delinquency or misconduct may be imputedto an accused.12

WHEREFORE, the Court DENIES the prosecution'sMotion for Reconsideration dated March 3, 2017 for (1) beingviolative of the principle against double jeopardy; and, (2) lackof merit and/ or for being pro forma.

SO ORDERED.Quezon City, Metro Manila

WE CONCUR:{/ ~~. ~/Ik~ J-r-?-

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