Decision pao retirees vs dbm v1 1

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REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL REGION BRANCH230 QUEZON CITY PUBLIC ATTORNEY'S OFFICE (PAO) RETIREES, NAMELY AMELIA C. GARCHITORENA, J. GUYOT, BONIFACIO CYNTHIA M. VARGAS, GAUDENCIO T. FINEZA, JR., ROMEO P. SUNGA, TERESITA S. DE GUZMAN, JESUS R. GARRUCHA, JR., MARCELO C. A. CABANA, REYNALDO CASAS, CARMEL ITO E. SUMILE, RENA TO T. CABRIDO, FLORENCIO M. DILOY, MAMA, MACAPANGCAT A. ELPIDIO C. BACUYAG, OSCAR T. MELAD and ARNULFO A. SINGSON, Petitioners, -versus-

CASE NO. R-QZN-16-05464-CV Extremely Urgent Petition for the Issuance of a Writ of Certiorari and a Writ of Mandamus (with Prayer for Damages) with Application for Issuance of a Temporary Restraining Order and Writ of Preliminary Injunction

DEPARMENT OF BUDGET AND HON. MANAGEMENT, FLORENCIO B. ABAD, and ROWENA CANDICE M. RUIZ, Legal Service Head, Department of Budget and Management, Respondents.

x-------------------------------------------------------------x DECISION Recognizing that they are vital actors in the administration of justice, the Congress enacted into law Republic Act No. 9406, otherwise known as the Public Attorney's Law (PAO Law), and Republic Act No. 10071,

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otherwise known as the National Prosecution Service Law (NAPROSS Law), which sought to place the salaries, qualifications for appointment, rank, salaries, allowances and retirement privileges of the public attorney and the public prosecutor to be at par with each other.

Republic Act No. 9406, entitled as "An Act Reorganizing and Strengthening the Public Attorney's Office (PAO), Amending for the Purpose Pertinent Provisions of Executive Order No. 292 Otherwise Known as The Administrative Code of 1987, As Amended, Granting Special Allowance to PAO Officials and Lawyers and Providing Funds Therefor", was enacted on 23 March 2007 and took effect on 16 April 2007.

Notable among its provisions is Section 5 thereof, which provides: Section 5. Section 16, Chapter 5, Title III, Book JV of Executive Order No. 292, as amended, is hereby further amended to read as follows: Section 16. The Chief Public Attorney and Other PAO Officials. The PAO shall be headed by a Chief Public Attorney and shall be assisted by two (2) Deputy Chief Public Attorneys. Each PAO Regional Office established in each of the administrative regions ~f the country shall be headed by a Regional Public Attorney who shall be assisted by an Assistant Regional Public Attorney. The authority and responsibility for the exercise of the mandate of the PAO and for the discharge ~fits powers and functions shall be vested in the Chief Public Attorney.

The Office of the Chief Public Attorney shall include his/her immediate staff. the six (6) line divisions in the Central Office, the Deputy Chief Public Attorneys and the Regional, Provincial, City and Municipal District Offices.

The Chief Public Attorney shall have the same qualifications for appointment, rank, salaries, allowances and retirement privileges as those of the Chief State Prosecutor of the National Prosecution Service. The Deputy Chief Public Attorneys shall have the same qualifications for appointment, rank, salaries, allowances, and retirement privileges as those of the Assistant Chief State Prosecutor of the National Prosecution Service.

The services herein created shall each be headed by a staff director who shall have the same qualifications for appointment, rank, salaries, allowances and privileges as those of staff director of the National Prosecution Service.

Each ~f the PAO Regional Offices shall be headed by a Regional Public Attorney who shall be assisted by an Assistant Regional Public Attorney.

The regional offices shall have such provincial, city and municipal district offices as may be necessary.

The Regional Public Attorney and the Assistant Regional Public Attorney shall have the same qualifications for appointment, rank, salaries, allowances, and retirement privileges as those of a Regional State

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Prosecutor and the Assistant Regional State Prosecutor of the National Prosecution Service, respectively.

The Provincial Public Attorney, City Public Attorney and the Municipal District Public Attorney shall have the same qualifications for appointment, rank, salaries, allowances and retirement privileges as those of a Provincial Prosecutor and City Prosecutor as the case may be, of the National Prosecution Service, respectively.

The other administrative personnel in the PAO shall have the rank and salaries equivalent to their counterpart in the National Prosecution Service.

Republic Act No. 10071, entitled "An Act Strengthening and Rationalizing the National Prosecution Service", was initially being deliberated upon by Congress simultaneous with the PAO Law but was enacted three (3) years later on 8 April 2010 and took effect on 28 May 2010.

Section 16 thereof provides: Section 16. Qualifications, Ranks, and Appointments of Prosecutors, and other Prosecution Officers. Prosecutor with the rank of Prosecutor V shall have the same qualification for appointment, rank, categoty, prerogatives, salary grade, and salaries, allowance, and emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefits as those of an associate justice of the Court of Appeals.

Prosecutors with the rank of Prosecutor IV shall have the same qualifications/or appointment, rank, categ01y, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqual(fications, and shall enjoy the same retirement and other benefit as those of a Judge of the Regional Trial Court.

Prosecutor with the rank of Prosecutor III shall shave the same qualifications for appointment, rank, category, prerogative, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court.

Prosecutor with the rank of Prosecutor II shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Municipal Trial Court in cities.

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Prosecutor with the rank of Prosecutor I shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court in municipalities.

Any increase after the approval of this Act in the salaries, allowances or retirement benefits or any upgrading of the grades or levels thereof of any or all of the Justices or Judges referred to herein to whom said emoluments are assimilated shall apply to the corresponding prosecutors.

All the above prosecutors shall be selected from among qualified and professionally trained members of the legal profession who are of proven integrity and competence. They shall be appointed by the President of the Philippines upon recommendation of the Secretwy of Justice and shall serve until they reach the age of sixty five (65) years old: Provided, however, That the ages of "seventy (70) years" and "sixty-five (65) years" and the years of service "twenty (20) years" provided in Republic Act No. 910, as amended, and other retirement laws for judges shall be understood as "sixty-five (65) years" and "sixty (60) years", and "fifteen (15) years", respectively when applied to prosecutors.

A prosecution attorney or 5pecial counsel shall be a member of the bar in good standing and shall have a salary under Salary Grade 25. Such prosecution officer shall be appointed by the Secretary of Justice: Provided, however, That with respect to a special counsel, his/her appointment shall be upon the recommendation of the provincial governor or city mayor and with the endorsement of the provincial prosecutor or city prosecutor, as the case may be.

Subject to Section 20 hereof, the salaries and allowances of regional, provincial and city prosecutors and their assistants, and the members of the prosecution staff, including the prosecution attorneys, shall be paid entirely out of national funds and included in the annual appropriations of the DOJ: Provided, however, That this provision is without prejudice to the grant of allowances to the above-mentioned prosecutors by their respective local governments in amount not exceedingfifty percent (50%) of their basic salaries; Provided, further, That the whole of the allowances or portion thereof, whether granted by the national or local government shall be exempt from the income tax.

The salaries, allowances and other emoluments herein fixed shall not apply to officers other than those of prosecutors in the National Prosecution Service, notwithstanding any provision of law assimilating the salaries of other officers to those herein mentioned.

As a consequence of the enactment of these two (2) laws, on 8 March 2013, Respondent DBM Secretary Florencio B. Abad and Government Service Insurance System (GSIS) President and General Manager Robert G. Vergara, signed DBM and GSIS Joint Circular No. 2013-1 providing for the Guidelines and Procedures in the Payment of Retirement Benefits Pursuant

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to Special Retirement Laws. 1 Respondent Secretary Abad of the DBM also signed Budget Circular No. 2013-1, dated 12 April 2013, which declared that the Public Attorney's Office (PAO) shall be covered by special retirement laws. 2 Accordingly, the GSIS Retirement Life Insurance Premium (RLIP) government share contribution was decreased from 12°/o to 3%, while the GSIS RLIP personal share contribution of the PAO was decreased from 9% to 3%, effective May 2010 or the date of effectivity of the NAPROSS Law. As a result thereof, the incumbent qualified public attorneys received their respective 6% GSIS RLIP personal share contribution differentials from the GSIS retroactive from May 2010. The GSIS also paid the Petitioners PAO retirees their retirement benefits as GSIS special members, of the GSIS counterpart thereof.

Thereafter, the PAO, in its letters, dated 15 May 2015, 27 May 2015 and 25 June 2015, requested from the DBM the release of funds in the total amount of One Hundred Thirty-Nine Million Nine Hundred Ninety-Six Thousand Thirty-Nine Pesos and Five Centavos (Php 139,996,039.05) to cover the retirement gratuity differential of thirty-nine (39) PAO retirees, who retired from the service from 29 May 2010 until 30 December 2014.3 On 6 August 2016, the DBM Legal Service received a Memorandum, dated 3 August 2016, requesting for legal opinion on the validity and propriety of releasing funds to cover the payment of requested retirement gratuity differentials of the said PAO retirees using the equivalent rates of the members of the judiciary. Through DBM Legal Service (LS) Opinion No. 14, dated 6 November 2015, issued by Respondent Director Rowena Candice M . Ruiz and approved by Undersecretary Dara C. Acusar, the DBM Legal Service opined that the retirement benefits under Section 16 of R.A. No. 10071, otherwise known as the NAPROSS Law, limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein."

