THIRD DIVISION
G.R. No. 212467, July 05, 2021
ROMULO L. NERI, Petitioner, v. OFFICE OF THE OMBUDSMAN, TEOFISTO GUINGONA, JR., HARRY L. ROQUE, JR., MA. DOMINGA B. PADILLA, ROEL GARCIA, BEBU BELCHAND, AND FR. JOSE P. DIZON, Respondents.
D E C I S I O N
LEONEN, J.:
The Constitution and our laws demand a high standard of ethics and integrity from public officials and employees. Those who fall short of this standard and diminish the people's confidence in the government shall meet the just punishment meted out by the law.
For this Court's resolution is a Petition for Review on Certiorari1 assailing the Decision2 and Resolution3 of the Court of Appeals, which modified the Office of the Ombudsman's finding and held that Romulo L. Neri (Neri) was administratively liable for simple, not grave, misconduct.
Neri was the director general of the National Economic and Development Authority during the administration of then President Gloria Macapagal-Arroyo (President Macapagal-Arroyo).4
Sometime in 2006, Zhing Xing Telecommunications Equipment (ZTE), a Chinese company supplying telecommunications equipment in Hongkong and China, submitted a proposal to put up the National Broadband Network project.5 This project would install a nationwide public telecommunications infrastructure linking all government agencies and offices.6
ZTE's proposal required a loan between the Philippines and China to fund the project. Upon completion, the project would be turned over to the then Department of Transportation and Communications for operation and maintenance.7
Later, China Export-Import Bank sent a letter to the National Economic and Development Authority endorsing ZTE's proposal.8
Amsterdam Holdings, Inc. (AHI), a domestic corporation, likewise submitted its proposal to construct the project. Unlike ZTE's bid, AHI's proposal did not require a fund appropriation or guaranty from the government. Moreover, communication expense was also estimated to be 25% lower under AHI's proposal.9
In 2007, ZTE and AHI submitted their final proposals. The Department of Transportation and Communications recommended ZTE's proposal, which was forwarded to the National Economic and Development Authority.10 Neri wrote to the Chinese Minister of Commerce and China Export-Import Bank, informing them that ZTE's bid was approved.11
The government awarded the contract to ZTE. The project was pegged at US$329,500,000.00.12
After the NBN-ZTE deal had been signed, the media reported on corruption allegations surrounding it. Notable among these, then Commission on Elections Chair Benjamin Abalos (Abalos) had reportedly bribed ZTE's rivals to back out from the bidding and used his influence as a public official to broker the project for ZTE.13
In a Senate inquiry, the owner of AHI, Jose De Venecia III (De Venecia), revealed that Abalos had offered him US$10,000,000.00 to withdraw AHI's bid. When De Venecia refused, Abalos proposed a partnership between AHI and ZTE instead. De Venecia said that in their meeting with ZTE in China, he found out that ZTE's proposal was overpriced by US$132,000,000.00.14
When the deal between AHI and ZTE failed to materialize, Abalos allegedly called De Venecia, hurling invectives and death threats at him.15
Rodolfo Jun Lozada (Lozada), who served as Neri's technical consultant for the NBN-ZTE deal, also testified in a Senate hearing. He claimed that he started to get involved when Neri introduced him to Abalos in a meeting at the Wack-Wack Golf and Country Club.16 He alleged that Neri invited him to the National Economic and Development Authority, where De Venecia presented the project. Neri purportedly asked Lozada to reconcile the proposals of ZTE and AHI.17
Neri also testified in a Senate hearing. He narrated that Abalos had bribed him P200,000,000.00 for the NBN-ZTE deal while they were playing golf. Neri said he disclosed this incident to President Macapagal-Arroyo,18 but when prodded on why the President still accepted ZTE's proposal despite the bribery allegations, he invoked executive privilege.19
A Complaint20 was later filed before the Office of the Ombudsman against Neri, Abalos, President Macapagal-Arroyo, then First Gentleman Jose Miguel Arroyo, and Abalos, all of whom were alleged to have violated Republic Act No. 3019 and the Revised Penal Code.21
