Miranda v. Sandiganbayan

EN BANC

[G.R. No. 154098. July 27, 2005.]

JOSE C. MIRANDA, petitioner, vs. HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, JR., in his capacity as Secretary of the DILG, and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela, respondents.

Edna Herrera-Batacan for petitioner.

SYLLABUS

1.CRIMINAL LAW; REPUBLIC ACT NO. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES ACT); TWO TYPES OF OFFENSES UNDER SECTION 13 THEREOF. — The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase "any offense involving fraud upon government or public funds or property" is clear and categorical. To limit the use of "government" as an adjective that qualifies "funds" is baseless. The word "public" precedes "funds" and distinguishes the same from private funds. To qualify further "public funds" as "government" funds, as petitioner claims is the law's intent, is plainly superfluous. We are bound by the rule that a statute should be construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own officials.

2.ID.; ID.; ID.; FRAUD UPON GOVERNMENT; ELUCIDATED. — We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioner's act fell within the catch-all provision ". . . or for any offense involving fraud upon government. The term "fraud" is defined, viz.: An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding. It is obvious to the eyes that the phrase "fraud upon government" means "any instance or act of trickery or deceit against the government." It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase "any offense involving . . . public funds or property." It ought to follow that "fraud upon government" was committed when the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position.

3.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COURT CANNOT CORRECT ERRORS OF FACT OR LAW WHICH DO NOT AMOUNT TO GRAVE ABUSE OF DISCRETION. — [T]he issue of whether petitioner committed fraud upon the government or public funds or property is essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion.

4.ID.; EVIDENCE; ADMISSIBILITY; A PARTY CANNOT ESCAPE FROM HIS OWN ADMISSION. — By petitioner's own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This contradicts his assertion that he immediately complied with the memorandum of Undersecretary Sanchez. Petitioner cannot escape from his own admission.

5.ID.; CRIMINAL PROCEDURE; INFORMATION; ENTERING A PLEA WAIVES ANY OBJECTION AN ACCUSED MAY HAVE AS TO THE VALIDITY THEREOF. — The records will show that petitioner did not file a motion to quash the information or a motion for bill of particulars before pleading to the information. It is basic that entering a plea waives any objection the petitioner may have to the validity of the information except on the following grounds: (1) the information charges no offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the offense has been extinguished; and (4) double jeopardy has attached. Objections to the sufficiency of the allegations in the Amended Information do not fall among the exceptions to the rule. They fall under the objection that the information "does not conform substantially to the prescribed form." Needless to state, the petitioner has by his acts acquiesced to the validity and sufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that the petitioner has been deprived of his constitutional right to be apprised of the nature and cause of the accusation against him. Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it is the petitioner who should raise this objection in a motion to quash or motion for bill of particulars before entering his plea. The irregular procedure followed by the dissent would encourage the pernicious practice of "sandbagging" where counsel foregoes raising a pleading defect before trial where it can be easily corrected only to raise the defect later in the hope of obtaining an arrest of judgment or new trial from a sympathetic magistrate. It is precisely this evil that is addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure.

6.ID.; ID.; ID.; TEST TO DETERMINE THE VALIDITY OR SUFFICIENCY OF ALLEGATIONS THEREIN. — The validity or sufficiency of allegations in an information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure[.] . . . The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. The raison d'etre of the rule is to enable the accused to suitably prepare his defense. A perusal of the Amended Information will bear out that it has hurdled this legal bar.

7.POLITICAL LAW; ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; PREVENTIVE SUSPENSION; A CAP ON THE DISCRETIONARY POWER OF THE PRESIDENT, GOVERNOR AND MAYOR TO IMPOSE EXCESSIVELY LONG PREVENTIVE SUSPENSIONS. — It is plain that Section 63 of the Local Government Code was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution.

8.ID.; ID.; ID.; ID.; DOES NOT GOVERN PREVENTIVE SUSPENSIONS IMPOSED BY THE OMBUDSMAN. — Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government. The Ombudsman's power of preventive suspension is governed by Republic Act No. 6770, otherwise known as "The Ombudsman Act of 1989,"[.] . . . The six-month period of preventive suspension imposed by the Ombudsman was indubitably within the limit provided by its enabling law. This enabling law has not been modified by the legislature.

9.ID.; ID.; REPUBLIC ACT NO. 6770 (THE OMBUDSMAN ACT OF 1989) SAFEGUARDS FOR IMPOSITION OF PREVENTIVE SUSPENSION BY THE OMBUDSMAN. — The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy, fixed term of office and classification as an impeachable officer. This much was recognized by this Court in the earlier cited case of Garcia v. Monica. Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

CARPIO, J., dissenting opinion:

1.CRIMINAL LAW; REPUBLIC ACT NO. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES ACT); SUSPENSION AND LOSS OF BENEFITS; CONDITIONS FOR THE IMPOSITION OF PREVENTIVE SUSPENSION. — Section 13 of RA 3019 mandates the Sandiganbayan to impose a preventive suspension on a finding that the information filed against the public official is sufficient in form and substance. The mandatory nature of the suspension requires a strict compliance with the conditions for its imposition. As the provision clearly shows, the existence of a valid information is not enough. The crime charged must be for: a) a violation of RA 3019; or b) an offense contained in Title 7, Book II of the RPC; or c) "any offense involving fraud upon government or public funds or property."

2.ID.; ID.; ID.; PREVENTIVE SUSPENSION CAN BE IMPOSED IF THE CHARGE OF USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS INVOLVES FRAUD UPON GOVERNMENT OR PUBLIC FUNDS OR PROPERTY. — The charge of usurpation of authority or official functions is not a violation of RA 3019. Neither is it a violation of any offense in Title 7, Book II of the RPC. Thus, the Sandiganbayan can impose the mandatory preventive suspension on Miranda under Section 13 of RA 3019 only if the charge of usurpation of authority or official functions against Miranda involves "fraud upon government or public funds or property." Previously, Section 13 only covered violations of RA 3019 or Bribery, which is one of the many crimes under Title 7 of the RPC. The amendment introduced by Batas Pambansa Blg. 195 expanded this scope to include all the crimes in Title 7 of the RPC as well as any crime that may fall under the new catch-all phrase "any offense involving fraud upon government or public funds or property." The common characteristic of the crimes covered in the enumeration remains the same: fraud committed against the government by public officials.

3.ID.; ID.; MEANT TO PUNISH PUBLIC OFFICIALS WHO ABUSE THEIR POSITIONS THROUGH ACTS WHICH PREJUDICE THE GOVERNMENT. — Miranda's arguments that Section 13 of RA 3019 covers only offenses involving public funds or property is baseless. Statutes are read and interpreted in their entirety, and their provisions viewed with reference to the text and not dissected piecemeal. A statute is construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. The legislative intent here is clear. RA 3019, commonly known as the Anti-Graft and Corrupt Practices Act, is meant to punish public officials who abuse their positions through acts which prejudice the government. The law seeks to protect the State from being defrauded by its own officials.

4.ID.; ID.; SUSPENSION AND LOSS OF BENEFITS NOT LIMITED TO ACTS INVOLVING FRAUD ON PUBLIC FUNDS OR PROPERTY. — Nothing in RA 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase "any offense involving fraud upon government or public funds or property" is clear and categorical. It covers two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. To limit the use of "government" as an adjective that qualifies "funds" is not merely baseless, it is also superfluous. The word "public" already precedes "funds," hence clearly distinguishing the funds from private funds. To qualify further "public funds" as "government" funds, as Miranda claims is the law's intent, is plainly superfluous. In distinguishing in Section 13 between "any offense involving fraud upon government" and "any offense involving . . . public funds or property, the law clearly intends to create two types of offenses. To limit the applicability of Section 13 of RA 3019 only to offenses involving public funds or property will exclude other offenses of fraud against the government not involving public funds or property.

5.ID.; USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS; FRAUD ON THE GOVERNMENT IS NOT AN ESSENTIAL ELEMENT. — Not all acts of usurpation of authority or official functions involve "fraud upon government." The essence of usurpation of authority under Article 177 of the RPC is false and malicious representation. The "gravamen of the offense of usurpation of authority is the false representation, maliciously made, that one is an officer, agent or representative of the Philippine Government or any foreign government." Fraud on the government is not an essential element of the offense. The mere act of making a false and malicious representation that one is a government officer is sufficient to continue the offense, whether or not the act defrauds the government. The essence of usurpation of official functions under Article 177 of the RPC is performing, under pretense of official position and without lawful authority, an official act pertaining to an official. Fraud on the government is also not an essential element of the offense. The offense usually results in injury to private parties who are victimized by pretenders to public office.