On 11 March 2016 Respondent DBM Secretary Abad wrote a letter to Department of Justice (DOJ) Secretary Emmanuel L. Caparas informing him of DBM LS Opinion No. 14 and requesting for an opinion on the matter pursuant to its powers under Section 67, Chapter 14, Book IV of Executive 4 Order No. 292, otherwise known as the Administrative Code of 1987.

Upon being informed thereof, the PAO, in a letter, dated 28 March 2016, pointed out that the legal opinion was highly erroneous and was not in accord with the spirit and legislative intent of both the PAO and NAPROSS Laws. 5 On 28 March 2016 Respondent DBM Secretary Abad wrote another 1

2 3

4 5

Records, Volume 4-A, Exhibit "C", pp. 61 -65.

Ibid., Volume 4-A, Exhibit "D", pp. 65-71.

Ibid., Volume 4-8, Exhibits "T", "T-1" and "T-2", pp. 609-663.

Ibid., Volume 4-A, Exhibit "G", pp. 219-220.

Ibid., Volume 4-A, Exhibit "P-6", pp. 508-523.

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letter to DOJ Secretary Caparas informing the latter of the proposed 2017 Forward Estimates (FEs) for the DOJ in the amount of Php 16,991,408,000.006 which reflected an increase in the GSIS RLIP government share contribution for PAO employees from 3o/o to 12%.

In an Order, dated 31 March 2016, DOJ-OSEC Chief State Counsel Ricardo V. Paras III called for a preliminary conference for the arbitration case initiated by the DBM docketed by DOJ Legal Service Chief State Counsel Ricardo V. Paras as OSJ Case No. I-2016, entitled "Department of Budget and Management versus Public Attorney's Office". 7 In a letter, dated 11 April 2016, the PAO manifested its objection thereto on the ground of lack of jurisdiction. 8 During the scheduled preliminary conference, the PAO was informed that the matter shall no longer be deemed as an arbitration case but the Department of Justice, through the Secretary of Justice, shall nonetheless issue a legal opinion.

Meanwhile, during the 11 May 2016 DBM Technical Budget Hearing for PAO, Director Ma. Soledad G. Doloiras, formerly Director of DBM Bureau assigned to DOJ Budget, and now BMB for Security, Peace and Justice Sector, announced that Respondent DBM shall push through with its proposed increase in the RLIP allocation for the 2017 Forward Estimates for the Department of Justice, pending issuance by the DOJ of its legal opinion. 9 Construing the announcement as an overt move by the Respondents to increase the GSIS RLIP government share contribution for the PAO from 3% to 12%, with or without the legal opinion from the DOJ, and deeming the same as effectively a denial of their request for the release of funds to cover their retirement gratuity differential, the Petitioners, all retirees of the Public Attorney's Office, filed the instant Extremely Urgent Petition for the Issuance of a Writ of Certiorari and a Writ of Mandamus (with Prayer for Damages) with Application for Issuance of a Temporary Restraining Order and Writ of Preliminary Injunction.

To restrain Respondent DBM from increasing the RLIP allocation for the 2017 Forward Estimates for the Department of Justice, pending issuance by the DOJ of its legal opinion, Petitioners sought the issuance of a Temporary Restraining Order.

By Order, dated 15 June 2016, Petitioners' application for issuance of a Temporary Restraining Order was denied. 10

6

Id., Volume 4-A, Exhibit "P-7", pp. 524-532.

Ibid., Volume 4-A, Exhibit "H", pp. 222-223.

8 Ibid., Volume 4-A, Exhibit 111111 pp. 224-239.

9 Ibid., Volume 6, Memorandum Ad Caute/am by Petitioners, dated 6 October 2016, par. (r}, p. 75 (p. 12).

10 Ibid., Volume 3, Order, dated 15 June 2016, pp. 152-159.

7

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R~ZN-16-05464-CV

On 17 June 2016, hearing on the application for the issuance of a Writ of Preliminary Injunction ensued during which the Petitioners presented Senator Juan Ponce Enrile 11 and Atty. Cynthia Vargas as witnesses. 12

By Order, of even date, with the Petitioners having filed a Motion for Reconsideration of its 15 June 2016 Order, 13 Respondents were directed to file their Comment thereto. The same was filed on 7 July 2016 .14 Additionally, as requested, Respondents were directed to file their Comment to the Petition. The Comment was filed on 2 August 2016. 15 16

On 1 August 2016 Petitioners filed Manifestation and Motion informing the Court that in an Urgent Memorandum, dated 7 July 2016, addressed to Chief Public Attorney Persida V. Rueda-Acosta and signed by DOJ Assistant Secretary Adonis P . Sulit, the GSIS RLIP government share allocation for the PAO was not increased to twelve percent (12%) but remains to be at three percent (3%). The development was also reflected in the letter signed by the new DBM Secretary, Benjamin E. Diokno, addressed to the new DOJ Secretary, Vitaliano N . Aguirre II. Thus, by Order, dated 4 August 2016, the issue on the matter of the issuance of a Temporary Restraining Order was rendered moot and academic and the Petitioners' Motion for Reconsideration was deemed . hdrawn. 17 wit Meanwhile, by Order, dated 29 July 2016, upon agreement that the application for writ of preliminary injunction, writ of mandamus and petition for certiorari and damages shall be heard jointly and simultaneously as the issues were interrelated, the parties were directed to file their respective Pre18 Trial Briefs. Petitioners filed their Pre-Trial Brief on 17 August 2016.

Respondents filed their Pre-Trial Brief on 9 August 2016. 19 It was further agreed upon that the Court shall continue to receive the testimonies of the witnesses, with the testimonies of the witnesses earlier given in support of the application for the writ of preliminary injunction being adopted as testimonies in support of the main petition. Thus, on 29 20 and, on 5 July 2016, the testimony of Representative Teodoro Casino; August 2016, the testimonies of Chief Public Attorney Persida V. RuedaAcosta21 and Atty. Reynaldo A. Casas22 , were presented and concluded.

11

Id., TSN Folder, dated 17 June 2016, pp. 120-164.

Ibid., TSN Folder, dated 17 Jun e 2016, pp. 165-199.

13 Ibid., Volume 3, Order, dated 17 June 2016, pp. 163-165.

14 Ibid., Volume 4, pp. 43-48.

15 Ibid., Volume 4, pp. 136-160.

16 Ibid., Volume 4, pp. 97-102.

17 Ibid., Volume 6, Order, dated 4 August 2016, pp.246-247.

18 Ibid., Volume 4, pp. 310-356.

19 Ibid., Volume 4, pp. 300-308.

20 Ibid., TSN Folder, 29 July 2016, pp. 225-251.

21 Ibid., TSN Folder, dated 5 August 2016, pp. 311-324.

12

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Thereafter, by way of Manifestation, the Respondents informed the Court of the Official Statement issued by the new DBM Secretary, Benjamin E. Diokno, dated 13 September 2016. 23 On 22 September 2016, Petitioners filed a Manifestation clarifying the earlier Official Statement issued by DBM Secretary Benjamin E. Diokno.24 On 23 September 2016, Petitioners filed Counter-Manifestation thereto with Omnibus Motion to expunge the affidavits of Respondents' witnesses from the records for being violative of the Judicial Affidavit Rule. 25

By Order, dated 29 September 2016, the judicial affidavits of Respondents' witnesses were expunged from the records and, with no other witnesses to present, the parties were directed to file their respective memorandum. 26 On 5 October 2016, Respondents filed a Motion for Leave to Admit Replacement Judicial Affidavits of Witnesses.27 The Petitioners opposed the motion.28 In its Order, dated 4 November 2016, the Court resolved to deny Respondents' motion. 29 Thereafter, the parties having already filed their respective memorandum, the petition was submitted for resolution. 30

*** At the outset, before making any determination on the issues at hand, it should be pointed out that the Petition is not an action for Declaratory Relief. This is clear from the absence of requisites that would qualify it as such and the reliefs sought in the petition.

Declaratory Relief is defined as an action by way any person interested in a deed, will, contract, or other written instrument, executive order or resolution, to determine any question of construction or validity arising from the instrument, executive order or regulation, or statute; and, for a declaration of his rights and duties thereunder. The only issue that may be 22

Id., TSN Folder, dated 5 August 2016, pp. 252-310.

Ibid., Volume 5, p. 31.

24 Ibid., Volume 5, pp. 28-31.

25 Ibid., Volume 5, pp.63-75.

26 Ibid., Volume 5, Order, dated 29 November 2016, pp. 90-93.

27 Ibid., Volume 6, pp. 1-6.

28 Ibid., Volume 6, pp. 217-223.

29 Ibid., Volume 6, Order, dated 4 November 2016, pp. 271-273.

30 Ibid., Volume 6, Order, dated 29 November 2016, pp. 274-275.

23

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raised in such a petlt10n is the question of construction or validity of . . . .

31 prov1s10ns man mstrument or statute.

Decisional law enumerates the requisites of an action for Declaratory Relief, as follows: (1) the subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order, or regulation, or ordinance; (2) the terms of said documents and the validity thereof are doubtful and require judicial construction; (3) there must have been an actual justiciable controversy or the "ripening seeds" of one between persons whose interests are adverse; (5) the issue must be ripe for judicial determination; and (6) adequate relief is not available through other means 32 or other forms of action or proceeding.

It is Petitioners' posture that the second reqms1te is not attendant since, to their mind, there is no doubt relative to the terms and validity of the 33 PAO Law in relation to the NAPROSS Law. Thus, while Petitioners argue that the enactment of the NAPROSS Law did not expressly or impliedly repeal the PAO Law, the Petitioners made it clear that they were not seeking a judicial interpretation or a judicial construction of these laws. Rather, Petitioners pray that this Court issue the following:

(a) A Writ of Certiorari to annul and set aside DBM LS Opinion No. 14, dated 6 November 2015, issued by Respondent Rowena Candice M. Ruiz, Legal Service Head, Department of Budget and Management (DBM), which was affirmed by Respondent Secretary Florencio B. Abad by withholding the release of the retirement benefits of the Petitioners PAO retirees; (b) A Writ of Mandamus commanding Respondents to immediately release the retirement benefits of the Petitioners PAO retirees on the ground that the PAO Law grants retirement benefits to the Petitioners PAO retirees similar as those of the prosecutors under the NAPROSS Law; (c) A Temporary Restraining Order (TRO), Writ of Preliminary Injunction, thereafter a Permanent Injunction, to enjoin Respondent DBM and DBM Secretary Abad to maintain the status quo, i.e., the government share in the Government Service Insurance System (GSIS) Retirement and Life Insurance Premium (RLIP) for incumbent public attorneys shall remain at three percent (3o/o); and

31

Province of Camarines Sur v. Honorable Court of Appeal, et al., G.R. No. 175064, dated 18 September 2009.

32 Almeda, et al., v. Bathala Marketing Industries, Inc., G.R. No. 150806, dated 28 January 2008.

33 TSN Folder (Clarificatory Hearing), dated 17 June 2016, pp. 113-114.

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(d) An Order for Respondents to pay the petitioners PAO retirees actual and compensatory damages in the form of interests on the amount of the retirement benefits due the petitioners; the amount of Php 400,000 .00 by way of exemplary damages; and, Php 400,000.00 by way of moral damages.

By the nature of the petition therefore, as well as the reliefs prayed for, an interpretation or construction of the NAPROSS Law in relation to the PAO Law would not be proper and should not be expected of this Decision.

Assuming arguendo that such relief is sought, this Court cannot resort to judicial construction.

First. The payment of the retirement benefits of Petitioners PAO retirees under the PAO Law in relation to the NAPROSS Law is an issue best addressed to the agency tasked with the primary jurisdiction of ascertaining the same. In this case, it is the Respondent Department of Budget and Management and the Government Service Insurance System (GSIS) since these are the agencies which, through GSIS Joint Circular No. 2013-1 and Budget Circular No. 2013-1, declared that the PAO shall be covered by special retirement laws and, as a result thereof, the GSIS RLIP government share contribution shall be decreased from 12% to 3%, while the GSIS RLIP personal share contribution of the PAO shall be decreased from 9% to 3%, effective May 2010 or the date of effectivity of the NAPROSS Law. As a result thereof, incumbent qualified public attorneys received their respective 6% GSIS RLIP personal share contribution differentials from the GSIS retroactive from May 2010. The GSIS also paid the PAO retirees their retirement benefits as GSIS special members, of the GSIS counterpart thereof. It was as a consequence of such declaration that Petitioners PAO retirees now claim that there is still a balance owing them that has yet to be released by Respondent DBM.

As a rule, judicial intervention is allowed only after exhaustion of administrative remedies. This principle goes hand-in-hand with the Doctrine of Primary Jurisdiction, which precludes courts from resolving, in the first instance, controversies falling under the jurisdiction of administrative agencies. The Court recognizes that administrative agencies are better equipped to settle factual issues within their specific field of expertise because of their special skills and technical knowledge. For this reason, a premature invocation of the court's judicial power is often struck down, unless it can be shown that the case falls under any of the applicable exceptions.34

34

Cabungcal, et al., v. Lorenzo, et al., G.R. No. 160367, dated 18 December 2009.

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In this case, the exception sought does not apply. The question of whether the Petitioners PAO retirees are entitled to retirement benefits would require a review and interpretation of GSIS Joint Circular No. 2013-1 and Budget Circular No. 2013-1, in relation to the PAO Law and the NAPROSS Law. This issue is best ventilated in the administrative agencies concerned, i.e., the Department of Budget and Management, the Government Service Insurance System (GSIS) and the Department of Justice. Any decision or resolution which shall be issued by these departments acting through the Department Secretary or Head of the Agency concerned shall thereafter be subject to the review and approval of the Office of the President exercising appellate jurisdiction or review authority over these departments or agencies.

Second. There is no ambiguity in the words of GSIS Joint Circular No. 2013-1 and Budget Circular No. 2013-1, in relation to the PAO Law and the NAPROSS Law. The validity of the NAPROSS Law in relation to the PAO Law and vice versa is also not being questioned.

It is undisputed that, as a consequence of the enactment of the NAPROSS Law in relation to the PAO Law, Respondent DBM Secretary Florencio B. Abad and GSIS President and General Manager Robert G. Vergara, signed DBM and GSIS Joint Circular No. 2013-1 providing for the Guidelines and Procedures in the Payment of Retirement Benefits Pursuant to Special Retirement Laws. 35 There is likewise no dispute that respondent Secretary Abad of the DBM also signed Budget Circular No. 2013-1, dated 12 April 2013, which declared that the PAO shall be covered by special retirement laws. 36 Accordingly, the GSIS Retirement Life Insurance Premium (RLIP) government share contribution was decreased from 12% to 3%, while the GSIS RLIP personal share contribution of the PAO was decreased from 9°/o to 3%, effective May 2010 or the date of effectivity of the NAPROSS Law. As a result thereof, the incumbent qualified public attorneys received their respective 6% GSIS RLIP personal share contribution differentials from the GSIS retroactive from May 2010. The GSIS also paid the PAO retirees their retirement benefits as GSIS special members, of the GSIS counterpart thereof.

On the basis of these declarations and incidents, the PAO, in its letters, dated 15 May 2015, 27 May 2015 and 25 June 2015, requested from the DBM the release of funds in the total amount of One Hundred and Thirty Nine Million Nine Hundred Ninety-Six Thousand Thirty-Nine Pesos and Five Centavos (Php 139,996,039.05) to cover the retirement gratuity differential of thirty-nine (39) PAO retirees, who retired from the service from 29 May 2010 until 30 December 2014 .

Petitioners find exception to the issuance of DBM LS Opinion No . 14, dated 6 November 2015, by Respondent Director Rowena Candice M. Ruiz 35

36

Supra, note 1.

Supra, note 2.

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and approved by DBM Undersecretary Dara C. Acusar, which opined that the retirement benefits under Section 16 of R.A. No. 10071, otherwise known as the NAPROSS Law, limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein." Petitioners further find it questionable for Respondent DBM Secretary Abad to refer the matter to then DOJ Secretary Emmanuel L. Caparas and inform the latter of the increase in the GSIS RLIP government share contribution for PAO employees from 3% to 12% as reflected in the 2017 Forward Estimates thereby paving the way for the controversy to be considered an arbitration case.

It should be noted, however, that DBM LS Opinion No. 14 did not overturn, reverse or declare null and void the actions of Respondent DBM Secretary Florencio B. Abad and GSIS President and General Manager Robert G. Vergara, in signing DBM and GSIS Joint Circular No. 2013-1 providing for the Guidelines and Procedures in the Payment of Retirement Benefits Pursuant to Special Retirement Laws.37 Neither did it overturn, reverse or declare null and void the action of Respondent DBM Secretary Abad in signing Budget Circular No. 2013-1, dated 12 April 2013, which declared that the PAO should be covered by special retirement laws.

While DBM LS Opinion No. 14 may have opined the retirement benefits under Section 16 of R.A. No. 10071, otherwise known as the NAPROSS Law, limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein", the same remains to be an opinion which did not, and should not be deemed to have, invalidate(d) the actions of Respondent DBM Secretary Abad and GSIS President and General Manager Vergara who both found the members of the PAO to be covered by special retirement laws.

A fortiori, neither did DBM LS Opinion No. 14 make a pronouncement that the NAPROSS Law repealed the PAO Law such that Section 5 of the PAO Law should be declared null and void in relation to Section 16 of the NAPROSS Law. Again, while it may have opined that the retirement benefits under Section 16 of the NAPROSS Law limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein", the same is only of persuasive value but not conclusive upon any of the Department Secretaries or Heads of Agency concerned.

Judicial construction is unnecessary where there is no ambiguity.

Judicial exercise cannot be exercised in vacuo. The policy of the courts is to avoid ruling on a constitutional question and to presume that the acts of the 37

Supra, note 1.

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political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. 38 In the absence of a judicial declaration of ambiguity, therefore, GSIS Joint Circular No. 2013-1 and Budget Circular No. 2013-1, in relation to the PAO Law and the NAPROSS Law, and vice versa, stands.

To reiterate and emphasize, the petition does not seek for a judicial construction or interpretation of the PAO Law in relation to the NAPROSS Law and vice versa.

Rather, for determination is the issue of whether the remedies of certiorari, mandamus and preliminary injunction are legally availing in favor of the petitioners against the respondents.

The Court shall now rule.

PETITION FOR CERTIORARI

Petitioners claim that Respondents DBM, DBM Secretary Abad and DBM Director Ruiz have acted without or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, in rendering DBM LS Opinion No. 14, which opined that the retirement benefits under Section 16 of R.A. No. 10071, otherwise known as the NAPROSS Law, limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein" and thereby excluding the public attorneys, without giving the Petitioners and the PAO an opportunity to be heard and despite principles on statutory construction pointing to a contrary interpretation; and, on the basis thereof, increasing the GSIS Retirement and Life Insurance Premium (RLIP) allocation for the 2017 Forward Estimates and withholding the release of the Petitioners' retirement benefits.

In their verified Petition, Petitioners PAO retirees assail the move of Respondent DBM to increase the GSIS RLIP government share contribution of qualified public attorneys from 3% to 12% on the basis of DBM LS Opinion No. 14, issued by Respondent Atty. Rowena Candice M. Ruiz, Legal Service Head, DBM, and affirmed by Respondent DBM Secretary Florencio B. Abad, thereby effectively withholding the release of their retirement benefits.

Petitioners contend that Respondent Atty. Ruiz committed grave abuse of discretion in rendering DBM LS Opinion No. 14 which declared that the retirement benefits under Section 16 of the NAPROSS Law limits its application only to prosecutors given the phrase "notwithstanding any 38

Vide Atlas Consolidated Mining Corporation v. Court of Appeals, 182 SCRA 166.

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provision of law assimilating the salaries of other officers to those mentioned herein" and thereby excluding the public attorneys, despite statutory construction pointing to a contrary interpretation and it being violative of the equal protection clause.

Petitioners further contend that Respondent DBM Secretary Florencio B. Abad committed grave abuse of discretion in relying on the said DBM LS Opinion No. 14 and increasing the GSIS RLIP government share allocation for the PAO in the 2017 Forward Estimates on the sole basis of said opinion; in relying on the said Opinion when Section 16 of the NAPROSS Law did not expressly repeal Section 5 of the PAO Law; in relying on the said Opinion despite it being contrary to the legislative intent of both the NAPROSS Law and the PAO Law; and, in relying on the said Opinion despite the PAO being an independent and autonomous office, attached only to the DOJ in accordance with Section 38 (3), Chapter 7 of Book IV of the Administrative Code only for purposes of policy and program coordination and, thus, not officers of the DOJ. Petitioners impute serious neglect and refusal to perform a duty upon Respondent DBM, through Respondent DBM Secretary Abad, when it reversed itself after recognizing the PAO employees as special members covered by special retirement laws. According to Petitioners, such a change of position by the DBM is tantamount to a diminution and impairment of their retirement benefits to which they have a vested right.

Let us consult the law.

Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides: Section 1. Petition for Certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess ofjurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings ~f such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

Elsewise stated, for a writ of certiorari to issue, the following requisites must concur: (1) it must be directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions ; (2) the tribunal, board, or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting [to] lack or excess of jurisdiction; and (3)

DECISION Civil Case No. R-QZN-16-05464-CV Page15of42

there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. 39

It must be directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions

Respondents argue that certiorari will not lie against them as they could not be deemed to be a tribunal, board or officer exercising judicial or quasi-judicial functions . Particularly, Respondent DBM is not among the agencies identified under Section 1, Rule 43 of the Rules of Court to be performing and exercising quasi-judicial agency given that its primordial mandate is to fonnulate and implement the national budget. For the same reason, Respondents Secretary Abad and Atty. Ruiz, both holding office in the said department, cannot be considered as officers exercising judicial or quasi-judicial functions .

The Court disagrees.

Indeed, Section I of Rule 43 of the Rules of Court provides for an enumeration of agencies exercising quasi-judicial functions. To wit: Section J. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgment, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 665 7, Government Service Insurance System, Employees Compensation Commission, Agricultural Investments Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission and voluntary arbitrators authorized by law.

However, it has been established that the above-mentioned law merely mentions several quasi-judicial agencies without exclusivity in the phraseology.

In United Coconut Planters Bank, et al., vs. E. Ganzon, Inc., 40 the Court had occasion to discuss that the enumeration of the agencies therein 39

Liga ng mga Barangay National v. City Mayor of Manila, G.R. No . 154599. January 21, 2004,465 Phil. 529.

40 G.R. Nos. 168859 and 168897, dated 30 June 2009; The Monetary Board, Bangko Sentral ng Pilipinas, et al., v. Philippine Veterans Bank, G.R. No. 189571, dated 21 January 2015, 564 SCRA 584, 597.

DECISION Civil Case No. R-QZN-16-05464-CV Page16of42

mentioned is not exclusive. The introductory phrase "[a]mong these agencies are" preceding the enumeration of specific quasi-judicial agencies only highlights the fact that the list is not meant to be exclusive or conclusive.

Further, the overture stresses and acknowledges the existence of other quasijudicial agencies not included in the enumeration but should be deemed included. Thus, it was held: It bears stressing that Section 9(3) of Batas Pambansa Big. 129, as

amended, on the appellate jurisdiction of the Court of Appeals, generally refers to quasi-judicial agencies, instrumentalities, boards or commissions. The use of the word "including" in the said provision, prior to the naming of several quasi-judicial agencies, necessarily conveys the very idea of non-exclusivity of the enumeration. The principle of expressio unius est exclusio alterius does not apply where other circumstances indicate that the enumeration was not intended to be exclusive, or where the enumeration is by way of example only.

Similarly, Section l , Rule 43 of the 1997 Revised Rules of Civil Procedure merely mentions several quasi-judicial agencies without exclusivity in the phraseology. The enumeration of the agencies therein mentioned is not exclusive. The introductory phrase "[a]mong these agencies are" preceding the enumeration of specific quasi-judicial agencies only highlights the fact that the list is not meant to be exclusive or conclusive. Further, the overture stresses and acknowledges the existence of other quasi-judicial agencies not included in the enumeration but should be deemed included.4 1

Accordingly, it is erroneous for Respondent DBM to conclude that its non-inclusion in the list so enumerated under Section 1, Rule 43 of the Rules of Court automatically excludes it from being classified as a quasi-judicial agency.

On the contrary, in issuing the assailed DBM LS Opinion No. 14, Respondents clearly acted as a quasi-judicial agency performing a quasijudicial function.

A "quasi-judicial agency" or body is an organ of government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. The very definition of an administrative agency includes its being vested with quasi-judicial powers.

The ever increasing variety of powers and functions given to administrative agencies recognizes the need for the active intervention of administrative agencies in matters calling for technical knowledge and speed in countless controversies which cannot possibly be handled by regular courts. A "quasijudicial function" is a term which applies to the action, discretion, etc. of 41

Supra, note 32.

DECISION Civil Case No. R-QZN-16-05464-CV Page17of42

public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a . dicrn .. 1. nature.42 JU In Liga ng mga Barangay National v. City Mayor of Manila, it was held that there was performance of quasi-judicial function when there is a law that gives rise to some specific rights of persons or property under which adverse claims to such rights are made, and the controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with power and authority to determine the law and adjudicate the respective rights of the contending parties.43 In this case, Respondents elaborated in their Memorandum, dated 10 October 2016, that the DBM, through the Legal Service, functioned as follows: 1. That in accordance with Department Order No. 2015-7 and D.O. No. 2009-7, the Legal Service is mandated to render legal advice on various issues raised by other DBM units;44

2. That pursuant to the letter-requests filed by the Public Attorney's Office (PAO), dated 15 and 27 May 2015 and 25 June, before the Department of Budget and Management (DBM) for the release of the retirement gratuity differentials of the thirty-nine (39) PAO retirees, the Legal Service issued DBM LS Opinion No. 14, dated 6 November 2015 ¡45 '

3. That in the DBM LS Opinion No. 14, dated 6 November 2015, the Legal Service opined that the retirement benefits under the last paragraph of Section 16 of R.A. No. 10071 limits its application only to Prosecutors applying a basic rule in statutory construction;46 and 4. That in arriving at the assailed Opinion, the Legal Service, upon receipt of the request for legal advice, evaluated the facts as represented as well as the applicable laws and jurisprudence to come up with an opinion.47

42

Supra, note 32.

Liga ng mga Barangay National v. City Mayor of Manila, G.R. No. 154599. January 21, 2004,465 Phil. 529 44 Ibid., Volume 6, Memorandum Ad Cautelam by Respondents, dated 10 October 2016, par. 12, p. 236 {p.4).

45 Ibid., par. 14, p. 237 (p. 5).

46 Supra, note 5.

47 Ibid., Volume 6, M emorandum Ad Cautelam by Respondents, dated 10 October 2016, par. 38, p 244 (p.12).

43

DECISION Civil Case No. R-QZN-16-05464-CV Page18of42

Applying the definition and indicators of a "quasi-judicial function" as above-quoted and a careful perusal of the actions performed by the Legal Service would reveal that Respondents, in issuing DBM LS Opinion No. 14, dated 6 November 2015, indeed performed a quasi-judicial function .

One, the Letter-Requests filed by the PAO, dated 15 and 27 May 2015 and 25 June, before Respondent DBM for the release of the retirement gratuity differentials of herein Petitioners thirty-nine (39) PAO retirees was based on the retiree ' s right as provided under Section 5 of R.A. No. 9406, the PAO Law, granting the PAO lawyers the same retirement benefits as those of equivalent rank of Prosecutors of the National Prosecution Service (NPS) as provided under R.A . No. 10071 , the NAPROSS Law; Two, the Respondents, through its Legal Service, upon receipt of the request for legal advice, evaluated the facts as well as the applicable laws and jurisprudence to come up with an opinion; and, Three, the Respondents, through its Legal Service, made an adjudication of rights of the PAO retirees over their retirement benefits when it issued DBM LS Opinion No. 14, dated 6 November 2015, declaring that the retirement benefits under the last paragraph of Section 16 of the NAPROSS Law limits its application only to prosecutors, the Petitioners PAO retirees being excluded therefrom.

It is further worthy to note that even DOJ Secretary Emmanuel L. Caparas, in his Opinion No. 36, dated 16 June 2016, classified the issue brought before the Legal Service as one involving substantive rights of private parties, to wit: Secondly, the issue raised involves the substantive rights of private parties, i.e. , the retired PAO lawyers. Since the opinion of the Secretruy of Justice is merely advisory in nature, such opinion would not be binding upon the private parties who may be adversely affected thereby and who may, in all probability, take issue therewith and contest the same before the comts. As a matter of policy, therefore, the Secretary of Justice has consistently refrained from rendering opinion on questions that are justiciable in nature or can be the subject of litigation before the courts (and those that are subjudice).48

Considering the nature of the acts performed by the Respondents, through its Legal Service, it cannot be denied that Respondents performed a quasi-judicial function reviewable by a Petition for Certiorari under Rule 65 of the Rules of Court.

48

Id., Volume 4, Comment/Opposition to Petition by Respondents, dated 27 July 2016, citing Legal Opinion No. 36 by Department of Justice Secretary Emmanuel L. Caparas, dated 16 June 2016, p.

141 (p. 6).

DECISION Civil Case No. R-QZN-16-05464-CV Page 19of42

The tribunal, board, or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting [to] lack or excess ofjurisdiction.

In their Memorandum, dated 10 October 2D16, Respondents outlined the authority and functions of the Legal Service as follows: 1. D.O. No. 2009-7 provides, "xxx Legal Service shall also review contracts and render legal advice on various issues raised by DBM units. xxx"; 49 2. D.O. No. 2015-7 provides, "xxx Provide advice on the legal implications of policies and opinions on laws relative to budgeting, compensation and management matters. xxx"; 50 and

3. The Legal Service which shall provide legal advice and service to the Department Officers and employees, review legislative proposals and provide clarificatory opinions on budget laws. xxx; 51

Based on the foregoing, it is evident that interpretation of laws involving substantive rights is not within its authority or functions.

A scrutiny of DBM LS Opinion No. 14 shows that the Respondents, confronted with several requests from the PAO for the payment of retirement benefits under the PAO Law, in relation to the NAPROSS Law, proceeded to make an interpretation of the said laws and, on the basis thereof, denied the PAO' s request. Thus, its Legal Service, made the following declaration: LS Opinion No. 14, s. 2015 06 November 2015 SUBJECT:

Query on Entitlement of Retirement Benefits under Republic Act (RA) No. 10071

ISSUE:

Whether or not retired Public Attorney's Office (PAO) lawyers are entitled to the retirement benfits granted under R.A. No. 10071

49

Id., Volume 6, Memorandum Ad Caute/am by Respondents, dated 10 October 2016, par. 30, p.

242 (p. 10).

50 Supra, note 9.

51 Section 8(1) Chapter 3 title XVII of Executive Order No. 292.

DECISION Civil Case No. R-QZN-16-05464-CV Page20of42

DISCUSSION: The present legal issue stemmed from the claim of PAO Chief Persida V. Rueda-Acosta for payment of retirement benefits under RA No. 10071 for the thirty nine (39) PAO lawyers who retired within the period of May 2010 - December 2014.

Based from the records, all thirty nine (39) PAO lawyers have retired under R.A. 8291 or the Government Services Insurance System (GSIS) Act, having complied with Sections 13 and 13-A, summarized below: No. of PAO lawyers

Age

16 18

65 6064 Less than 60 65

4 1

Years of Government Service at the time of retirement At least fifteen years At least fifteen years At least fifteen years Less than fifteen years

On April 8, 2010 RA No. 10071 lapsed into law, and Section 16 of which provides that the Prosecutors of the National Prosecution Service (NPS) shall enjoy the same rank, salaries, allowances and retirement benefits of justices and judges, as the case maybe. An earlier law, under Section 5 of RA No. 9406 grants to the PAO lawyers the same retirement benefits as those of equivalent rank of Prosecutors of the NPS. Thus, the instant request to avail of the benefits given to Prosecutors under RA No. 10071 to the PAO retirees.

We note, however, that Section 16 last paragraph of RA No. 10071 limits the superior retirement benefits granted thereunder to the Prosecutors of NPS, to wit: Section 16. xxx The salaries, allowances and other emoluments herein fixed shall not apply to officers other than those of prosecutors in the National Prosecution Service, notwithstanding any provision of law assimilating the salruies of other officers to those herein mentioned.

Evident from the foregoing is the prohibition to apply the benefits given to the Prosecutors of NPS with any other officers. The intent is so clear that the law even provided "notwithstanding any provision of law assimilating the salaries of other officers to those herein mentioned". This could only mean that even if PAO lawyers under Section 5 of RA 9406 ru¡e given the same benefits as that of the Prosecutors of the NPS said provision could not overturn the express prohibition under Section 16 last paragraph of RA No. 10071. PAO retirees ru¡e therefore entitled only to the retirements

DECISION Civil Case No. R-QZN-16-05464-CV Page21 of42

benefits given to the prosecutors before the passage of RA No. 10071.

In fine, applying a basic rule in statutory construction - that when a statue or provision contains words of positive prohibition, such as "shall not", that statue or provision is rendered mandatory, it is the intent of the lawmakers thereof to limit the applicability of the benefits under RA No. 10071 only to Prosecutors of the NPS.

ROWENA CANDICE M. RUIZ Director (Emphasis supplied)

The question of whether the petitioners PAO retirees are entitled to retirement benefits would require a review of GSIS Joint Circular No. 20131 and Budget Circular No. 2013-1, in relation to the PAO Law and the NAPROSS Law, and vice versa. Indeed, as earlier stated, this issue is best ventilated in the administrative agencies concerned, i.e., the DBM, the GSIS and the DOJ. However, their authority and functions end there. Theirs is only to determine the law and adjudicate the rights of the parties in accordance with that law. It is not within the office, authority and function of these administrative agencies, particularly of Respondent DBM, to interpret the law and give meaning to the law.

To reiterate, there is no ambiguity in the words of GSIS Joint Circular No. 2013-1 and Budget Circular No. 2013-1 , in relation to the PAO Law and the NAPROSS Law, and vice versa. There is likewise no judicially declared ambiguity in the NAPROSS Law in relation to the PAO Law. Should Respondents have any doubt to its application, the proper remedy should have been to seek judicial clarification on the matter.

In the absence of a court declaration that the NAPROSS Law repealed the PAO Law, such that Section 5 of the PAO Law should be declared of no force and effect in relation to Section 16 of the NAPROSS Law, these two (2) laws stand and should be made to harmonize. So does all other laws or circulars emanating therefrom, i.e., GSIS Joint Circular No. 2013-2 and Budget Circular No. 2013-1.

Accordingly, Respondents should have limited their actions and performance of function to a mere review or advisory on Petitioners' claim for their retirement benefits vis-a-vis these laws and circulars, particularly its implications to budgeting, compensation and management matters. They should not have ventured into an area they were forbidden to foray.

The Respondents, therefore, exceeded the bounds of their jurisdiction and the ambit of their functions, when, through the Legal Service, they

DECISION Civil Case No. R-QZN-16-05464-CV Page22of42

issued and approved DBM LS Opinion No. 14, which rendered the interpretation that the retirement benefits under Section 16 of the NAPROSS Law applies only to prosecutors and does not extend to public attorneys.

*** Respondents downplay the issuance of DBM LS Opinion No. 14 arguing that it is merely an internal document issued by the Legal Services to guide the DBM bureaus in making their final recommendation on requests for release of funds. 52 According to them, it is never considered the final action of the Department as the same is subject to consideration of higher officials. It did not effect to withhold the release of funds to Petitioners.

Further, Respondents contend that there is no withholding of Petitioners' retirement benefits because the request is still being evaluated and the action of Respondent Abad in referring the matter to the DOJ is precisely to determine the propriety of the request to ensure correct action on the part of the DBM. Respondents actuations, however, point to the contrary.

The DBM LS Opinion No. 14 was treated as the law on the matter, triggering an avalanche of policy actions from the DBM. As a result of the issuance of DBM LS Opinion No. 14, Respondent DBM during the budget deliberations unilaterally increased the GSIS RLIP government share contribution for PAO employees from 3% to 12% as reflected in the 2017 Forward Estimates. The Forward Estimates reflect what the budget for the next fiscal year would be. Such actuation points to a recognition of the interpretation and declaration made in DBM LS Opinion No. 14 that the NAPROSS Law limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein" and, therefore, members of the PAO should not be deemed as special members enjoying the same rank, benefit and retirement privileges as prosecutors.

With such recognition, the claim of herein Petitioners PAO retirees will have no leg to stand on and has effectively been denied.

While DBM LS Opinion No. 14 therefore was not the final and official action of the DBM, Respondents afforded it of such significance as to spark policy action or stall action. Particularly, it led to the increase of the GSIS RLIP government share contribution for PAO employees from 3% to

52

Department Order No. 2009-7, DO No. 2015-7 and Section 8 (1), Chapter 3, Title XVII, of ED. No .

292.

DECISION Civil Case No. R-QZN-16-05464-CV Page23of42

12o/o as reflected in the 2017 Forward Estimates and forestalled the release of the retirement benefits being claimed by herein Petitioners.

Attention is invited on the Letter, dated 11 March 2016, prepared by Respondent DBM Secretary Florencio B. Abad addressed to DOJ Secretary Emmanuel L. Caparas, which shows that Respondent DBM declared DBM LS Opinion No. 14 as its official position on the requests of the PAO for the release of retirement benefits of its retirees. To wit: HON. EMMANUEL L. CAPARAS Secretary Department of Justice (DOJ) Padre Faura, Manila Dear Secretary Caparas: This refers to various requests of Public Attorney' s Office (PAO) for th paument of retirement benefits under Republic Act (RA.) No. 10071 in relation to Ra. No. 9406.

1.

Letters dated May 15 and 27, 2015 and June 25, 2015 requesting for the release of funds in the total amount of P139,996,039.05 to cover payment of retirement gratuity differential of thirty-nine (39) former Public Attorneys, who retired from May 29, 2010 to December 31, 2014; and

2.

Letter dated January 11, 2016 requesting reconsideration that Public Attorneys and Prosecutors shall have the same retirement privileges as their counterparts in the justice system.

Section 5 of RA. No. 9406 grants to the PAO lawyers the same retirement benefits as those of equivalent rank of Prosecutors of the National Prosecution Service (NPS). On the other hand, Section 16 of RA. o. 10071 provides that, the Prosecutors of the NPS shall enjoy the same rank, salaries, allowances and retirement benefits of justices and judges, as the case may be.

It is noted, however, that Section 16 last paragraph of RA. No. 10071 limits the superior retirement benefits granted thereunder to the Prosecutors of NPS, to wit: Section 16. xxx The salaries, allowances and other emoluments herein fixed shall not apply to officers other than those of prosecutors in the National Prosecution Service, notwithstanding any provision of law assimilating the salaries of other officers to those herein mentioned.

DECISION Civil Case No. R-QZN-16-05464-CV Page24of42

The PAO lawyers are entitled only to the retirement benefits given to the prosecutors before the passage of RA. No. 10071 because evident from Section 16 of RA. No. 10071 is the prohibition to apply the benefits given to the Prosecutors of NPS with any other officers.

It is our humble opinion that the intention of the law in integrating the phrase 'notwithstanding any provision of law assimilating the salaries of other officers to those herein mentioned" is meant to limit the aforementioned benefits to Prosecutors in the National Prosecution Service. This could only mean that even if PAO lawyers under Section 5 of RA. No. 9406 are given the same benefits as that of the Prosecutors of the NPS said provisions could not overturn the express provision under Section 16 last paragraph of RA. No. 10071.

Applying the basic rule in statutory construction - that when a statute or provision contains words of positive prohibition, such as "shall not", that statute or provision is rendered mandatory, it is the intent of the lawmakers thereof to limit the applicability of the benefits under RA. No . 10071 only to Prosecutors of NPS . Thus, what should be given to the PAO lawyers are the benefits under the Government Service Insurance System similar to those received by the Prosecutors ofNPS before the effectivity of RA. No. 10071.

However, the PAO insists that the public attorneys are not covered by the limitations or prohibition under Section 16 of RA. 10071 and thereby entitles them to the same retirement benefits as justices and judges.

Given the Department of Budget and Management position on the matter, may we request the Secretaty of Justice to render an opinion pursuant to its powers under Section 67, Chapter 14, Book IV of Executive Order No. 292.

Very truly yours, (signed) FLORENCIO B. ABAD Secretary (Emphasis supplied)

While Respondent Secretary Abad is well within his authority to refer the matter to his counterpart in the Department of Justice for opinion as mandated under Section 5, Chapter 14, Book IV of Executive Order No. 292, he did not wait for the result of such collaboration; but, proceeded to

DECISION Civil Case No. R-QZN-16-05464-CV Page25of42

propose an increase in the 2017 Forward Estimates during the budget deliberations thereby manifesting a decision to stand by DBM LS Opinion No. 14.

Respondents ' DBM LS Opinion No. 14 was afforded more significance than a mere internal document or opinion. If in truth DBM LS Opinion No. 14 was merely an opinion limited in scope, breadth and ramification within its bureaus, the same should have been treated as such.

Again, this Court would like to emphasized, that while DBM LS Opinion No. 14 may have opined that the retirement benefits under Section 16 of R.A. No. 10071, otherwise known as the NAPROSS Law, limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein", the same remains to be an opinion which did not, and should not have, invalidate( d) the actions of respondent DBM Secretary Abad and GSIS President and General Manager Robert G. Vergara who both earlier found and recognized the members of the PAO to be covered by special retirement laws as embodied in their circulars.

More significantly, while it may have opined that the retirement benefits under Section 16 of the NAPROSS Law limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein", such pronouncement and interpretation did not effectively declare that the NAPROSS Law repealed the PAO Law such that Section 5 of the PAO Law should be deemed of no force and effect.

Respondents should therefore have treated DBM LS Opinion No. 14 as the mere opinion it so claims, with persuasive value but not conclusive upon any of the Department Secretaries or Heads of Agency concerned.

Therefore, in the absence of a judicial declaration, through a Petition for Declaratory Relief, declaring that the NAPROSS Law repealed the PAO Law, both laws remain to be valid and all other laws or circulars emanating therefrom, particularly GSIS Joint Circular No. 2013-1 and Budget Circular No. 2013-1 , stand. The Public Attorney' s Office remains to be covered by special retirement laws with its employees considered and recognized as special members.

Respondents should have made this their guiding principle in determining the retirement claims of herein Petitioners PAO retirees instead of relying on the assailed Opinion.

DECISION Civil Case No. R-QZN-16-05464-CV Page26of42

On this score, the treatise in Republic of tile Philippines vs. Lacap53 may prove valuable.

The plain meaning rule or verba legis in statutory construction is that if the statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation. This rule derived from the maxim Index animi sermo est (speech is the index of intention) rests on the valid presumption that the words employed by the legislature in a statute correctly express its intention or will and preclude the court from construing it differently. The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure.

The wordings of Section 16 of the NAPROSS Law in relation to Section 5 of the PAO Law are clear. It does not declare, expressly or impliedly, as void or repealed the PAO Law. None should therefore be read into it.

*** In Dr. Brito v. Office of tile Deputy Ombudsman for Luzon, the Court had occasion to declare that "a tribunal, board or officer acts without jurisdiction if it/he does not have the legal power to determine the case.

There is excess of jurisdiction where, being clothed with the power to determine the case, the tribunal, board or officer oversteps its/his authority as determined by law. And there is grave abuse of discretion where the tribunal, board or officer acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. 54 Respondents overstepped and exceeded the bounds of their authority and functions when they interpreted the NAPROSS LAW in relation to the PAO Law and rendered DBM LS Opinion No. 14, declaring that the retirement benefits under Section 16 of the NAPROSS Law, limits its application only to prosecutors and does not extend to public attorneys; and, on the basis thereof, increasing the GSIS Retirement and Life Insurance Premium (RLIP) allocation for the PAO in the 2017 Forward Estimates and withholding the release of the Petitioners' retirement benefits, despite there being no judicial declaration to that effect.

53

G.R. No. 158253, dated 2 March 2007.

Dr. Brito v. Office of the Deputy Ombudsman for Luzon, G.R. Nos. 167335 & 167337 and G.R. No. 173152, 10 July 2007, 554 Phil. 112, 125.

54

DECISION Civil Case No. R-QZN-16-05464-CV Page27of42

Th ere is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

Respondents argue that the filing of the instant petition was premature as there is yet no official action on the PAO' s request. They contend that the courts of justice will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to dispose of the case.

The Court does not agree.

The earlier cited case of Republic of the Philippines vs. Lacap 55 is instructive on this point.

The general rule is that before a party may seek the intervention of the comt, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opp01tunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction, which are based on sound public policy and practical considerations, are not inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will iITetrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and 55

G.R. No . 158253, dated 2 March 2007.

DECISION Civil Case No. R-QZN-16-05464-CV Page28of42

irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (1) in quo warranto proceedings. (emphasis supplied)

Exceptions (a), (f) and (j) apply to the instant case.

The announcement by Director Ma. Soledad G. Doloiras, former Director of the DBM Bureau assigned to DOJ Budget and currently BMB for Security, Peace and Justice Sector, that the DBM shall push through with its proposed increase in the RLIP allocation for the 2017 Forward Estimates for the Department of Justice signified that Respondents had reverted the members of the PAO as GSIS regular members and no longer as special members on the basis of DBM LS Opinion No. 14, despite the absence of a final determination from the Secretaries of the Department or the Heads of Agency concerned on this matter. As a necessary consequence thereof, the incumbent qualified public attorneys would have to return the 6% GSIS RLIP personal share contribution differentials earlier returned to them, with penalties and surcharges. Similarly, PAO retirees who had earlier received their retirement benefits as GSIS special members, of the GSIS counterpart thereof, will also have to return a significant portion of their retirement benefits. This effectively was a denial of herein Petitioners PAO retirees' claim of their retirement benefits which required immediate judicial intervention.

Petitioners had no other plain, speedy and adequate remedy available to forestall and assail the policies implemented by the Respondents on the basis of its reliance on DBM LS Opinion No. 14 as the Respondents had already shown more than a mere inclination to stand by its interpretation despite the absence of a conclusive determination from the Secretaries of the Department and Heads of Agencies concerned.

Respondents cannot seek refuge on the Doctrine of Exhaustion of Administrative Remedies as they, by their overt acts, have shown to disregard it. Indeed, Respondent Secretary Abad referred the matter to his counterpart in the Department of Justice, for an opinion. Respondent, however, did not wait for the result of such collaboration; but, proceeded to propose an increase in the 2017 Forward Estimates during the budget deliberations as to effectively deny the Petitioners' claim for their retirement benefits. Adherence to the Doctrine of Exhaustion of Administrative Remedies must be consistent and attendant at the inception of the proceedings for the Respondents to claim benefit therefrom. It is not a principle to be summoned and applied at the Respondents' convenience.

Furthermore, having actively participated in the proceedings of this court and requested reliefs therefrom, Respondents have effectively placed

DECISION Civil Case No. R-QZN-16-05464-CV Page29of42

themselves within the jurisdiction of the court and are therefore estopped from invoking the above-mentioned Doctrine.

Thus, Petitioners' resort to the extraordinary remedy of Certiorari is proper.

PETITION FOR MANDAMUS In their Memorandum, dated 10 October 2016, Respondents aver that it may not be compelled by mandamus to release public funds for the following reasons : one, its function of releasing public funds is not a ministerial act; and, two, Petitioners have no clear right over the retirement benefits given to the members of the National Prosecution Service.

The Court hereby, inter alia, resolves:

One. A ministerial act is one which an officer or tribunal perfonns in a given state of facts , in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done .56 The use of discretion and the performance of a ministerial act are mutually exclusive.57 The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts , in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or . d gment. 58 JU Guided by the above definition of a ministerial function in the determination of whether or not the Respondents, in releasing public funds , specifically the release of funds for the retirement benefits of retiring government employees, is performing a ministerial act, the pertinent provisions of Republic Act No . 10154, An Act Requiring All Concerned Government Agencies to Ensure the Early Release of the Retirement Pay,

56

Spouses Edralin vs. Philippine Veterans Bank, G.R. No. 168523, 9 March 2011 .

Espiridion vs. Court of Appeals, G. R. No. 146933, 8 June 2006.

58 Codilla, Sr. vs. de Venecia, 442 Phil. 139 {2002), cited in Espiridion vs. Court of Appeals, G. R. No. 146933, 8 June 2006.

57

DECISION Civil Case No. R-QZN-16-05464-CV Page30of42

Pensions, Gratuities and Other Benefits of Retiring Government Employees, and its Implementing Rules and Regulations must be considered.

Section 1 of Republic Act No. 10154, provides: Section I. Declaration of State Policy. It is hereby declared that it is the policy of the State to ensure the timely and expeditious release of the retirement pay, pensions, gratuities and other benefits ~f all retiring employees of the government. Public officers and employees who have spent the best years of their lives serving the government and the public should not be made to wait to receive benefits which are due to them under the law. Accordingly, it is hereby mandated that highest priority shall be given to the payment and/or settlement of the pensions, gratuities and/or other retirement benefits of retiring government employees.

In the Implementing Rules and Regulations of Republic Act No. 10154 issued by the Civil Service Commission, dated 3 January 2013, it further provides: RULE III PERIODS FOR RELEASE Section 5. Periods for Release of Retirement Benefits. Retirement benefits of retiring government employees shall be released to them within a period of thirty (30) days from the actual retirement date of the concerned employee. The employer-agency must, however, submit all requirements for purposes of retirement to the concerned agency at least ninety (90) days prior to the e.ffectivity date of the retiree's retirement. To complete all said requirements in due time, the employee concerned shall file his/her expression of intent to retire at least one hundred twenty (J 20) days prior to his/her actual retirement date, as outlined further under Section 10 hereof xxx RULEV RESPONSIBILITIES OF THE DEFARTMENT OF BUDGET AND MANAGEMENT Section 10. Responsibilities of the Department of Budget and Management. For terminal leave benefits and retirement gratuity under Republic Act No. 910, Republic Act No. 1568, Republic Act No. 1616, as amended, and other relevant laws, DBM shall perform the following: a. Include in the proposed national budget the funding requirements for retiring employees based on the list of retirees submitted by employeragencies; b. Within a period of thirty (30) days from the e.ffectivity of these implementing rules, issue a standard list of documents required to be submitted by the retiring employee and the employer-agency to the DBMfor the appropriate retirement benefits;

DECISION Civil Case No. R-QZN-16-05464-CV Page31 of42

c.

Within one (J) day from receipt of documents, ascertain whether all documents in the prescribed standard list have been submitted, and if incomplete, immediately call the attention of the employer-agency;

d. Should inconsistency in the data or some lacking documents are found, notify within three (3) working days therefrom the employer-agency in writing of such inconsistency or lacking documents; and e.

Within ten (10) days from submission of all documentmy requirements, verify the computation, ascertain whether the grant and amount of retirement benefits are in accordance with law, and release the required funds to the employer-agency; Provided, that an additional ten (J 0) days shall be required ?f initial findings indicate that a more comprehensive legal due diligence is needed. xxx

A thorough examination of the foregoing provisions would show that the Respondents are not given the right to decide how or when the duty shall be performed but instead, they are mandated by law to release the retirement benefits of retiring government employees within the prescribed period upon submission of all documentary requirements by the employer-agency, verification of the computation, and ascertainment of whether the grant and amount of retirement benefits are in accordance with law. Such mandate falls squarely within the meaning of a ministerial function.

To strengthen the duty imposed upon the Respondents, the law even provided for penal sanctions in case the duty-bound officials and/or employees, without justifiable reason, fail or refuse to perform their functions under said law, viz: R ULE VI PENAL PROVISIONS Section 11. Administrative Offenses and Penalties. Officials and/or employees who, without just?fiable reason, fail or refuse to: a. receive a complete application for retirement; b. act on and/or process a complete retirement application within the periods provided/or by RA No. 10 154 and these Rules; or c. release the pension, gratuities and other benefits due to a retiring employee within the said p eriods, shall be liable, after hearing and due proceedings, for violation of Republic Act No. 10154 and these Rules and shall be penalized with suspension from the senJice without pay from six (6) months to one (J) year; and dismissal from the service for the second offense, subject to the provisions of existing Civil Service laws and rules and regulations.

Administrative liability shall not be attributed to officials and employees who fail to act on an application for retirement or release retirement

DECISION Civil Case No. R-QZN-16-05464-CV Page32of42

benefits within the prescribed periods by reason of force majeure and other insuperable causes.

In the determination of liability under this Section, the official and/or employee who fail to comply with his/her responsibility within the appropriate periods prescribed under Rules Ill, IV and V hereof shall be held liable for violation of Republic Act No. 10154 and these Rules. xxx

The function of the Respondents in releasing the retirement benefits of the Petitioners being a ministerial function, the equitable remedy of Mandamus, therefore, lies.

Petitioners' claim that they have acquired a vested right over their retirement benefits anchored upon the provisions of PAO Law in relation to the NAPROSS Law and having already received benefits on the basis thereof.

On the other hand, Respondents aver that petitioners have no clear and vested right over the retirement benefits since there is a conflict between the two (2) laws upon which the claim of the petitioners is based. According to them, the NAPROSS Law essentially repealed the earlier PAO Law. Respondents maintain their reliance on DBM LS Opinion No. 14 which declared that the retirement benefits under Section 16 of the NAPROSS Law limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein" and, therefore, does not include the officers of the PAO despite a contrary declaration in Section 5 of the PAO Law. Ergo, Respondents claim that there is no basis for the claim for retirement benefits of herein Petitioners PAO retirees.

This Court does not agree.

First, absent a judicial declaration of invalidity or an express provision declaring that one repeals the other, the NAPROSS Law and the PAO Law are both valid and existing. It is the duty of the Respondents therefore to harmonize these laws and breathe life into it reflecting the intention of its framers. It is not the duty of the Respondents to declare a conflict when none has been pronounced to this effect. To reiterate, it is not within the office, authority or function of the Respondents to interpret the law.

Second, Petitioners have already acquired a vested right over their retirement benefits under the PAO Law in relation to the NAPROSS Law given the earlier recognition afforded by the Respondents to these laws and

DECISION Civil Case No. R-QZN-16-05464-CV Page33of42

having extended benefits in favor of the Petitioners on the basis of these laws. 59 Thus, upon enactment of these laws and recognizing that the members of the Public Attorney's Office shall enjoy the same retirement and other benefits to those of equivalent rank in the National Prosecution Service, Respondent DBM Secretary Abad, in a Letter, dated 15 June 2012, declared that the RLIP contribution for the PAO shall be decreased from 9 % to 3%. 60 Accordingly, the GSIS Retirement Life Insurance Premium (RLIP) government share contribution was decreased from 12% to 3%, while the GSIS RLIP personal share contribution of the PAO was decreased from 9% to 3%, effective May 2010 or the date of effectivity of the NAPROSS Law. As a result thereof, the incumbent qualified public attorneys received their respective 6% GSIS RLIP personal share contribution differentials from the GSIS retroactive from May 2010. The GSIS also paid the Petitioners PAO retirees their retirement benefits as GSIS special members, of the GSIS counterpart thereof.

This 3 % GSIS RLIP government share allocation persisted until 2016 and was never disallowed by the Commission on Audit assigned to the GSIS, PAO and the DBM. In fact, for some of herein Petitioners, they are merely claiming for the deficiency or differential m their retirement benefits as special members.

Again, as a consequence of the enactment of these two (2) laws, on 8 March 2013, Respondent DBM Secretary Florencio B. Abad and Government Service Insurance System (GSIS) President and General Manager Robert G. Vergara, signed DBM and GSIS Joint Circular No. 2013-1 providing for the Guidelines and Procedures in the Payment of Retirement Benefits Pursuant to Special Retirement Laws. 61 Respondent Secretary Abad of the DBM also signed Budget Circular No. 2013-1 , dated 12 April 2013, which declared that the Public Attorney's Office (PAO) shall be covered by special retirement laws. 62 Third, having already enjoyed benefits therefrom, Petitioners have acquired a vested right over their retirement benefits that is protected by the due process clause and cannot be jeopardized by a new interpretation of the law.

The case of GSIS vs. Fernando De Leon,63 is instructive on this point. Therein, respondent Fernando P. de Leon retired as Chief State 59

Caro Lino v. Gen Senga et al., G.R. NO. 189649, dated 20 April 2015. xx x 2. The provision for Retirement and Life Insurance Premium (RLIP} has been decreased by P94,996 Million due to RLIP adjustment of 1,500 Public Attorney positions. R.A. No. 9406 declared that Public Attorney positions are equivalent in rank with th e National Prosecution Service R.A. NO. 10071 (The National Prosecution Act) provides, among others, that Prosecutors shall enjoy the same retirement and other benefits as those of equivalent ranks in the judiciary. Thus, the Public Attorney positions now are only entitled to 3% life insurance premiums.

61 Supra, note 1.

62 Supra, note 2.

63 G.R. No. 186560, dated 17 November 2010.

60

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Prosecutor of the Depaiiment of Justice (DOJ) in 1992, after 44 years of service to the government. He applied for retirement under Republic Act (R.A.) No. 910, invoking R.A. No . 3783 , as amended by R.A. No. 4140, which provides that chief state prosecutors hold the same rank as judges.

The application was approved by GSIS. Thereafter, and for more than nine years, respondent continuously received his retirement benefits, until 200 l , whee his monthly pension was stopped upon a subsequent finding from the GSIS that the said law does not apply to him. In upholding the retirement benefit of respondent De Leon under R.A. 910, the Court made the following declaration: Thus, where the employee retires and meets the eligibility requirements, he acquires a vested right to benefits that is protected by the due process clause. Retirees enjoy a protected property interest whenever they acquire a right to immediate payment under pre-existing law. Thus, a pensioner acquires a vested right to benefits that have become due as provided under the terms of the public employee pension statute. No law can dep1ive such person of his pension rights without due process of law, that is without notice and opportunity to be heard. xxx One could hardly fault respondent, though a seasoned lawyer, for relying on petitioner's interpretation of the pertinent retirement laws, considering that the latter is tasked to administer the government's retirement system. He had the right to assume that GSIS personnel knew what they were doing.

Since the change in circumstance was through no fault of respondent, he cannot be prejudiced by the same. His right to receive monthly pension from the government cannot be jeopardized by a new interpretation of the law.

(Emphasis supplied)

Similarly, in the case of Petitioners PAO Retirees, any new or subsequent interpretation of Sec. 16 of the NAPROSS Law in relation to Sec. 5 of the PAO Law should not serve to invalidate or jeopardize previous benefits already received. As they had already been deemed covered by special retirement laws at the time of their retirement and have received benefits by virtue of such recognition, Petitioners have already acquired a vested right over their retirement benefits which cannot be unilaterally withheld by the Respondents on the basis of a mere legal opinion.

DECISION Civil Case No. R-QZN-16-05464-CV Page35of42

And Three.

Respondents' explain that the lack of action on the Petitioner PAO retirees claim for retirement benefits was a precautionary measure since, "in case payment was made and it was later found that the NAPROSS Law repealed the PAO Law and Petitioners are not entitled to the same, Petitioners will be made to refund the same pursuant to Section 63 of the General Provisions (GPs) in R.A. No. 10707 of the FY 2016 General Appropriations Act (GAA), and Respondents will be exposed to administrative and criminal liability". 64 Such fear is misplaced and unfounded.

It is erroneous on the part of the Respondents to foretell doom and, on the basis thereof, withhold the retirement benefits of herein Petitioner PAO retirees. It is even more grievous to commit Petitioners' claim to near oblivion considering that there was no judicial action that has been filed seeking for a conclusive determination on the application of the NAPROSS Law in relation to the PAO Law. Absent such overt act, Respondents fear of refund and criminal reprisal will simply never come to pass.

Be that as it may, Respondents should be guided by Article 7 of the Civil Code which enunciates the general rule in case of conflict between a prior law and a subsequent law, and its exception: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.

The Doctrine of Operative Fact is an exception to the general rule, such that a judicial declaration of invalidity may not necessarily obliterate all the effects and consequences of a void act prior to such declaration. 65 For the Operative Fact Doctrine to apply, there must be a "legislative or executive measure," meaning a law or executive issuance, that is invalidated by the court. From the passage of such law or promulgation of such executive issuance until its invalidation by the court, the effects of the law or executive issuance, when relied upon by the public in good faith, may have to be recognized as valid. 66

64

Id., Volume 6, Memorandum Ad Caute/am by Respondents, dated 10 October 2016, par. 47, p.

246 (p.14) .

65 Commissioner of Internal Revenue vs. San Roque Power Corporation, G.R. No. 187485, 8 October 2013.

66 Supra, note 17.

DECISION Civil Case No. R-QZN-16-05464-CV Page36of42

The question of whether a particular law has been repealed or not by a subsequent law is a matter of legislative intent. The lawmakers may expressly repeal a law by incorporating therein a repealing provision which expressly and specifically cites the particular law or laws, and portions thereof, that are intended to be repealed. A declaration in a statute, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed, is an express repeal; all others are implied repeals.67 It is a well-settled rule of statutory construction that repeals of statutes by implication are not favored.68 The presumption is against inconsistency and repugnancy for the legislature is presumed to know the existing laws on the subject and not to have enacted inconsistent or conflicting statutes. 69

In this case, Petitioners have established their right based on the PAO Law in relation to the NAPROSS Law, which, absent any provision expressly repealing one by the other and/or a court's judicial declaration of invalidity, are both valid and existing.

It is clear from the provisions of the PAO Law that the PAO retirees are entitled to the same retirement privileges as those of their counterparts in the National Prosecution Service and that reference shall be made on the retirement benefits of the prosecutors in the National Prosecution Service presently governed by the NAPROSS Law.

A reverse application of the Doctrine of Operative Fact would indicate that absent any act of the court invalidating these laws upon which the Petitioners based their claim in good faith, its effects and consequences shall be recognized by law as valid. Corollary to this, Respondents may validly rely on said laws in the release of the funds without fear that such laws will later be declared invalid or that it will be exposed to administrative and criminal liability since a subsequent judicial declaration of invalidity of said laws may not necessarily obliterate all the effects and consequences of a void act prior to such declaration.

At this juncture, the Court brings to the fore the Official Statement issued by Respondent DBM, through new DBM Secretary Benjamin E. Diokno, that declared that the GSIS RLIP government share allocation for the PAO shall not be increased to twelve percent (12%) but would remain at

67

M ecano vs. Commission on Audit, G.R. No. 103982. 11 December 1992.

National Power Corporation vs. Hon. Zain B. Angas, G. R. Nos. 60225-26, May 8, 1992; Maceda vs. Macaraig, 197 SCRA 771 (1991); Maddumba vs. Government Service Insurance System, 192 SCRA 281 (1990); Largo vs. Ranada, Jr., 164 SCRA 18 (1988}; De Jesus vs. People, 120 SCRA 760 (1983} 69 U.S. vs. Palacio, 33 Phil. 208 (1916).

68

DECISION Civil Case No. R-QZN-16-05464-CV Page37of42

three percent (3%)7°, and the manifestation by new Department of Justice Secretary Vitaliano A. Aguirre that he favored the release of the retirement benefits of the Petitioner PAO retirees equal to those of their counterparts in the National Prosecution Service.71 That being said and applying the Doctrine of Operative Fact, there is nothing that should further forestall the immediate release of the retirement benefits of herein Petitioners.

APPLICATION FOR INJUNCTION Petitioners pray that a Writ of Injunction be issued to enJom Respondent DBM and DBM Secretary Abad to maintain the status quo, i.e. , the government share in the Government Service Insurance System (GSIS) Retirement and Life Insurance Premium (RLIP) for incumbent public attorneys shall remain at three percent (3 %) instead of being increased to twelve percent (12%).

It will be recalled that by Order, dated 15 June 2016, Petitioners' application for issuance of a Temporary Restraining Order was denied. 72 Petitioners filed a Motion for Reconsideration thereto and the hearing on the application for a Preliminary Injunction ensued. Belatedly, the issue on the matter of the issuance of a Temporary Restraining Order was rendered moot and academic by the issuance by the Department of Justice of an Urgent Memorandum, dated 7 July 2016, addressed to Chief Public Attorney Persida V. Rueda-Acosta, informing her that the GSIS RLIP government share allocation for the PAO was not increased to twelve percent (12o/o) but remained to be at three percent (3%). The development was also reflected in the letter signed by the new DBM Secretary, