THIRD DIVISION
G.R. No. 232094, July 24, 2019
PARINA R. JABINAL, PETITIONER, v. HON. OVERALL DEPUTY OMBUDSMAN, RESPONDENT.
D E C I S I O N
PERALTA, J.:
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court seeking to reverse and set aside the Resolution1 dated May 16, 2016 and the Joint Order2 dated December 2, 2016 issued by the Office of the Ombudsman in OMB-C-C-15-0487.
On December 4, 2015, the Field Investigation Office of the Ombudsman, represented by Teddy F. Parado, filed a complaint against petitioner Atty. Parina R. Jabinal, Division Manager, Legal Services Department, National Housing Authority (NHA), for violation of Section 7(b)(2) of Republic Act No. (R.A.) 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, which prohibits all public officials and employees from engaging in the private practice of their profession unless authorized. The complaint alleged that petitioner, a legal officer of the NHA in 2008, had notarized two documents, i.e., a Deed of Sale dated August 20, 2008 between the NHA and Milagros Daez, Rosauro D. Villaluz and K-Bon Construction Corporation, and a Deed of Assignment dated September 30, 2008 between Milagros Daez and Rosauro D. Villaluz (First Party), K-Bon Construction Corporation (Second Party) and Alex Uson and Ernesto Yao (Third Party), and she was paid the amount of P30,000.00 for both documents;3 that as petitioner's acts of notarization were within the ambit of the term private practice of law, there should have been a prior request made by her to the NHA for authority to engage in the practice of her profession and the NHA's approval thereof, however, there was no document on file of such written authority in 2008;4 and that the Branch Clerk of Court of the Regional Trial Court of Quezon City also certified that petitioner was not a commissioned notary public for Quezon City in 2008.5
In her counter affidavit, petitioner alleged that on April 17, 2006, while she was a Legal Staff at the Office of the General Manager of the NHA, she filed a petition for appointment as a notary public for and in Quezon City, attaching the authority issued by the NHA to engage in private practice, which was granted by the Executive Judge of RTC Quezon City on May 4, 2006, covering the period from 2006-2007. On February 9, 2008, she filed another petition for a notarial commission, attaching a letter of authority issued by the NHA, but the certificate for notarial commission was issued by the RTC Judge on March 3, 2009 for the period from 2009-2010; that she claimed inadvertence made in good faith when she notarized the two above-mentioned documents in August and September 2008 when her notarial commission was still on petition; and her act was based on her customary notarial practice in 2006-2007.
On May 16, 2016, the Ombudsman found probable cause against petitioner, the dispositive portion of which reads:
WHEREFORE, finding probable cause to indict PARINA R. JABINAL, for violation of Section 7, (b), (2), R.A. 6713 (2 counts) for engaging in notarial practice while employed as Legal Officer of NHA in 2008 without prior authority from the NHA, let the corresponding Informations be filed against her in the Metropolitan Trial Court of Quezon City.6
The Hon. Over-All Deputy Ombudsman gravely erred and abused his discretion, amounting to lack or excess of jurisdiction, in factually assuming that petitioner's acts in notarizing the two (2) documents in August and September 2008 constituted habitual and/or unauthorized private practice of law contemplated under Section 7(b)(2) of R.A. 6713.
The Hon. Overall Deputy Ombudsman gravely erred and abused his discretion, amounting to lack or excess of jurisdiction, in finding that probable cause exists against the petitioner and that she should be criminally indicted before the court for violation of Section 7(b)(2), R.A. 6713, in utter disregard of existing judicial pronouncements by the Supreme Court.7
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:x x x x
(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:
x x x x
(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or
x x x x
Section 11. Penalties. – x x x Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office.