6.ID.; REPUBLIC ACT NO. 3019; SUSPENSION AND LOSS OF BENEFITS; IT IS NECESSARY THAT THE ACT SHOULD DEFRAUD THE GOVERNMENT. — [T]he gravamen of the "fraud upon government" in Section 13 of RA 3019 is the public officer's act of defrauding the government. It is necessary that the act should defraud the government. Usurpation of authority, while involving fraudulent means, does not necessarily involve fraud on the government. The fraud may be committed only against private parties and not against the government.

7.ID.; ID.; ID.; A SUFFICIENT INFORMATION FOREWARNED THE ACCUSED OF THE SANDIGANBAYAN'S POWER TO IMPOSE ON HIM PENDENTE LITE THE MANDATORY PREVENTIVE SUSPENSION. — What is clear from the Amended Information is that Miranda was accused of usurpation of authority, not of committing acts to defraud the government. The information must have a complete allegation on the particulars as to how Miranda defrauded the government when he reassumed office. The accused has the constitutional right to be informed of the extent of the accusation against him. In this case, the right to be fully informed is not solely to give the accused adequate preparation for his defense. A sufficient information in this case would have also forewarned Miranda of the Sandiganbayan's power to impose on him pendente lite the mandatory preventive suspension. Moreover, fraud is never presumed. The Amended Information should have stated expressly and clearly that Miranda reassumed office to defraud the government or that in reassuming office Miranda committed acts that defrauded the government.

8.ID.; ID.; ID.; SERIOUS DISRUPTIONS IN THE DAY TO DAY AFFAIRS OF THE CITY GOVERNMENT IS NOT AN ALLEGATION THAT THE GOVERNMENT ITSELF WAS DEFRAUDED. — The "serious disruptions in the day to day affairs of the city government" is not an allegation that the government itself was defrauded. As interpreted by the Sandiganbayan and the majority opinion, the "serious disruptions in the day to day affairs of the city government" meant that there was chaos or confusion because the employees did not know whom to obey. True, the ones who were inconvenienced by the confusion caused by Miranda's re-assumption of office were the employees, and to a certain extent, the public, but such confusion does not amount to fraud on the government.

9.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; SANDIGANBAYAN'S "FACTUAL FINDINGS" BASED SOLELY ON THE AFFIDAVIT OF PRIVATE COMPLAINANTS CONSTITUTIVE OF GRAVE ABUSE OF DISCRETION. — The majority opinion insists that "the factual findings of the Sandiganbayan are binding unless they are capricious or whimsical." Lest we forget, this case has not yet gone to trial. The Sandiganbayan was only called upon to rule on the motion to suspend Miranda pendente lite. No factual findings should have been made by the Sandiganbayan as to Miranda's alleged commission of fraud on the government. The Sandiganbayan's "factual findings," based solely on the affidavit of private complainant Amelita S. Navarro, constitute grave abuse of discretion. The Sandiganbayan's inquiry should have been limited to the determination of the sufficiency of the Amended Information. Whether the Sandiganbayan correctly appreciated the sufficiency of the Amended Information is not a question of fact but a question of law, which this Court can review.

10.CRIMINAL LAW; USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS; ABSENCE OF THE LAWFUL AUTHORITY TO APPOINT DOES NOT IPSO FACTO MEAN THAT THE GOVERNMENT IS DEFRAUDED BY SUCH APPOINTMENT. — The charge of fraud on the government will stand or fall on the sufficiency of the Amended information. The Amended Information miserably fails to recite the facts constituting the accusations of fraud on the government. The Amended Information should have at least alleged that the officials appointed by Miranda did not render service to the public or malversed public funds in conspiracy with Miranda. Since there was no allegation of such acts or any other fraudulent acts, at most, the Amended Information accused Miranda of usurpation of authority. The absence of the lawful authority to appoint does not ipso facto mean that the government is defrauded by such appointment. Thus, it was incumbent on the Ombudsman to craft the Amended Information with precision.

11.POLITICAL LAW; ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; PROHIBITS ANY SINGLE PREVENTIVE SUSPENSION OF A LOCAL ELECTIVE PUBLIC OFFICIAL TO LAST FOR MORE THAN SIXTY DAYS. — Section 63 (b) of the Local Government Code prohibits any single preventive suspension of a local elective public official to last for more than 60 days. When Miranda re-assumed office on 24 November 1997, he had already served 60 days of preventive suspension. Hence, there was no longer any legal impediment to his resumption of office. True, the Ombudsman has the power to investigate and immediately preventively suspend public officials, whether appointive or elective, under Section 24 of Republic Act No. 6770 ("RA 6770"). However, the Ombudsman must exercise such power in conformity with Section 63 (b) of the Local Government Code, a later law. Section 63 (b) of the Local Government Code governs specifically the duration of a single preventive suspension of local elective public officials. In contrast, Section 24 of RA 6770, imposing a maximum suspension of six months, governs all other public officials, whether appointive or elective.

12.ID.; ID.; ID.; OMBUDSMAN'S POWER TO SUSPEND PREVENTIVELY A LOCAL ELECTIVE OFFICIAL FOR SIX MONTHS IS REPUGNANT THERETO. — Indeed, the power to suspend preventively a local elective official could be prone to abuse, frustrating the will of the electorate. The Ombudsman's power to suspend preventively a local elective official for six months is repugnant to the Local Government Code, which limits the preventive suspension to only 60 days. Under Section 66 (b) of the Local Government Code, the maximum suspension of six months is already a penalty. The power given by RA 6770 to the Ombudsman is limited to the imposition of a preventive suspension while the Ombudsman investigates the case of an elective official. A preventive suspension is not a penalty. A person under preventive suspension, especially in a criminal action, is still entitled to the presumption of innocence. By upholding the power of the Ombudsman to impose a preventive suspension of six months on a local elective official, the Ombudsman is in effect already penalizing the local elective official even before the Ombudsman's investigation has begun.

13.ID.; ID.; ID.; UNNECESSARILY PROLONGED PREVENTIVE SUSPENSION UNLAWFULLY SHORTENED THE ELECTIVE OFFICIAL'S TERM. — A preventive suspension of six months by the Ombudsman and the mandatory 90-day preventive suspension imposed by the Sandiganbayan pendente lite cut the term of an elective official by almost a third. This is the very problem that the Local Government Code seeks to prevent. Theoretically, public officers in political positions could be influenced to use the preventive suspensions as a means to oppress a political opponent. The Ombudsman as a constitutional creation is supposed to be shielded from the vagaries of politics, but the reality is the Ombudsman is not immune from committing grave abuse of discretion. As we have seen in Garcia vs. Mojica, the Ombudsman imposed the maximum period of six months when a suspension of only 24 days would have sufficed. Whether the motive for imposing an unnecessarily prolonged preventive suspension is political or is just a result of grave abuse of discretion, the net effect is the same; the elective official's term is unlawfully shortened.

14.ID.; ID.; ID.; 60-DAY CAP IS NOT LIMITED TO PREVENTIVE SUSPENSIONS IMPOSED BY EXECUTIVE OFFICIALS ONLY. — In Rios vs. Sandiganbayan, this Court applied the 60-day cap in Section 63 (b) of the Local Government Code to a 90-day preventive suspension imposed by the Sandiganbayan. In Garcia v. Mojica, this Court cut short to 24 days a 6-month preventive suspension imposed by the Ombudsman. Certainly, existing jurisprudence does not limit the 60-day cap in Section 63 (b) of the Local Government Code only to preventive suspensions imposed by executive officials. To apply the 60-day cap in Section 63 (b) of the Local Government Code only to preventive suspensions imposed by executive officials will result in anomalous situations. In administrative investigations, executive officials have concurrent jurisdiction with the Ombudsman over local elective officials. Executive officials may refer to the Ombudsman administrative cases against local elective officials. This will give executive officials the choice whether to subject a local elective official to a maximum 60-day or a maximum 6-month preventive suspension. If an executive official wants a local executive official subjected to a 6-month preventive suspension, he will simply endorse the administrative investigation to the Ombudsman. This will deny local elective officials equal protection of the law. This could not have been the intention of the legislature in putting the 60-day cap in Section 63 (b) of the Local Government Code.

