6 - Topacio v. Ong
6 - Topacio v. Ong
6 - Topacio v. Ong
BANC
[G.R. No. 179895. December 18, 2008.]
FERDINAND S. TOPACIO, petitioner, vs. ASSOCIATE
JUSTICE OF THE SANDIGANBAYAN GREGORY SANTOS
ONG and THE OFFICE OF THE SOLICITOR GENERAL,
respondents.
D E C I S I O N
CARPIOMORALES, J : p
The OSG, by letter of September 25, 2007, informed petitioner that it
"cannot favorably act on [his] request for the filing of a quo warranto
petition until the [RTC] case shall have been terminated with finality". 7
Petitioner assails this position of the OSG as being tainted with grave
abuse of discretion, aside from Ong's continuous discharge of judicial
functions.
Hence, this petition, positing that:
IN OCTOBER OF 1998, RESPONDENT WAS NOT DULY
QUALIFIED UNDER THE FIRST SENTENCE OF PARAGRAPH 1,
SECTION 7, OF THE 1987 CONSTITUTION, TO BE APPOINTED
AN ASSOCIATE JUSTICE OF THE SANDIGANBAYAN, MERELY
ON THE STRENGTH OF AN IDENTIFICATION CERTIFICATE
ISSUED BY THE BUREAU OF IMMIGRATION AND A 1ST
INDORSEMENT DATED 22 MAY 1997 ISSUED BY THE
SECRETARY OF JUSTICE, BECAUSE, AS OF OCTOBER 1998,
RESPONDENT'S BIRTH CERTIFICATE INDICATED THAT
RESPONDENT IS A CHINESE CITIZEN AND BECAUSE, AS OF
OCTOBER 1998, THE RECORDS OF THIS HONORABLE COURT
DECLARED THAT RESPONDENT IS A NATURALIZED FILIPINO
CITIZEN. 8 (Underscoring supplied)
Petitioner thus contends that Ong should immediately desist from
holding the position of Associate Justice of the Sandiganbayan since he is
disqualified on the basis of citizenship, whether gauged from his birth
certificate which indicates him to be a Chinese citizen or against his bar
records bearing out his status as a naturalized Filipino citizen, as declared
in Kilosbayan Foundation v. Ermita. DSIaAE
Ong, on the other hand, states that Kilosbayan Foundation v. Ermita
did not annul or declare null his appointment as Justice of the Supreme
Court, but merely enjoined him from accepting his appointment, and that
there is no definitive pronouncement therein that he is not a naturalborn
Filipino. He informs that he, nonetheless, voluntarily relinquished the
appointment to the Supreme Court out of judicial statesmanship. 9
By Manifestation and Motion to Dismiss of January 3, 2008, Ong
informs that the RTC, by Decision of October 24, 2007, already granted his
petition and recognized him as a naturalborn citizen. The Decision having,
to him, become final, 10 he caused the corresponding annotation thereof on
his Certificate of Birth. 11
Invoking the curative provisions of the 1987 Constitution, Ong
explains that his status as a naturalborn citizen inheres from birth and the
legal effect of such recognition retroacts to the time of his birth.
Ong thus concludes that in view of the RTC decision, there is no
more legal or factual basis for the present petition, or at the very least this
petition must await the final disposition of the RTC case which to him
involves a prejudicial issue.
The parties to the present petition have exchanged pleadings 12 that
mirror the issues in the pending petitions for certiorari in G.R. No. 180543,
"Kilosbayan Foundation, et al. v. Leoncio M. Janolo, Jr., et al", filed with this
Court and in CAG.R. SP No. 102318, "Ferdinand S. Topacio v. Leoncio M.
Janolo, Jr., et al.", 13 filed with the appellate court, both of which assail,
inter alia, the RTC October 24, 2007 Decision.
First, on the objection concerning the verification of the petition.