The complainants claimed that the contract with ZTE was highly questionable and grossly disadvantageous because the project's cost would be paid through a 15-year loan agreement, while AHI proposed to build the project for only US$240,000,000.00, which would not be shouldered by the government.22
For Neri, the complainants averred that he should be charged with dereliction of duties under Article 208 of the Revised Penal Code for maliciously refraining from instituting prosecution and tolerating the corruption surrounding the deal.23 He allegedly attempted to conceal the criminal acts surrounding the NBN-ZTE deal when he deliberately used executive privilege during the hearing.24
The complainants also alleged that, as the head of the National Economic and Development Authority, Neri had a hand in approving the deal because the agency's approval was required.25 To them, Neri's approval, despite admission that he was bribed, made him an accessory to the crime.26
A fact-finding investigation was conducted over the Complaint, which was consolidated with other cases.27 Neri was then administratively charged with grave misconduct and dishonesty.28
On April 21, 2009, the Office of the Ombudsman found29 Neri guilty of misconduct and suspended him for six months without pay:chanroblesvirtualawlibrary
PREMISES CONSIDERED, the undersigned panel members respectfully recommend the following:The Office of the Ombudsman ruled that there was substantial evidence showing that Neri committed grave misconduct. While he did not solely approve the project, he was deemed to have mediated—through the National Economic and Development Authority—between Abalos and ZTE.31 Further, it noted that Neri did not turn down the bribe, when as a public official, he should have flatly rejected the offer.32 It was also deemed highly improper for Neri to entertain Abalos by attending meetings, conferences, and golf games with ZTE officials.33
1) That the administrative case against LEANDRO R. MENDOZA, LORENZO G. FORMOSO III and ELMER A. SONEJA be DISMISSED for LACK OF SUBSTANTIAL EVIDENCE; 2) However, there being substantial evidence in the administrative case against ROMULO L. NERI, he is hereby found GUILTY of MISCONDUCT and is SUSPENDED without pay for SIX (6) MONTHS. The Office of the President thru the Executive Secretary is hereby DIRECTED to forthwith implement the penalty of suspension[.]
SO DECIDED.30
WHEREFORE, premises considered, the petition is DENIED. The assailed Joint Decision of the Office of the Ombudsman dated April 21, 2009 is hereby AFFIRMED with MODIFICATIONS in that Romulo R. Neri is only held guilty of SIMPLE MISCONDUCT and is directed to pay a FINE equivalent to his salary for six (6) months as penalty therefor.chanroblesvirtualawlibraryThe Court of Appeals found substantial evidence to declare Neri guilty of simple misconduct, particularly when he introduced Lozada to Abalos and processed the approval of ZTE's bid despite knowing the bribery involved. It reasoned that Neri should have avoided meeting the ZTE officials, as he was part of the body that would eventually approve the project. For his actions, Neri was found to have undermined the public's trust in the government.37
SO ORDERED.36 (Emphasis in the original)
Review of appeals filed before this court is "not a matter of right, but of sound judicial discretion[.]" This court's action is discretionary. Petitions filed "will be granted only when there are special and important reasons[.]"...However, this is not a hard and fast rule. This Court has laid down the following exceptions:chanroblesvirtualawlibrary
The Rules of Court require that only questions of law should be raised in petitions filed under Rule 45. This court is not a trier of facts. It will not entertain questions of fact as the factual findings of the appellate courts are "final, binding[,] or conclusive on the parties and upon this [c]ourt" when supported by substantial evidence. Factual findings of the appellate courts will not be reviewed nor disturbed on appeal to this court.
....
A question of fact requires this court to review the truthfulness or falsity of the allegations of the parties. This review includes assessment of the "probative value of the evidence presented." There is also a question of fact when the issue presented before this court is the correctness of the lower courts' appreciation of the evidence presented by the parties.96 (Citations omitted)
(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (2) When the inference made is manifestly mistaken, absurd or impossible; (3) Where there is a grave abuse of discretion; (4) When the judgment is based on a misapprehension of facts; (5) When the findings of fact are conflicting; (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) The findings of the Court of Appeals are contrary to those of the trial court; (8) When the findings of fact are conclusions without citation of specific evidence on which they are based; (9) When the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) The finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record.97 (Citations omitted)Nevertheless, even if questions of fact are raised in the petition, this Court is given the discretion to review and resolve the case. Under Rule 45, Section 6 of the Rules of Court:chanroblesvirtualawlibrary
SECTION 6. Review Discretionary. — A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered:chanroblesvirtualawlibraryIn this case, petitioner raises questions of fact in questioning the Court of Appeals' evaluation of evidence, claiming that his Petition falls under the recognized exceptions.98 However, the Office of the Ombudsman and the Court of Appeals arrived at similar findings.(a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so fax sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.99Public officers and employees hold in trust powers that they exercise in behalf of the public. Hence, they are held to higher standards than ordinary citizens to keep the people's faith in the State.100 In Rios v. Sandiganbayan:101
SECTION 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.For the Office of the Ombudsman to fully carry out its functions, it is granted disciplinary authority over government officials.105 In Office of the Ombudsman v. Court of Appeals:106chanrobleslawlibrary
[T]he Office of the Ombudsman [is vested with] full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty.107In administrative cases before the Office of the Ombudsman, the complainants must prove their allegations by substantial evidence. Substantial evidence is the "relevant evidence as a reasonable mind will accept as adequate to suppiprt a conclusion."108 This weight of evidence is satisfied if "there is reasonable ground to believe that one is guilty of the act or omission complained of, even if the evidence might not be overwhelming."109
[T]o be disciplined for grave misconduct or any grave offense, the evidence should be competent and must be derived from direct knowledge. There must be evidence, independent of the [offender's] failure to comply with the rules, which will lead to the foregone conclusion that it was deliberate and was done precisely to procure some benefit for themselves or for another person.121 (Citation omitted)Further, in grave misconduct, it is not required that the public officer's act equates to a crime.122
Respondents in this case failed to subscribe to the highest moral fiber mandated of the judiciary and its personnel. Their actions tainted their office and besmirched its integrity. In effect, both respondents are guilty of gross misconduct. This court defined misconduct as "a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer." In Camus v. The Civil Service Board of Appeals, this court held that "[m]isconduct has been defined as 'wrong or improper conduct and 'gross' has been held to mean flagrant; shameful'.... This Court once held that the word misconduct implies a wrongful intention and not a mere error of judgment."131 (Emphasis supplied, citations omitted)Akin to a member of the judiciary, petitioner in this case then occupied a highly regarded government position. As a public servant, he is held to high standards of integrity, and is expected to be free from any hint of impropriety and indecency in his conduct. The Constitution demands no less.
Endnotes:
* Designated additional Member per Special Order No. 2833.
1 Rollo (G.R. No. 212467), pp. 3-18. Filed under Rule 45 of the Rules of Court.
2 Id. at 407-418. The July 3, 2013 Decision in CA-G.R. SP. No. 114299 was penned by Associate Justice Edwin D. Sorongon and concurred in by Associate Justices Hakim S. Abdulwahid and Marlene Gonzales-Sison of the Sixth Division of the Court of Appeals, Manila.
3 Id. at 469-470. The May 5, 2014 Resolution in CA-G.R. SP. No. 114299 was penned by Associate Justice Edwin D. Sorongon and concurred in by Associate Justices Hakim S. Abdulwahid and Marlene Gonzales-Sison of the Sixth Division of the Court of Appeals, Manila.