15.ID.; ID.; ID.; PURPOSE. — Applying the 60-day cap in Section 63 (b) of the Local Government Code only to preventive suspensions imposed by executive officials will practically deprive executive officials of their disciplinary authority over local elective officials. Every complainant will now file administrative cases against local elective officials only before the Ombudsman to secure longer preventive suspensions. Worse, this will insure that all administrative cases against local elective officials will be subjected to a maximum 6-month preventive suspension. This will defeat the avowed purpose of Section 63 (b) of the Local Government Code, which is precisely to limit preventive suspensions of local elective officials to not more than 60 days.

16.ID.; ID.; ID.; SUPREME COURT SHOULD NOT INTERPRET THE LAW TO DEFEAT ITS PURPOSE. — This is the anomalous result of a selective interpretation of Section 63 (b) of the Local Government Code, applying it to preventive suspensions imposed by executive officials and not applying it to preventive suspensions imposed by the Ombudsman. This Court should not interpret the law to defeat its purpose. Neither should this Court sanction an interpretation that so obviously fosters the very evil that the law seeks to eradicate.

D E C I S I O N

PUNO, J p:

First, the facts.

The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. 1 Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312. 2 In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the Ombudsman's preventive suspension order: (a) issued a memorandum addressed to Navarro advising her that he was assuming his position as City Mayor; 3 (b) gave directives to the heads of offices and other employees; 4 (c) issued Office Order No. 11-021 which authorized certain persons to start work; 5 and (d) insisted on performing the functions and duties of Mayor despite Navarro's requests to desist from doing so without a valid court order and in spite of the order of Department of the Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from reassuming the position. 6 Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code (RPC). 7

In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith. 8 He contended that under Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60 days. 9 He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same. 10 Notably, Mayor Miranda's counter-affidavit also stated that he left the mayoralty post after "coercion" by the Philippine National Police. 11

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a reinvestigation of the case in light of the manifestations made by prosecution and defense counsel. 12 After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal of the case in a Resolution dated 14 September 2000. 13 Coquia held that Miranda reassumed his office in "good faith" and on "mistake of fact" due to the "difficult questions of law" involved. 14

Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia's resolution to the Ombudsman's Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquia's findings and recommended the filing of the case against Mayor Miranda. 15 He pointed out that Mayor Miranda's invocation of good faith was belied by the fact that he received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable and that he should serve out its remaining period. 16 He further noted that Miranda violated the orders of both the Ombudsman and the DILG. 17 Ombudsman Desierto adopted the Chief Legal Counsel's recommendation, 18 and the case was re-raffled to Special Prosecution Officer Evelyn T. Lucero. Subsequently, the prosecution filed an amended Information with the Sandiganbayan, 19 to which the petitioner interposed a negative plea. 20

On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to suspend Mayor Miranda pendente lite based on Section 13 of Republic Act No. 3019 (R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act. 21 Miranda opposed the motion on the ground that the offense of usurpation of authority or official functions under Article 177 of the RPC is not embraced by Section 13 of R.A. No. 3019 which only contemplates offenses enumerated under R.A. No. 3019, Title VII, Book II of the RPC or which involve "fraud upon government or public funds or property." 22

In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor Miranda from office for 90 days. 23 The anti-graft court held that a violation of Article 177 of the RPC involves fraud "which in a general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another." 24 It further ruled that Miranda's act fell within the catch-all provision ". . . or for any offense involving fraud upon government." 25 Miranda's motion for reconsideration was denied in the Sandiganbayan's Resolution dated 17 June 2002. 26 Hence, the present petition assailing the Sandiganbayan's orders of preventive suspension. The petitioner contends that the Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground not authorized by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts involving public funds or property; and (2) whether the crime of usurpation of authority or official functions involves "fraud upon government or public funds or property" found in Section 13 of R.A. No. 3019.

We rule in the negative.

First. Section 13 of R.A. No. 3019, as amended, provides:

Section 13.Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government.

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase "any offense involving fraud upon government or public funds or property" is clear and categorical. To limit the use of "government" as an adjective that qualifies "funds" is baseless. The word "public" precedes "funds" and distinguishes the same from private funds. To qualify further "public funds" as "government" funds, as petitioner claims is the law's intent, is plainly superfluous. We are bound by the rule that a statute should be construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own officials. cTECIA

Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioner's act fell within the catch-all provision ". . . or for any offense involving fraud upon government. The term "fraud" is defined, viz.:

An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding 27

It is obvious to the eyes that the phrase "fraud upon government" means "any instance or act of trickery or deceit against the government." It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase "any offense involving . . . public funds or property." It ought to follow that "fraud upon government" was committed when the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position.

The dissent opines that fraud upon government is not necessarily an essential element of the crime of usurpation of authority. The submission may be correct as a general proposition but general propositions hardly decide a case. In the case at bar, the issue is whether the alleged acts of usurpation of authority committed by the petitioner involve "fraud upon government or public funds or property" as the term is understood under Section 13 of R.A. No. 3019. In ruling in the affirmative, the Sandiganbayan held:

Let us take a look at the acts complained of as alleged in the Amended Information dated July 27, 2001:

. . . the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension did then and there, willfully, unlawfully and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the City Government and perform acts pertaining to an office to which he knowingly was deprived of.

Moreover, in private complainant Amelita S. Navarro's Affidavit of Complaint dated November 26, 1997, she said: ". . ., he proceeded to his office and started giving directives to the various heads of office and other employees, the unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government."

Accused's acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office. This actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision ". . . or for any offense involving fraud upon government . . ."

Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that ". . . under Section 13 of the Anti-Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the Information . . ." In fact, as early as 1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the Honorable Supreme Court speaking thru Justice Relova said:

Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as a matter of course. There are no ifs and buts about it. . . .

After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a negative plea thereto thereby tacitly acquiescing to the validity of the said Information. ScaAET

There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion to Suspend Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be accorded affirmative relief. 28 (Citations omitted)

In denying petitioner's Motion for Reconsideration, the Sandiganbayan further held:

Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official Function) of the Revised Penal Code, which is the charge against herein accused, does not fall under the catchall provision of Section 13 of Republic Act No. 3019 ". . . or for any offense involving fraud upon government or public funds or property . . ." He said that the acts complained of as alleged in the Information do not constitute fraud upon government or public fund or property.

Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite. The accused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2) public funds or property. This is precisely availing in the case at bar. The Information in herein case, says: ". . . accused . . . assume the duties and functions of the Office of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of." When accused-mayor appointed persons in various positions, he indirectly dealt with the city's funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the city's funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city.

Moreover, as the prosecution said, "when accused Miranda, willfully and knowingly, during the effectivity of his suspension barged into the City Hall, issued orders and directives and performed functions as City Mayor, he was sending the unwritten yet visible message that he was authorized to do and function as such. . . ." We hold this as a fraud upon government resulting in the chaos or confusion albeit temporary, as the employees would be in a quandary whom to follow or obey.

Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the prosecution, there is no cogent reason for this Court to depart from its previous ruling. Further, considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby denied.

Accordingly, the Motion for Reconsideration is denied for lack of merit. 29

This Court finds no reason to disagree with the Sandiganbayan. Its conclusions are amply supported by the record. Additionally, the issue of whether petitioner committed fraud upon the government or public funds or property is essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion. 30

The dissenting opinion, however, says there was no fraud. It holds that "it would be fraud of public funds if these public officials just collected their salaries without rendering service to the government." It further asserts that "fraud upon government" must be read so as to require that malversation of funds was committed. 31 This is a complete volte face from its claim that Section 13 of R.A. No. 3019 covers two types of offenses: (1) any offense involving fraud upon the government; and (2) any offense involving public funds or property. 32 What is more, adopting the dissenting opinion's line of reasoning would render superfluous the phrase "fraud upon government" as malversation is subsumed by "any offense involving public funds or property." aHSTID

Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that he was no longer under preventive suspension. Petitioner's pretense cannot stand scrutiny. Petitioner's own affidavit states: 33

8.That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number of ONE HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for under the Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume my office as the duly elected City Mayor of Santiago City;

9.That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the same date, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office;

10.For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly harassed and threatened me and my constituents with bodily harm using the strong arm of the law thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from performing my duties and functions to avoid any possible unfortunate incident that may happen to me and my constituents; . . . 34 (Emphases supplied)

By petitioner's own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This contradicts his assertion that he immediately complied with the memorandum of Undersecretary Sanchez. 35 Petitioner cannot escape from his own admission.