The OSG alleges that the petition is defectively verified, being based
on petitioner's "personal knowledge and belief and/or authentic records",
and having been "acknowledged" before a notary public who happens to
be petitioner's father, contrary to the Rules of Court 14 and the Rules on
Notarial Practice of 2004, 15 respectively. EHTISC
This technicality deserves scant consideration where the question at
issue, as in this case, is one purely of law and there is no need of delving
into the veracity of the allegations in the petition, which are not disputed at
all by respondents. 16
One factual allegation extant from the petition is the exchange of
written communications between petitioner and the OSG, the truthfulness
of which the latter does not challenge. Moreover, petitioner also verifies
such correspondence on the basis of the thereto attached letters, the
authenticity of which he warranted in the same affidavit. Other allegations
in the petition are verifiable in a similar fashion, while the rest are posed as
citations of law.
The purpose of verification is simply to secure an assurance that the
allegations of the petition or complaint have been made in good faith; or
are true and correct, not merely speculative. This requirement is simply a
condition affecting the form of pleadings, and noncompliance therewith
does not necessarily render it fatally defective. Indeed, verification is only a
formal, not a jurisdictional requirement. 17
In the same vein, the Court brushes aside the defect, insofar as the
petition is concerned, of a notarial act performed by one who is disqualified
by reason of consanguinity, without prejudice to any administrative
complaint that may be filed against the notary public. AEDISC
Certiorari with respect to the OSG
On the issue of whether the OSG committed grave abuse of
discretion in deferring the filing of a petition for quo warranto, the Court
rules in the negative.
Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words, where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent and gross
as to amount to an evasion of positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law. 18
The Court appreciates no abuse of discretion, much less, a grave
one, on the part of the OSG in deferring action on the filing of a quo
warranto case until after the RTC case has been terminated with finality. A
decision is not deemed tainted with grave abuse of discretion simply
because the affected party disagrees with it. 19
The Solicitor General is the counsel of the government, its agencies
and instrumentalities, and its officials or agents. In the discharge of its task,
the Solicitor General must see to it that the best interest of the government
is upheld within the limits set by law. 20
The pertinent rules of Rule 66 on quo warranto provide: cDTHIE
SEC. 1. Action by Government against individuals. — An
action for the usurpation of a public office, position or franchise may
be commenced by a verified petition brought in the name of the
Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully
holds or exercises a public office, position or franchise;
(b) A public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the forfeiture of his
office; or
(c) An association which acts as a corporation within the
Philippines without being legally incorporated or without lawful
authority so to act.
SEC. 2. When Solicitor General or public prosecutor
must commence action. — The Solicitor General or a public
prosecutor, when directed by the President of the Philippines, or
when upon complaint or otherwise he has good reason to believe
that any case specified in the preceding section can be established
by proof, must commence such action.
SEC. 3. When Solicitor General or public prosecutor may
commence action with permission of court. — The Solicitor General
or a public prosecutor may, with the permission of the court in which
the action is to be commenced, bring such an action at the request
and upon the relation of another person; but in such case the officer
bringing it may first require an indemnity for the expenses and costs
of the action in an amount approved by and to be deposited in the
court by the person at whose request and upon whose relation the
same is brought. (Italics and emphasis in the original)
In the exercise of sound discretion, the Solicitor General may
suspend or turn down the institution of an action for quo warranto where
there are just and valid reasons. 21 Thus, in Gonzales v. Chavez, 22 the
Court ruled:
Like the AttorneyGeneral of the United States who has
absolute discretion in choosing whether to prosecute or not to
prosecute or to abandon a prosecution already started, our own
Solicitor General may even dismiss, abandon, discontinue or
compromise suits either with or without stipulation with the other
party. Abandonment of a case, however, does not mean that the
Solicitor General may just drop it without any legal and valid
reasons, for the discretion given him is not unlimited. Its exercise
must be, not only within the parameters get by law but with the best
interest of the State as the ultimate goal. 23 cAHDES
Upon receipt of a case certified to him, the Solicitor General
exercises his discretion in the management of the case. He may start the
prosecution of the case by filing the appropriate action in court or he may
opt not to file the case at all. He may do everything within his legal authority
but always conformably with the national interest and the policy of the
government on the matter at hand. 24
It appears that after studying the case, the Solicitor General saw the
folly of relitigating the same issue of Ong's citizenship in the quo warranto
case simultaneously with the RTC case, not to mention the consequent risk
of forumshopping. In any event, the OSG did not totally write finis to the
issue as it merely advised petitioner to await the outcome of the RTC case.