4 Id. at 27.
5 Id. at 124.
6 Id. at 124, 408.
7 Id. at 408.
8 Id. at 408-109.
9 Id. at 409.
10 Id.
11 Id. at 409-410.
12 Id. at 410.
13 Id. at 28-29.
14 Id. at 30-31.
15 Id. at 32-33.
16 Id. at 146.
17 Id. at 146-149.
18 Id. at 33-35.
19 Id. at 35.
20 Id. at 26-44. The Complaint was filed by Teofisto T. Guingona, Jr., Harry L. Roque, Jr., Ma. Dominga B. Padilla, Roel Garcia, Bebu Bulchand, Fr. Jose P. Dizon, et al.
21 Id. at 27.
22 Id. at 28.
23 Id. at 43.
24 Id.
25 Id. at 43, 409.
26 Id. at 43-44.
27 Id. at 7. The case was consolidated with OMB-C-C-07-0397-I and OMB-C-A-0423-I entitled, "Cong. Carlos M. Padilla, House of Representatives vs. Sec. Leandro Mendoza, Undersecretary Lorenzo Formoso, et al." It was docketed as a criminal case (OMB-C-C-08-0039-B) and administrative case (OMB-C-A-08-0045-B) entitled "Teofisto Guingona, Jr. Harry L. Roque, Jr., Ma. Dominga B. Padilla, Roel Garcia, Bebu Bulchand, and Fr. Jose P. Dizon vs. Romulo Neri."
28 Id.
29 Id. at 123-173. The April 21, 2009 Decision was issued by Director Caesar D. Asuncion, Deputy Special Prosecutor Jesus A. Micael, Deputy Special Prosecutor Rober E. Kallos, Assistant Ombudsman Rodolfo M. Elman, and Deputy Ombudsman for the Military and Other Law Enforcement Offices Emilio A. Gonzalez III and approved by Overall Deputy Ombudsman Orlando C. Casimiro.
30 Id. at 172-173.
31 Id. at 168.
32 Id. at 170.
33 Id. at 170-171.
34 Id. at 201-208. The April 19, 2010 Order was issued by Director Caesar D. Asuncion, Deputy Special Prosecutor Jesus A. Micael, Deputy Special Prosecutor Robert E. Kallos, Assistant Ombudsman Rodolfo M. Elman, and Deputy Ombudsman for the Military and Other Law Enforcement Offices Emilio A. Gonzalez III and approved by Overall Deputy Ombudsman Orlando C. Casimiro.
35 Id. at 407-418.
36 Id. at 418.
37 Id. at 416.
38 Id.
39 Id.
40 Id. at 416-417.
41 Id. at 417.
42 Id. at 469-470.
43 Id. at 3-18. Petition for Review on Certiorari.
44 Id. at 486-546. Public respondent's Comment.
45 Id. at 555-564. Private respondents are Teofisto T. Guingona, Jr., Harry L. Roque, Jr., Ma. Dominga B. Padilla, Roel Garcia, Bebu Bulchand, and Fr. Jose P. Dizon.
46 Id. at 585-607.
47 Rollo (G.R. No. 212476), pp. 4 and 10.
48 Id. at 19.
49 Id. at 21-22.
50 Id. at 29.
51 Id. at 32.
52 Id. at 38.
53 Rollo (G.R. No. 212467), p. 13.
54 Id.
55 Id.
56 Id. at 13-14.
57 Id. at 14.
58 Id. at 14-15.
59 Id. at 16.
60 Id.
61 Id. at 486-546. Respondent's Comment.
62 Id. at 502-504.
63 Id. at 504-505.
64 Id. at 506.
65 Id. citing CONST., art. XI, sec I.
66 Id. at 507-508.
67 Id. at 508.
68 Id.
69 Id. at 508-509, citing Republic Act No. 6713 (1989), secs. 2, 4(a), (b), (c) provide:
Section 2. Declaration of Policies. — It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest.
....
Section 4. Norms of Conduct of Public Officials and Employees. — (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties:
(a) Commitment to public interest. — Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.
(b) Professionalism. — Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.
(c) Justness and sincerity. — Public officials and employees shall remain true to the people at all times. They must act with, justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs.