It is clear that when respondent filed her petition for commission as a notary public, she did not obtain a written permission from the Secretary of the DOJ. Respondent's superior, the Register of Deeds, cannot issue any authorization because he is not the head of the Department. And even assuming; that the Register of Deeds authorized her, respondent failed to present any proof of that written permission. Respondent cannot feign ignorance or good faith because respondent filed her petition for commission as a notary public after Memorandum Circular No. 17 was issued in 1986.19
The pieces of evidence on record show that, on two occasions, respondent engaged in notarial service while being employed as Legal Officer of the NHA in 2008. On August 20, 2008, she notarized the Deed of Absolute Sale and entered the same in her Notarial Register as document number 742 on page 79, Book No. II, series of 2008. On September 30, 2008, she notarized the Deed of Assignment and entered the same in her Notarial Register as document number 805 on page 81, Book No. II, series of 2008.
Respondent disclosed that her 2006 petition for Notarial Commission with authority issued by NHA was granted on May 4, 2006 by Executive Judge Natividad Giron-Dizon and was issued on May 5, 2006, covering the period 2006-2007. On the other hand, her February 9, 2008 Petition for Notarial Commission with authority issued by NHA, was granted and issued on March 3, 2009 by Executive Judge Teodor A. Bay covering the period 2009-2010. She stressed that when she notarized the alluded documents in August and September 2008, her Notarial Commission was still on petition.
A closer look on the alleged 2008 petition shows that the petition bears the date February 9, 2008. However, it was stamped received by the Office of the Clerk of Court on February 10, 2009. It also appears on the signature page of the petition that the petitioner was issued IBP No. 751924 on January 14, 2009 and PTR No. 0472089 on January 12, 2009. From the foregoing, it can be deduced that the petition prepared on February 9, 2008, was only filed on February 10, 2009. Clearly, there is no pending petition for notarial commission when the alluded documents were notarized in August and September 2008, respectively. Since there was no petition filed on the said dates, and the authority given by the NHA comes as an attachment to the petition, the logical conclusion is that there was no authority given by the NHA in order for respondent to engage in the limited practice of notarial services when she notarized the documents in August and September 2008.
Section 7, paragraph b(2), R.A. 6713, prohibits any public official and employee to engage in the private practice of their profession unless authorized by the Constitution or law. Respondent is a government employee and is prohibited from engaging in the private practice of her profession unless authorized by the NHA.
Complainant has established that on two occasions respondent engaged in notarial practice while employed as Legal Officer of [the] NHA in 2008, without prior authority from the NHA.20
Endnotes:
1 Per Graft Investigation and Prosecution Officer III Myla Teona N. Teologio and approved by Overall Deputy Ombudsman Melchor Arthur H. Carandang; rollo, pp. 49-54.
2 Per Graft Investigation and Prosecution Officer III Myla Teona N. Teologio and approved by Ombudsman Conchita Carpio Morales; id. at 61-66.
3Id. at 50.
4Id.
5Id. at 51.
6Id. at 53-54.
7Id. at 17-18.
8 1987 CONSTITUTION, Article XI. Section 12 provides:
The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.
9An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for Other Purposes (1989).
10Villarosa v. The Honorable Ombudsman, G.R. No. 221418 January 23, 2019.
11 Id.
12Id.
13Fuentes Jr., v.Office of the Ombudsman, 511 Phil. 402, 413 (2005).
14Philippine Deposit Insurance Corporation v. Casimiro, 768 Phil. 429, 436 (2015).
15Id.
16 Issued by the Office of the President, entitled Revoking Memorandum Circular No. 1025 Dated November 25, 1977.
Memorandum Circular No. 17:
The authority to grant permission to any official or employee shall be granted by the head of the ministry or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides:Sec. 12. "No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of Department; Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the other officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do not involve any real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer or member of the board of directors", subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission.
17Yumol, Jr. v. Atty. Ferrer Sr., 496 Phil. 363, 376 (2005).
18 606 Phil 200 (2009).
19Id. at 206-207.
20Rollo, pp. 52-53. (Citations omitted)
21 See Nava v. Commission on Audit, 419 Phil. 544, 554 (2001).
22Id., citing Deloso v. Desierto, 372 Phil. 805, 814 (1999); Olivarez v. Sandiganbayan, 319 Phil. 45, 62 (1995).