To be sure, petitioner's honest belief defense is old hat. In the 1956 case of People v. Hilvano, 36 the facts are:

When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning of September 22, 1952, he designated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano refused to yield, arguing that he had been designated by the Mayor. Whereupon the Vice-Mayor sent a telegram to the Executive Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of the Revised Administrative Code it was the Vice-Mayor who should discharge the duties of the Mayor during the latter's temporary absence. Shown this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the office. Notwithstanding such opinion which was exhibited to him — Hilvano declined to vacate the post, which he held for about a month, appointing some policemen, solemnizing marriages and collecting the corresponding salary for mayor.

Wherefore Francisco Hilvano was prosecuted — and after trial — was convicted of usurpation of public authority under Republic Act No. 10. He appealed in due time.

In rejecting the defense of the accused Hilvano, we ruled: 37

There is no excuse for defendant-appellant. In the beginning he might have pleaded good faith, invoking the designation by the Mayor; but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the position. He was rightfully convicted. TcDHSI

Petitioner's excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of law, they should have assailed the validity of the order of suspension in court instead of taking the law into their own hands.

Fourth. It should be stressed that petitioner was suspended by the Sandiganbayan. Under Section 13 of R.A. No. 3019, this suspension is mandatory if the information is sufficient. Understandably, the dissent argues that the Amended Information is insufficient in form as it should have "expressly and clearly stated that Miranda re-assumed office to defraud the government or that in re-assuming office Miranda committed acts that defrauded the government" 38 and that it is improper to take into account the petitioner's admissions in his affidavit for this purpose.

With due respect, the dissent is way off-line. The records will show that petitioner did not file a motion to quash the information or a motion for bill of particulars before pleading to the information. It is basic that entering a plea waives any objection the petitioner may have to the validity of the information except on the following grounds: (1) the information charges no offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the offense has been extinguished; and (4) double jeopardy has attached. 39 Objections to the sufficiency of the allegations in the Amended Information do not fall among the exceptions to the rule. They fall under the objection that the information "does not conform substantially to the prescribed form." 40 Needless to state, the petitioner has by his acts acquiesced to the validity and sufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that the petitioner has been deprived of his constitutional right to be apprised of the nature and cause of the accusation against him. Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it is the petitioner who should raise this objection in a motion to quash or motion for bill of particulars before entering his plea. 41 The irregular procedure followed by the dissent would encourage the pernicious practice of "sandbagging" where counsel foregoes raising a pleading defect before trial where it can be easily corrected only to raise the defect later in the hope of obtaining an arrest of judgment or new trial from a sympathetic magistrate. 42 It is precisely this evil that is addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure.

Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a timely fashion by the petitioner, the dissenting opinion's arguments still do not convince. The validity or sufficiency of allegations in an information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz:

SECTION 9. Cause of the Accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. 43

The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. The raison d'etre of the rule is to enable the accused to suitably prepare his defense. 44 A perusal of the Amended Information will bear out that it has hurdled this legal bar. We quote its contents:

That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, willfully, unlawfully, and knowingly and under pretense of official position, assume the duties and function of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of. 45

Using this test, it cannot be said that the Amended Information failed to properly apprise the petitioner of the charge against him. The information charged the petitioner with assuming the duties and performing acts pertaining to the office of Mayor willfully, unlawfully and knowingly under the pretense of official position. Moreover, it states some of the specific acts which constitute usurpation of official functions, namely, issuing directives and memoranda and appointing certain persons to various positions in the city government. These allegations are clear enough for a layman to understand. Indeed, even the petitioner does not complain about their ambiguity. Only the dissent does. TDcEaH

Fifth. The dissenting opinion also contends that the Ombudsman's authority to preventively suspend local elective officials for 6 months is limited by Section 63(b) of the Local Government Code. Under the latter law, petitioner can only be suspended for a maximum period of 60 days. It then jumps to the conclusion that petitioner could not have usurped authority because he reassumed office after 60 days. 46

With due respect, the dissent fails to focus on the proper issue. The issue before this Court is whether the Sandiganbayan committed a grave abuse of discretion in suspending the petitioner for 90 days. The validity of the Ombudsman's order of preventive suspension of the petitioner for 6 months is not the one assailed in the case at bar. The irrelevance of the suspension order of the Ombudsman notwithstanding, the reliance of the dissenting opinion on Garcia v. Mojica is inapropos. In Garcia, we held:

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted.

On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him.

We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. 47 (Emphases supplied)

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the Ombudsman. In fact, the Court expressly stated that its decision was rendered without subscribing to the petitioner's claim that the Local Government Code had been violated. In fine, the Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive suspension since it was admitted that the documents required were already obtained by 19 July 1999 or 24 days after the imposition of the preventive suspension. Therefore, the purpose for which the suspension was imposed was already served.

The dissenting opinion also cites the case of Rios v. Sandiganbayan 48 as basis for assailing the Ombudsman's order of preventive suspension. Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also worth noting that Rios cited Section 63 of the Local Government Code as its legal basis. This provision provides:

SECTION 63.Preventive Suspension. —

(a)Preventive suspension may be imposed:

(1)By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; TCASIH

(2)By the governor, if the respondent is an elective official of a component city or municipality; or

(3)By the mayor, if the respondent is an elective official of the barangay.

(b)Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

(c)Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.

It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution. This view was embraced by the Court in Hagad v. Gozo-Dadole 49 and Garcia v. Mojica. 50 In Hagad, we held:

Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. 51

In the same vein, we made the following observations in Garcia, viz.:

Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. . . .

It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern differently." 52 (Emphases supplied)

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that Senator Pimentel 53 explained during the Senate deliberations that the purpose of Section 63 of the Code is to prevent the abuse of the power of preventive suspension by members of the executive branch, to wit:

The President. 54 I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him —

Senator Pimentel. That is true, Mr. President.

The President. — contending that under the new Constitution, even the President does not have that right.

Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President. HcSaAD

The President. Can that be done under this new Code?

Senator Pimentel. Under our proposal, that can no longer be done, Mr. President. 55

Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government. 56 The Ombudsman's power of preventive suspension is governed by Republic Act No. 6770, 57 otherwise known as "The Ombudsman Act of 1989," which provides:

SECTION 24.Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. 58 (Emphasis supplied)

The six-month period of preventive suspension imposed by the Ombudsman 59 was indubitably within the limit provided by its enabling law. This enabling law has not been modified by the legislature.

The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping the limit for executive officials at sixty days violates the constitutional proscription against equal protection of the law. In essence, it avers that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy, 60 fixed term of office 61 and classification as an impeachable officer. 62 This much was recognized by this Court in the earlier cited case of Garcia v. Mojica. 63 Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. 64

The dissenting opinion finally points out the possibility of abuse by the Ombudsman in imposing preventive suspensions. The short reply is that all powers are susceptible of abuse but that is no reason to strike down the grant of power. Suffice it to say that the proper remedies against abuse in the exercise of power are a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure or amendment of the Ombudsman's enabling law by the legislature, not a contortionist statutory interpretation by this Court.

IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing that the Sandiganbayan gravely abused its discretion in issuing its Resolution of 4 February 2002, preventively suspending the petitioner for 90 days. cSIACD

SO ORDERED.

Davide, Jr., C.J., Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Callejo, Sr., Tinga, Chico-Nazario and Garcia, JJ., concur.

Carpio, J., see dissenting opinion.

Corona, J., I hereby certify that I voted for the majority during its deliberations. Is on official leave.

Carpio Morales, J., I concur in the result of J. Carpio's dissenting opinion.

Azcuna, J., I concur in the dissent of Justice Antonio T. Carpio.

Separate Opinions

CARPIO, J., dissenting:

I dissent from the majority opinion.

This case arose from a Complaint filed by Amelita S. Navarro ("Navarro") on 1 December 1997 with the Office of the Ombudsman ("Ombudsman") docketed as OMB-1-97-2312. 1 Navarro alleged that petitioner Jose C. Miranda ("Miranda") committed the crime of usurpation of authority or official functions under Article 177 of the Revised Penal Code 2 ("RPC") when he re-assumed his position as Mayor of Santiago City, Isabela on 24 November 1997 during his preventive suspension. The Ombudsman had placed Miranda under preventive suspension for six months from 25 July 1997 to 25 January 1998, under a charge of violating Republic Act No. 6713. 3

In his counter-affidavit, Miranda asserted that he re-assumed office on the advice of his lawyer and in good faith. Miranda maintained that under Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60 days. Miranda added that when he received — on the day he re-assumed office — a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office, he immediately complied with the memorandum.

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Miranda for violation of Article 177 of the RPC. On 20 November 1998, the Sandiganbayan ordered the Office of the Special Prosecutor to conduct a reinvestigation of the case. Special Prosecution Officer Rodrigo V. Coquia ("Coquia") recommended the dismissal of the case in a Resolution dated 14 September 2000, as Miranda re-assumed his office in good faith and on mistake of fact.

However, Ombudsman Aniano A. Desierto ("Ombudsman Desierto") referred Coquia's Resolution to the Office of the Ombudsman's Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquia's findings and recommended the filing of the case against Miranda. Ombudsman Desierto adopted the Chief Legal Counsel's recommendation. The case was re-raffled to Special Prosecution Officer Evelyn T. Lucero. Subsequently, the prosecution filed an Amended Information with the approval of the Sandiganbayan. The Information reads:

That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, wil[l]fully, unlawfully, and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of. EHTSCD

CONTRARY TO LAW. 4

On 28 November 2001, the prosecution filed a motion to suspend Miranda pendente lite based on Section 13 of Republic Act No. 3019 5 ("RA 3019"). Miranda opposed the motion, asserting that the offense of usurpation of authority or official functions is not embraced in RA 3019 or Title VII, Book II of the RPC. Neither does it involve "fraud upon government or public funds or property."

In a Resolution dated 4 February 2002, the Sandiganbayan granted the prosecution's motion and preventively suspended Miranda from office for 90 days. 6 The dispositive portion of the Resolution reads:

WHEREFORE, the Court hereby orders the suspension pendente lite of JOSE C. MIRANDA from his position as City Mayor of Santiago City, Isabela and from any other position he may now or hereafter be holding for a period of ninety (90) days.

Once this Order shall have become final and executory, the Hon. Secretary of the Department of the Interior and Local Government as well as the Honorable Governor of Isabela shall be ordered to implement this order. They shall be informed accordingly when the Order is already executory.

SO ORDERED. 7

The Sandiganbayan denied Miranda's motion for reconsideration on 17 June 2002. Hence, Miranda filed this petition.

The Sandiganbayan rejected Miranda's argument that the charge against him does not fall within Section 13 of RA 3019. The Sandiganbayan reasoned in this manner:

Accused's acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office. This actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision ". . . or for any offense involving fraud upon government . . . ". 8

The Sandiganbayan subscribed to the Ombudsman's argument that Miranda indirectly committed "fraud upon government or public funds or property'' when he re-assumed his office and appointed several persons to various public positions.

Miranda contends that the Sandiganbayan gravely abused its discretion, amounting to lack of jurisdiction, when it preventively suspended him for a reason not authorized by law. Miranda raises the following issues for resolution:

1.WHETHER SECTION 13 OF RA 3019 APPLIES ONLY TO FRAUDULENT ACTS INVOLVING PUBLIC FUNDS OR PROPERTY; and

2.WHETHER THE CRIME OF USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS FALLS WITHIN THE PHRASE "FRAUD UPON GOVERNMENT OR PUBLIC FUNDS OR PROPERTY" FOUND IN SECTION 13 OF RA 3019.

Whether Section 13 of RA 3019 Applies Only

The Ombudsman maintains that the catch-all phrase in Section 13 of RA 3019 is not limited to fraudulent acts involving government funds or property. The Ombudsman argues that the word "or" between "government" and "public" creates two types of offenses, one involving public funds or property and the other involving all forms of "fraud upon government."

Miranda counters that Section 13 of RA 3019 applies only if a fraudulent act involves public funds or property. Miranda contends that the word "government" in Section 13 of RA 3019 simply qualifies or describes the nature of funds or property to distinguish it from "private" funds or property. IEaCDH

Section 13 of RA 3019 mandates the Sandiganbayan to impose a preventive suspension on a finding that the information filed against the public official is sufficient in form and substance. 9 The mandatory nature of the suspension requires a strict compliance with the conditions for its imposition. As the provision clearly shows, the existence of a valid information is not enough. The crime charged must be for:

a)a violation of RA 3019; or

b)an offense contained in Title 7, Book II of the RPC; or

c)"any offense involving fraud upon government or public funds or property."

The charge of usurpation of authority or official functions is not a violation of RA 3019. Neither is it a violation of any offense in Title 7, Book II of the RPC. Thus, the Sandiganbayan can impose the mandatory preventive suspension on Miranda under Section 13 of RA 3019 only if the charge of usurpation of authority or official functions against Miranda involves "fraud upon government or public funds or property."

Previously, Section 13 only covered violations of RA 3019 or Bribery, which is one of the many crimes under Title 7 of the RPC. The amendment introduced by Batas Pambansa Blg. 195 expanded this scope to include all the crimes in Title 7 of the RPC as well as any crime that may fall under the new catch-all phrase "any offense involving fraud upon government or public funds or property." The common characteristic of the crimes covered in the enumeration remains the same: fraud committed against the government by public officials.

Miranda's argument that Section 13 of RA 3019 covers only offenses involving public funds or property is baseless. Statutes are read and interpreted in their entirety, and their provisions viewed with reference to the text and not dissected piecemeal. 10 A statute is construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. The legislative intent here is clear. RA 3019, commonly known as the Anti-Graft and Corrupt Practices Act, is meant to punish public officials who abuse their positions through acts which prejudice the government. The law seeks to protect the State from being defrauded by its own officials.

Nothing in RA 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase "any offense involving fraud upon government or public funds or property" is clear and categorical. It covers two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. To limit the use of "government" as an adjective that qualifies "funds" is not merely baseless, it is also superfluous. The word "public" already precedes "funds," hence clearly distinguishing the funds from private funds. To qualify further "public funds" as "government" funds, as Miranda claims is the law's intent, is plainly superfluous.

In distinguishing in Section 13 between "any offense involving fraud upon government" and "any offense involving . . . public funds or property," the law clearly intends to create two types of offenses. To limit the applicability of Section 13 of RA 3019 only to offenses involving public funds or property will exclude other offenses of fraud against the government not involving public funds or property.

To illustrate, Mr. X, a BIR official is in charge of issuing tax credit certificates. A garments exporter, a co-conspirator of Mr. X, fakes a P1 million tax credit purportedly issued to his garments company. The garments exporter sells the tax credit certificate to an unsuspecting oil company, which on the assurance of Mr. X of the authenticity of the tax credit certificate, pays P800,000 for the certificate. The oil company pays its P1 million tax liability with the government using the tax credit certificate. Here, no public fund or property is involved. To adopt Miranda's position will place Mr. X, a public employee, beyond the reach of Section 13 of RA 3019. Yet clearly, Mr. X is a co-conspirator in defrauding the government and the oil company. 11 The oil company will not pay its P1 million-tax liability to the government unless the government proves that the tax certificate is a forgery, which may take some time. Thus, the government suffers actual injury.

Whether Usurpation of Authority AutomaticallyA 3019

The Ombudsman claims that a charge for usurpation of authority or official functions under Article 177 of the RPC automatically qualifies as a ground for preventive suspension under Section 13 of RA 3019. The Ombudsman asserts that usurpation of authority or official functions falls under "fraud upon government."

Not all acts of usurpation of authority or official functions involve "fraud upon government." The essence of usurpation of authority under Article 177 of the RPC is false and malicious representation. The "gravamen of the offense of usurpation of authority is the false representation, maliciously made, that one is an officer, agent or representative of the Philippine Government or any foreign government." 12 Fraud on the government is not an essential element of the offense. The mere act of making a false and malicious representation that one is a government officer is sufficient to constitute the offense, whether or not the act defrauds the government.