70 Id. at 509.
71 Id. at 510.
72 Id.
73 Id. at 511, citing Japson v. Civil Service Commission, 663 Phil. 665-678 (2011) [Per J. Nachura, En Banc].
74 Id. at 555-564. Private respondents are the same complainants in the original Complaint in this case.
75 Id. at 555.
76 Id. at 556
77 Id. at 556-557.
78 Id. at 557.
79 Id. at 559.
80 Id. at 558-559, citing Republic Act No. 3019. sec. 3(a), which provides:
Section 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of. the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.
81 Id. at 559.
82 Id. at 560.
83 Id. at 585-607.
84 Id. at 606.
85 Id. at 587
86 Id. at 588.
87 Id. at 594.
88 Id.
89 Id. at 594-595.
90 Id. at 595-596.
91 Id. at 596.
92 Id. at 597-598.
93 Id. at 605.
94 RULES OF COURT, Rule 45. sec. 1.
95 776 Phil. 167 (2016) [Per J. Leonen, Second Division].
96 Id. at 181-183.
97Medina v. Asistio, Jr., 265 Phil 225, 232 (1990) [Per J. Bidin, Third Division].
98 Rollo (G.R. No; 212467), p. 606.
99 CONST., art. XI, sec. 1.
100Canlas v. Bongolan, 832 Phil. 293 (2018) [Per J. Leonen, Third Division].
101 345 Phil. 85 (1997) [Per J. Romero, Third Division].
102 Id. at 91.
103 CONST., art. XI, sec. 12.
104Vergara v. Ombudsman, 600 Phil. 26 (2009) [Per J. Carpio, En Banc].
105 Office of the Ombudsman v. Samaniego, 586 Phil. 497 (2008) [Per J. Corona, En Banc].
106 524 Phil. 405, 429-430 (2006) [Per J. Callejo, Sr., First Division].
107 Id. at 429-430.
108Office of the Ombudsman v. Fetalvero, Jr., 836 Phil. 557, 567 (2018) [Per J. Leonen, Third Division].
109Office of the Ombudsman v. De Zosa, 751 Phil. 293, 299 (2015) [Per J. Perlas-Bernabe, First Division].
110 Id.
111Office of the Ombudsman v. Delos Reyes, Jr., 745 Phil. 366-384 (2014) [Per J. Leonen, Second Division].
112 Id. at 380-381.
113Office of the Ombudsman v. Espina, 807 Phil. 529, 540-541 (2017) [Per Curiam, First Division].
114Camus v. Civil Service Board of Appeals, 112 Phil. 301, 306 (1961) [Per J. Paredes, En Banc].
115Office of the Ombudsman v. Espina, 807 Phil. 529, 541 (2017) [Per Curiam, First Division].
116 Id.
117 Chavez v. Garcia, 783 Phil 563, 573 (2016) [Per J. Brion, Second Division].
118Imperial, Jr v. Government Service Insurance System, 674 Phil. 286, 297 (2011) [Per J. Brion, En Banc].
119 Id.
120 819 Phil. 282 (2017) [Per J. Leonen, Third Division].
121 Id. at 305.
122Government Service Insurance System v. Manalo, 795 Phil. 832-859 (2016) [Per J. Del Castillo, Second Division].
123 674 Phl. 284 (2011) [Per J. Brion, En Banc].
124 Id.
125Office of the Ombudsman v. Celiz, G.R. No. 236383, June 26, 2019, < http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65262> [Per J. A.B. Reyes, Jr., Third Division].
126 Id.
127 745 Phil. 366 (2014) [Per J. Leonen, Second Division].
128 Id.
129 736 Phil. 81. (2014) [Per Curiam, En Banc].
130 112 Phil. 301 (1961) [Per J. Paredes, En Banc].
131Sison-Barlas v. Rubia, 736 Phil. 81, 122 (2034) [Per Curiam, En Banc].
132 Comm. on Accountability of Public Officers and Investigations. S. Rpt 743, 14th Cong., 3rd Sess. (2009).
133 Id.cralawredlibrary