Certiorari and Prohibition with respect to Ong
By petitioner's admission, what is at issue is Ong's title to the office
of Associate Justice of Sandiganbayan. 25 He claims to have been
constrained to file the present petition after the OSG refused to heed his
request to institute a suit for quo warranto. Averring that Ong is disqualified
to be a member of any lower collegiate court, petitioner specifically prays
that, after appropriate proceedings, the Court
. . . issue the writs of certiorari and prohibition against
Respondent Ong, ordering Respondent Ong to cease and desist
from further exercising the powers, duties, and responsibilities of a
Justice of the Sandiganbayan due to violation of the first sentence
of paragraph 1, Section 7, of the 1987 Constitution; . . . issue the
writs of certiorari and prohibition against Respondent Ong and
declare that he was disqualified from being appointed to the post of
Associate Justice of the Sandiganbayan in October of 1998,
considering that, as of October of 1998, the birth certificate of
Respondent Ong declared that he is a Chinese citizen, while even
the records of this Honorable Court, as of October of 1998,
declared that Respondent Ong is a naturalized Filipino; . . . 26
While denominated as a petition for certiorari and prohibition, the
petition partakes of the nature of a quo warranto proceeding with respect to
Ong, for it effectively seeks to declare null and void his appointment as an
Associate Justice of the Sandiganbayan for being unconstitutional. While
the petition professes to be one for certiorari and prohibition, petitioner
even adverts to a "quo warranto" aspect of the petition. 27
Being a collateral attack on a public officer's title, the present petition
for certiorari and prohibition must be dismissed. HIAEaC
The title to a public office may not be contested except directly, by
quo warranto proceedings; and it cannot be assailed collaterally, 28 even
through mandamus 29 or a motion to annul or set aside order. 30 In
Nacionalista Party v. de Vera, 31 the Court ruled that prohibition does not lie
to inquire into the validity of the appointment of a public officer.
. . . [T]he writ of prohibition, even when directed against
persons acting as judges or other judicial officers, cannot be treated
as a substitute for quo warranto or be rightfully called upon to
perform any of the functions of the writ. If there is a court, judge or
officer de facto, the title to the office and the right to act cannot be
questioned by prohibition. If an intruder takes possession of a
judicial office, the person dispossessed cannot obtain relief through
a writ of prohibition commanding the alleged intruder to cease from
performing judicial acts, since in its very nature prohibition is an
improper remedy by which to determine the title to an office. 32
Even if the Court treats the case as one for quo warranto, the petition
is, just the same, dismissible.
A quo warranto proceeding is the proper legal remedy to determine
the right or title to the contested public office and to oust the holder from its
enjoyment. 33 It is brought against the person who is alleged to have
usurped, intruded into, or unlawfully held or exercised the public office, 34
and may be commenced by the Solicitor General or a public prosecutor, as
the case may be, or by any person claiming to be entitled to the public
office or position usurped or unlawfully held or exercised by another. 35
Nothing is more settled than the principle, which goes back to the
1905 case of Acosta v. Flor, 36 reiterated in the recent 2008 case of
Feliciano v. Villasin, 37 that for a quo warranto petition to be successful,
the private person suing must show a clear right to the contested
office. In fact, not even a mere preferential right to be appointed thereto
can lend a modicum of legal ground to proceed with the action. 38
In the present case, petitioner presented no sufficient proof of a clear
and indubitable franchise to the office of an Associate Justice of the
Sandiganbayan. He in fact concedes that he was never entitled to assume
the office of an Associate Justice of the Sandiganbayan. 39
In the instance in which the Petition for Quo Warranto is filed
by an individual in his own name, he must be able to prove that he
is entitled to the controverted public office, position, or franchise;
otherwise, the holder of the same has a right to the undisturbed
possession thereof. In actions for Quo Warranto to determine title to
a public office, the complaint, to be sufficient in form, must show
that the plaintiff is entitled to the office. In Garcia v. Perez, this Court
ruled that the person instituting Quo Warranto proceedings on his
own behalf, under Section 5, Rule 66 of the Rules of Court, must
aver and be able to show that he is entitled to the office in dispute.
Without such averment or evidence of such right, the action may
be dismissed at any stage. 40 (Emphasis in the original) SACEca
The rightful authority of a judge, in the full exercise of his public
judicial functions, cannot be questioned by any merely private suitor, or by
any other, except in the form especially provided by law. 41 To uphold such
action would encourage every disgruntled citizen to resort to the courts,
thereby causing incalculable mischief and hindrance to the efficient
operation of the governmental machine. 42
Clearly then, it becomes entirely unwarranted at this time to pass
upon the citizenship of Ong. The Court cannot, upon the authority of the
present petition, determine said question without encroaching on and
preempting the proceedings emanating from the RTC case. Even petitioner
clarifies that he is not presently seeking a resolution on Ong's citizenship,
even while he acknowledges the uncertainty of Ong’s naturalborn
citizenship. 43
The present case is different from Kilosbayan Foundation v. Ermita,
given Ong's actual physical possession and exercise of the functions of the
office of an Associate Justice of the Sandiganbayan, which is a factor that
sets into motion the de facto doctrine.
Suffice it to mention that a de facto officer is one who is in
possession of the office and is discharging its duties under color of
authority, and by color of authority is meant that derived from an election or
appointment, however irregular or informal, so that the incumbent is not a
mere volunteer. 44 If a person appointed to an office is subsequently
declared ineligible therefor, his presumably valid appointment will give him
color of title that will confer on him the status of a de facto officer. 45
. . . A judge de facto assumes the exercise of a part of the
prerogative of sovereignty, and the legality of that assumption is
open to the attack of the sovereign power alone. Accordingly, it is a
wellestablished principle, dating back from the earliest period and
repeatedly confirmed by an unbroken current of decisions, that the
official acts of a de facto judge are just as valid for all purposes as
those of a de jure judge, so far as the public or third persons who
are interested therein are concerned. 46
If only to protect the sanctity of dealings by the public with persons
whose ostensible authority emanates from the State, and without ruling on
the conditions for the interplay of the de facto doctrine, the Court declares
that Ong may turn out to be either a de jure officer who is deemed, in all
respects, legally appointed and qualified and whose term of office has not
expired, or a de facto officer who enjoys certain rights, among which is that
his title to said office may not be contested except directly by writ of quo
warranto, 47 which contingencies all depend on the final outcome of the
RTC case. cCTaSH
With the foregoing disquisition, it becomes unnecessary to dwell on
the ancillary issues raised by the parties.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Puno, C.J., Quisumbing, YnaresSantiago, Carpio, AustriaMartinez,
Azcuna, Tinga, Velasco, Jr., Nachura, Reyes and Brion, JJ., concur.
Corona, J., is on official leave.
ChicoNazario and Leonardode Castro, JJ., took no part.
Footnotes
1. G.R. No. 177721, July 3, 2007, 526 SCRA 353. EICDSA
2. Id. at 367.
3. Vide rollo, pp. 2546.
4. Id. at 1922.
5. No person shall be appointed Member of the Supreme Court or any
lower collegiate court unless he is a naturalborn citizen of the Philippines. A
Member of the Supreme Court must be at least forty years of age, and must
have been for fifteen years or more, a judge of a lower court or engaged in
the practice of law in the Philippines. (Underscoring supplied)
6. Supra note 1.
7. Rollo, p. 24.
8. Id. at 78.
9. Vide footnote 16 of Comment, id. at 89.
10. Vide Entry of Judgment/Certificate of Finality of December 27, 2007, id.
at 123. DcITaC
11. Id. at 124, 127.
12. Petitioner filed a Counter Manifestation with Opposition to the Motion to
Dismiss, to which Ong filed a Reply. After petitioner filed a Rejoinder, Ong
filed a Comment ad cautelam, to which petitioner submitted a Reply.
13. Petitioner filed on February 13, 2008 a "Petition for Certiorari with Ad
Cautelam Motion to Certify to the Supreme Court" which also assails the
RTC Orders of October 30, 2007, November 7, 2007 and December 26,
2007 and calls for the reopening of the RTC proceedings. THEDcS
14. RULES OF COURT, Rule 7, Sec. 4, as amended, reads:
Except when otherwise specifically required by law or rule, pleadings need not
be under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and
that the allegations therein are true and correct of his personal knowledge or
based on authentic records.
A pleading required to be verified which contains a verification based on
"information and belief," or upon "knowledge, information and belief", or
lacks a proper verification, shall be treated as an unsigned pleading.
(Underscoring supplied)
15. Resolution of July 6, 2004 in A.M. No. 02813SC, Rule IV, Sec. 3 of
which reads:
A notary public is disqualified from performing a notarial act if he:
(a) is a party to the instrument or document that is to be notarized;
(b) will receive, as a direct or indirect result, any commission, fee,
advantage, right, title, interest, cash, property, or other consideration, except
as provided by these Rules and by law; or HAICcD
(c) is a spouse, commonlaw partner, ancestor, descendant, or
relative by affinity or consanguinity of the principal within the fourth civil
degree. (Underscoring supplied)
16. Alternative Center for Organizational Reforms and Development, Inc.
(ACORD) v. Zamora, G.R. No. 144256, June 8, 2005, 459 SCRA 578, 590
citing Decano v. Edu, 99 SCRA 410, 420 (1980).
17. Iglesia ni Cristo v. Ponferrada, G.R. 168943, October 27, 2006, 505
SCRA 828, 840841.
18. Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348,
363364.
19. Marohomsalic v. Cole, G.R. No. 169918, February 27, 2008, 547 SCRA
98.
20. Orbos v. Civil Service Commission, G.R. No. 92561, September 12,
1990, 189 SCRA 459.
21. Amante v. Hilado, 67 Phil. 338 (1939); cf Gumaru v. Quirino State
College, G.R. No. 164196, June 22, 2007, 525 SCRA 412, 423 holding that
the Solicitor General cannot refuse to represent the government without a
just and valid reason; cf. Commission on Elections v. Court of Appeals, G.R.
No. 108120, January 26, 1994, 229 SCRA 501 even insofar as control over
criminal cases before appellate courts is concerned.
22. G.R. No. 97351, February 4, 1992, 205 SCRA 816.
23. Id. at 838839.
24. Calderon v. Solicitor General, G.R. Nos. 10375253, November 25,
1992, 215 SCRA 876, 882.
25. Rollo, p. 257 as petitioner justifies his failure to implead the nominating
and appointing authority as indispensable parties whose official actions are
allegedly the very acts assailed.
26. Id. at 1415.
27. Vide id. at 254255, 257 where petitioner admits that the action consists
of both a quo warranto case and a certiorari case.
28. Gonzales v. COMELEC, et al., 129 Phil 7, 29 (1967).
29. Pilar v. Sec. of the DPWTC, et al., 125 Phil. 766 (1967).
30. Gamboa, et al. v. CA, et al., 194 Phil. 624 (1981).
31. 85 Phil. 126 (1949).
32. Id. at 133.
aHICDc
33. Sec. Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 302
(1998).
34. RULES OF COURT, Rule 66, Sec. 1.
35. RULES OF COURT, Rule 66, Sec. 5.
36. 5 Phil. 18 (1905).
37. G.R. No. 174929, June 27, 2008, 556 SCRA 348.
38. Vide Garcia v. Perez, 188 Phil. 43, 47 (1980).
39. Rollo, p. 9.
40. Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348,
366.
41. Tayko v. Capistrano, 53 Phil. 866, 872 (1928).
42. Tarrosa v. Singson, G.R. No. 111243, May 25, 1994, 232 SCRA 553.
43. Rollo, pp. 233234.
44. Civil Service Commission v. Joson, Jr., G.R. No. 154674, May 27,
2004, 429 SCRA 773, 786. aTEACS
45. Carlo Cruz, THE LAW OF PUBLIC OFFICERS (1999) 37 citing Regala
v. Court of First Instance of Bataan, 77 Phil. 684 (1946).
46. Tayco v. Capistrano, supra at 872873.
47. Ibid.