The essence of usurpation of official functions under Article 177 of the RPC is performing, under pretense of official position and without lawful authority, an official act pertaining to an official. 13 Fraud on the government is also not an essential element of the offense. The offense usually results in injury to private parties who are victimized by pretenders to public office.

On the other hand, the gravamen of "fraud upon government" in Section 13 of RA 3019 is the public officer's act of defrauding the government. It is necessary that the act should defraud the government. Usurpation of authority, while involving fraudulent means, does not necessarily involve fraud on the government. The fraud may be committed only against private parties and not against the government.

For example, Mr. Y, a private individual, represents himself as a traffic policeman. He directs traffic at a busy intersection and because of his incompetence causes two private vehicles to collide. Mr. Y is liable for usurpation of official functions but he did not defraud the government. 14

Thus, one may be liable for usurpation of authority or of official functions without defrauding the government. Miranda's case is an example. Miranda re-assumed office on advice of his lawyer that his suspension had ended pursuant to Section 63(b) of the Local Government Code of 1991, which states that "[A]ny single preventive suspension of local elective officials shall not extend beyond sixty (60) days." Miranda claims good faith in re-assuming office since he acted on the advice of his lawyer under circumstances showing an honest intention.

We must bear in mind that Miranda was the duly elected Mayor. Miranda was merely restrained from discharging his duties as Mayor because of the preventive suspension. Under normal circumstances, Miranda as a duly elected official would have the powers to issue directives and appoint individuals to local positions. Without the preventive suspension, Miranda's directives and appointments would have enjoyed the presumption of regularity.

Certainly, Miranda did not re-assume office to defraud the government. Before re-assuming office, Miranda wrote the Ombudsman and all concerned local and national DILG officials informing them of his stand and the legal basis for his re-assumption of office. When the DILG informed him that he remained suspended, Miranda immediately vacated his office. Miranda's actions do not show any attempt to defraud the government. Miranda's acts of re-assuming office and performing his official functions reveal an honest intention to perform his duties as the duly elected Mayor. EcTIDA

The Ombudsman argues that Miranda indirectly defrauded the government of funds or property when he appointed certain individuals during the period of his challenged re-assumption of office. The implication is that the payment of salaries to these public officials amounts to fraud of public funds. It would be fraud of public funds if these public officials just collected their salaries without rendering service to the government. If these public officials performed vital services necessary to keep government offices functioning, there would be no fraud on the government or of public funds. Since these public officials used government property or incurred expenses in good faith while rendering vital services to the public, their acts cannot constitute fraud of public funds or property.

At any rate, the Ombudsman's argument is all for naught. Ultimately, the sufficiency of the Amended Information in accusing Miranda of defrauding the government determines if the Sandiganbayan committed grave abuse of discretion in placing Miranda on preventive suspension for 90 days. 15 A perusal of the Amended Information reveals its patent insufficiency. The Amended Information merely alleged that:

the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, wil[l]fully, unlawfully, and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives, and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of.

What is clear from the Amended Information is that Miranda was accused of usurpation of authority, not of committing acts to defraud the government. The information must have a complete allegation on the particulars as to how Miranda defrauded the government when he reassumed office. The accused has the constitutional right to be informed of the extent of the accusation against him. 16 In this case, the right to be fully informed is not solely to give the accused adequate preparation for his defense. A sufficient information in this case would have also forewarned Miranda of the Sandiganbayan's power to impose on him pendente lite the mandatory preventive suspension.

Moreover, fraud is never presumed. The Amended Information should have stated expressly and clearly that Miranda re-assumed office to defraud the government or that in re-assuming office Miranda committed acts that defrauded the government.

The Amended Information does not even state that the public officials Miranda appointed when he re-assumed office received their salaries without rendering the corresponding services to the government. There is also no allegation that these public officials malversed public funds. If the Ombudsman really believed that Miranda, alone or in conspiracy with the public officials he appointed, had defrauded the government of public funds or property, then the Ombudsman should have charged him with violation of RA 3019, or an offense under Title VII of the RPC, and not usurpation of authority or official functions.

The power of the Sandiganbayan to suspend preventively a public officer rests on the sufficiency and validity of the information. 17 Oddly, while the Sandiganbayan and the majority opinion recognize this doctrine, the Sandiganbayan and the majority opinion still considered Navarro's complaint-affidavit. The Sandiganbayan and the majority opinion cite this portion of Navarro's complaint-affidavit:

. . ., he (Miranda) proceeded to his office and started giving directives to the various heads of office and other employees, the unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government. 18

The majority opinion agrees with the Sandiganbayan's conclusion that the foregoing allegations amount to fraud on the government "resulting in chaos or confusion albeit temporary, as the employees would be in a quandary whom to follow or obey." 19

Assuming that the Sandiganbayan could consider Navarro's complaint-affidavit in imposing the mandatory preventive suspension on Miranda, the allegations in the affidavit fall short of accusing Miranda of defrauding the government. The Sandiganbayan defined fraud as that "which in general sense is deemed to comprise anything calculated to deceive, including acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another." 20

Based on the Sandiganbayan's definition of fraud, by no stretch of the imagination is the bare allegation of "unexpected acts of respondents" tantamount to an allegation of fraud. Miranda's "unexpected acts" were not described with particularity to show that the "unexpected acts" were committed with the end view of defrauding the government. IEAHca

The "serious disruptions in the day to day affairs of the city government" is not an allegation that the government itself was defrauded. As interpreted by the Sandiganbayan and the majority opinion, the "serious disruptions in the day to day affairs of the city government" meant that there was chaos or confusion because the employees did not know whom to obey. True, the ones who were inconvenienced by the confusion caused by Miranda's re-assumption of office were the employees, and to a certain extent, the public, but such confusion does not amount to fraud on the government.

The majority opinion insists that "the factual findings of the Sandiganbayan are binding unless they are capricious or whimsical." Lest we forget, this case has not yet gone to trial. The Sandiganbayan was only called upon to rule on the motion to suspend Miranda pendente lite. No factual findings should have been made by the Sandiganbayan as to Miranda's alleged commission of fraud on the government. The Sandiganbayan's "factual findings", based solely on the affidavit of private complainant Amelita S. Navarro, constitute grave abuse of discretion. The Sandiganbayan's inquiry should have been limited to the determination of the sufficiency of the Amended Information. Whether the Sandiganbayan correctly appreciated the sufficiency of the Amended Information is not a question of fact but a question of law, which this Court can review.

The majority opinion asserts that the issue is not whether the officials appointed by Miranda rendered service to the local government unit. The real issue, according to the majority opinion, is whether Miranda misrepresented himself as having lawful authority to make appointments when he was still under suspension by the Ombudsman.

The charge of fraud on the government will stand or fall on the sufficiency of the Amended Information. The Amended Information miserably fails to recite the facts constituting the accusation of fraud on the government. The Amended Information should have at least alleged that the officials appointed by Miranda did not render service to the public or malversed public funds in conspiracy with Miranda. Since there was no allegation of such acts or any other fraudulent acts, at most, the Amended Information accused Miranda of usurpation of authority. The absence of the lawful authority to appoint does not ipso facto mean that the government is defrauded by such appointment. Thus, it was incumbent on the Ombudsman to craft the Amended Information with precision.

The majority opinion concludes that Miranda's "honest belief defense is old hat," as this type of defense was long ago rejected by the Court in the 1956 case of People v. Hilvano. 21 The majority opinion points out that Miranda's own admission in his affidavit shows that he could not have in good faith re-assumed office because he openly defied the memorandum of Undersecretary Sanchez.

The majority opinion confuses the issues. In People v. Hilvano, the accused was indicted for usurpation of authority. After trial, the accused was found guilty of the crime charged. The courts in People v. Hilvano passed upon the accused's defense of good faith and found that the accused did not act in good faith because "after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to his position." In the present case, Miranda did not stubbornly stick to his position after he was shown Undersecretary Sanchez's memorandum. Miranda in fact vacated his office upon receipt of Undersecretary Sanchez's memorandum. Under Hilvano, good faith remains a valid defense. Thus, in the present case, good faith in re-assuming office is relevant to the charge of usurpation of authority. In short, a person accused of usurpation of authority could invoke good faith in assuming a public office.

I find it difficult to see how the government could have been defrauded in the course of Miranda's re-assumption of office when his defiance of the preventive suspension order was not at all subtle. Miranda's insubordination was so open and blatant, as the majority opinion describes it, that the acting Mayor, DILG and the Philippine National Police were put on guard. To repeat, if the Ombudsman truly believed that aside from usurpation of authority, Miranda also committed acts that defrauded the government during his re-assumption of office, then the Ombudsman should have carefully worded the Amended Information to convey clearly this charge. DIESHT

Finally, Section 63(b) of the Local Government Code prohibits any single preventive suspension of a local elective public official to last for more than 60 days. 22 When Miranda re-assumed office on 24 November 1997, he had already served 60 days of preventive suspension. Hence, there was no longer any legal impediment to his resumption of office.

Title, the Ombudsman has the power to investigate and immediately preventively suspend public officials, whether appointive or elective, 23 under Section 24 of Republic Act No. 6770 ("RA 6770"). 24 However, the Ombudsman must exercise such power in conformity with Section 63(b) of the Local Government Code, 25 a later law. Section 63(b) of the Local Government Code governs specifically the duration of a single preventive suspension of local elective public officials. In contrast, Section 24 of RA 6770, imposing a maximum suspension of six months, governs all other public officials, whether appointive or elective.

In Rios v. Sandiganbayan, 26 this Court ruled that Section 63(b) of the Local Government Code even limits the power of the Sandiganbayan to suspend preventively local elective officials:

On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single case filed against him. Under Section 63 (b) of the Local Government Code, "any single preventive suspension of local elective officials shall not extend beyond sixty (60) days." (Emphasis supplied)

In Garcia v. Mojica, 27 the Court held that a preventive suspension of six months imposed by the Ombudsman on local elective officials constitutes grave abuse of discretion. The Court further held that a preventive suspension of 24 days on such local elective officials should suffice.

In the present case, Miranda re-assumed office after serving 60 days of preventive suspension, the maximum preventive suspension period allowed by law. Thus, Miranda re-assumed office not as a usurper or a pretender but as the duly elected Mayor of Santiago City, free from the legal impediment of preventive suspension.

However, Miranda immediately vacated his office on the day he re-assumed it in obeisance to the DILG memorandum informing him that his preventive suspension remained in effect. Thus, Miranda remained suspended until 25 January 1998, or a single preventive suspension period of one day short of 6 months. Miranda's preventive suspension for more than 60 days is clearly contrary to law.

The majority opinion argues that Section 63(b) of the Local Government Code is a cap on the discretionary power of the President but does not apply to the Ombudsman. The majority opinion cites the Senate deliberations where Senator Aquilino Pimentel ("Senator Pimentel") explained that the purpose behind Section 63(b) of the Local Government Code was to prevent the abuse of the power of preventive suspension by the members of the executive department. Invoking Hagad v. Gozo-Dadole and Garcia v. Mojica, the majority opinion points out that the President, governor and mayor hold political positions. The possibility that extraneous factors may influence their decision to impose preventive suspension is not remote. The majority opinion asserts that the Ombudsman is not subject to political pressure due to the nature of his office.

I agree with the majority opinion only on one point: the Local Government Code puts a cap on the power to impose preventive suspension on elective officials as this power is susceptible to abuse. However, the period of preventive suspension cannot exceed 60 days regardless of who is imposing the preventive suspension. There is no language in the Local Government Code exempting the Ombudsman from the 60-day preventive suspension cap. Where the law does not distinguish, we should also not distinguish. DHIcET

Prior to the enactment of the Local Government Code, the abuse of the power to impose preventive suspensions was rife. Preventive suspensions were imposed in a serialized manner to prevent an elective official from actually assuming office. During the Senate deliberations, as an illustrative example, Senator Pimentel recounted how then former President Ferdinand E. Marcos abused this power. The deliberations in the Senate proceeded in the following manner:

The President. 28 I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him —

Senator Pimentel. That is true, Mr. President.

The President. — contending that under the new Constitution, even the President does not have that right.

Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against, a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President.

The President. Can that be done under this new Code?

Senator Pimentel. Under our proposal, that can no longer be done, Mr. President. 29 (Emphasis ours)

Indeed, the power to suspend preventively a local elective official could be prone to abuse, frustrating the will of the electorate. The Ombudsman's power to suspend preventively a local elective official for six months is repugnant to the Local Government Code, which limits the preventive suspension to only 60 days. Under Section 66(b) of the Local Government Code, the maximum suspension of six months is already a penalty. 30 The power given by RA 6770 to the Ombudsman is limited to the imposition of a preventive suspension while the Ombudsman investigates the case of an elective official. A preventive suspension is not a penalty. 31 A person under preventive suspension, especially in a criminal action, is still entitled to the presumption of innocence. 32 By upholding the power of the Ombudsman to impose a preventive suspension of six months on a local elective official, the Ombudsman is in effect already penalizing the local elective official even before the Ombudsman's investigation has begun.

We quote the Senate's deliberations on Section 66(b) of the Local Government Code, to wit:

Senator Pimentel. Can we proceed to page 44, Mr. President?

Now, one of the innovations that we have introduced here, Mr. President, is that the penalty of suspension, which is found on line 8, paragraph 2, shall not exceed the unexpired term of the respondent, or a total of six months for his entire term, nor shall said penalty be a bar to his candidacy, etcetera. But we are putting a limitation to the total period of suspension, which shall not exceed six months of his entire term.

It must be remembered, Mr. President, that local government officials now only have a three-year term. So that, if we allow suspension to last longer than six months, we will have a governor or a mayor serving for only a few months of his given term. 33 (Emphasis ours)

A preventive suspension of six months by the Ombudsman and the mandatory 90-day preventive suspension imposed by the Sandiganbayan pendente lite 34 cut the term of an elective official by almost a third. This is the very problem that the Local Government Code seeks to prevent. EAIcCS

Theoretically, public officers in political positions could be influenced to use the preventive suspensions as a means to oppress a political opponent. The Ombudsman as a constitutional creation is supposed to be shielded from the vagaries of politics, but the reality is the Ombudsman is not immune from committing grave abuse of discretion. As we have seen in Garcia v. Mojica, the Ombudsman imposed the maximum period of six months when a suspension of only 24 days would have sufficed. Whether the motive for imposing an unnecessarily prolonged preventive suspension is political or is just a result of grave abuse of discretion, the net effect is the same: the elective official's term is unlawfully shortened.

In Rios v. Sandiganbayan, this Court applied the 60-day cap in Section 63(b) of the Local Government Code to a 90-day preventive suspension imposed by the Sandiganbayan. In Garcia v. Mojica, this Court cut short to 24 days a 6-month preventive suspension imposed by the Ombudsman. Certainly, existing jurisprudence does not limit the 60-day cap in Section 63(b) of the Local Government Code only to preventive suspensions imposed by executive officials.

To apply the 60-day cap in Section 63(b) of the Local Government Code only to preventive suspensions imposed by executive officials will result in anomalous situations. In administrative investigations, executive officials have concurrent jurisdiction with the Ombudsman over local elective officials. 35 Executive officials may refer to the Ombudsman administrative cases against local elective officials. This will give executive officials the choice whether to subject a local elective official to a maximum 60-day or a maximum 6-month preventive suspension. If an executive official wants a local elective official subjected to a 6-month preventive suspension, he will simply endorse the administrative investigation to the Ombudsman. This will deny local elective officials equal protection of the law. This could not have been the intention of the legislature in putting the 60-day cap in Section 63(b) of the Local Government Code.

Applying the 60-day cap in Section 63(b) of the Local Government Code only to preventive suspensions imposed by executive officials will practically deprive executive officials of their disciplinary authority over local elective officials. Every complainant will now file administrative cases against local elective officials only before the Ombudsman to secure longer preventive suspensions. Worse, this will insure that all administrative cases against local elective officials will be subjected to a maximum 6-month preventive suspension. This will defeat the, avowed purpose of Section 63(b) of the Local Government Code, which is precisely to limit preventive suspensions of local elective officials to not more than 60 days.

This is the anomalous result of a selective interpretation of Section 63(b) of the Local Government Code, applying it to preventive suspensions imposed by executive officials and not applying it to preventive suspensions imposed by the Ombudsman. This Court should not interpret the law to defeat its purpose. Neither should this Court sanction an interpretation that so obviously fosters the very evil that the law seeks to eradicate.

In the present case, the DILG could have administratively investigated Miranda and preventively suspended him for 60 days in accordance with Section 63(b) of the Local Government Code of 1991. The DILG did not. A certain Amelita S. Navarro subsequently filed a complaint with the Ombudsman on 1 December 1997, allowing the Ombudsman to suspend preventively Miranda for 6 months, beyond the 60-day maximum period allowed in Section 63(b) of the Local Government Code. This is a stark illustration of the oppressive and anomalous operation of Section 63(b) if it is not made to apply to preventive suspensions imposed by the Ombudsman. Miranda is clearly a victim here of the oppressive and anomalous selective application of Section 63(b) of the Local Government Code. This Court should not countenance such patent anomaly. HTAEIS

In sum, the offense of usurpation of authority or official functions under Article 177 of the Revised Penal Code filed against Miranda in the present case does not involve "fraud upon government or public funds or property" under Section 13 of RA 3019. Thus, the Sandiganbayan committed grave abuse of discretion when it ruled that the charge against Miranda falls within Section 13 of RA 3019 requiring the mandatory preventive suspension of Miranda by the Sandiganbayan. In addition, the maximum period of a single preventive suspension of local elective public officials like Miranda cannot exceed 60 days in accordance with Section 63(b) of the Local Government Code.

ACCORDINGLY, I vote to GRANT the instant petition and to SET ASIDE the Resolutions of the Sandiganbayan dated 4 February 2002 and 17 June 2002 in SB Criminal Case No. 24984.

Footnotes

1.Rollo, pp. 79, 85.

2.Id., pp. 76-78.

3.Id., p. 78.

4.Id., p. 77.

5.Ibid.

6.Id., pp. 77-78.

7.Id., p. 78.

8.Id., p. 81.

9.Ibid.

10.Id., pp. 10-11.

11.Id., pp. 81-82.

12.Id., p. 88.

13.Id., pp. 89-95.

14.Ibid.

15.Id., pp. 96-97.

16.Id., p. 96.

17.Ibid.

18.Id., p. 97.

19.Id., pp. 100-102.

20.Rollo, pp. 36-37.

21.Id., pp. 43-45.

22.Id., pp. 46-48.

23.Id., pp. 37-38.

24.Id., p. 36.

25.Ibid.

26.Id., pp. 41-42.

27.Webster's Third New International Dictionary of the English Language Unabridged, p. 904 (1993).

28.Rollo, pp. 36-37.

29.Rollo, pp. 40-41.

30.Elks Club v. Rovira, 80 Phil. 272 (1948).

31.Dissenting Opinion, p. 16.

32.Dissenting Opinion, pp. 9-10.

33.Rollo, pp. 79, 81; Petitioner's "Counter-Affidavit," pp. 1, 3.

34.Rollo, pp. 81-82; Petitioner's "Counter-Affidavit," pp. 3-4.

35.Rollo, pp. 10-11; Petitioner's "Petition," pp. 8-9.

36.99 Phil. 655-656.

37.Id., pp. 657-658.

38.Dissenting Opinion, p. 16.

39.The Revised Rules of Criminal Procedure, Rule 117, Section 9 (2000); The rule provides as follows:

SECTION 9. Failure to Move to Quash or to Allege Any Ground Therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.

40.The Revised Rules of Criminal Procedure, Rule 117, Section 3(e) (2000).

41.The Revised Rules of Criminal Procedure, Rule 117, Sections 1, 3 and 9, and Rule 116, Section 9 (2000).

42.Kamisar, Israel, and LaFave, Modern Criminal Procedure — Cases, Comments and Questions, pp. 1037-1038 (8th ed).

43.The Revised Rules of Criminal Procedure, Rule 110, Section 9 (2000).

44.Matilde, Jr. v. Jabson, 68 SCRA 456 (1975).

45.Rollo, p. 127.

46.Dissenting Opinion, p. 22.

47.Garcia v. Mojica, 314 SCRA 207, 223-224 (1999).

48.279 SCRA 581 (1997).

49.251 SCRA 242 (1995).

50.314 SCRA 207 (1999).

51.Hagad v. Gozo-Dadole, 251 SCRA 242, 253-254 (1995).

52.Garcia v. Mojica, 314 SCRA 207 (1999).

53.Principal author of the Local Government Code.

54.Senate President Jovito R. Salonga.

55.Record of the Senate, Vol. 1, No. 3, pp. 68-69 (1990).

56.Const., Article XI, Sections 5, 11-14 (1987).

57.Garcia v. Mojica, 314 SCRA 207 (1999); Castillo-Co v. Barbers, 290 SCRA 717 (1998): Hagad v. Gozo-Dadole, 251 SCRA 242 (1995); Lastimosa v. Vasquez, 243 SCRA 497 (1995).

58.Republic Act No. 6770, Section 24 (1989).

59.Rollo, pp. 79, 85.

60.Const., Article XI, Section 14 (1987).

 

61.Const., Article XI, Section 11 (1987).

62.Const., Article XI, Sections 2-3 (1987).

63.314 SCRA 207 (1999).

64.Ibid.

CARPIO, J., dissenting:

1.As cited in the Resolution of the Ombudsman dated 28 September 1998. Rollo, p. 84.

2.Article 177 of the Revised Penal Code provides: "Usurpation of authority or official functions. — Any person who shall knowingly and falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government or of any foreign government, or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or of any foreign government, or any agency thereof, without being lawfully entitled to do so, shall suffer the penalty of prision correccional in its minimum and medium periods."

3.Code of Conduct and Ethical Standards for Public Officials and Employees.

4.Rollo, p. 100.

5.Section 13. Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. . . .

6.In Gonzaga v. Sandiganbayan, G.R. No. 96131 dated 6 September 1991 (201 SCRA 417), the Court ruled that preventive suspension under Section 13 of RA 3019 could not exceed 90 days.

7.Rollo, pp. 37-38.

8.Ibid., p. 36.

9.Bolastig v. Sandiganbayan, G.R. No. 110503, 4 August 1994, 235 SCRA 103.

10.Sotto v. Sotto, 43 Phil. 688 (1922).

11.Mr. X could be charged with violation of Section 3(e) of RA 3019. This provision declares unlawful "[C]ausing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. . . ."

12.Ramon C. Aquino, THE REVISED PENAL CODE, Vol. II, p. 299 (1997 Edition).

13.Ibid.

14.For a similar case, see People v. Reyes, C.A. 70 O.G. 7801, cited in Luis B. Reyes, THE REVISED PENAL CODE, Book II, pp. 242-243 (2001 Ed.).

15.Gonzaga v. Sandiganbayan, supra note 6. See also People, et al. v. CA, et al., 220 Phil. 59 (1985).

16.Article III, Section 14(2) of the 1987 Constitution.

17.Supra, note 15.

18.Rollo, p. 36.

19.Ibid.

20.Ibid.

21.99 Phil. 655 (1956).

22.Section 63(b) of the Local Government Code of 1991 provides as follows: "Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension." (Emphasis supplied)

23.Hagad v. Gozo-Dadole, G.R. No. 108072, 12 December 1995, 251 SCRA 242. The Court framed the pivotal issue in this case as follows: ". . . whether the Ombudsman under Republic Act ("R.A.") No. 6770, otherwise known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative investigations over local elective officials by virtue of the subsequent enactment of R.A. No. 7160, otherwise known as the Local Government Code of 1991 . . ." The Court ruled that R.A. No. 7160 did not divest the Ombudsman of his authority to conduct administrative investigations over local elective officials.

24.Section 24 of RA 6770 provides: "Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided."

25.Supra note 22.

26.Reported as Rios v. The 2nd Division of the Sandiganbayan, 345 Phil. 85 (1997).

27.Reported as Mayor Garcia v. Hon. Mojica, 372 Phil. 892 (1999).

28.Senate President Jovito R. Salonga.

29.Record of the Senate, Vol. 1, No. 3, pp. 68-69 (1990).

30.SEC. 66. Form and Notice of Decision. — . . .

b) the penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office.

xxx xxx xxx

31.Gonzaga v. Sandiganbayan, supra.

32.Ibid.

33.Record of the Senate, Vol. 1, No. 3, pp. 239-240 (1990).

34.In Rios v. Sandiganbayan, the Court ruled that the Sandiganbayan can only impose a preventive suspension of 60 days in compliance with the Local Government Code.

35.Sections 60 to 63, Local Government Code of 1991.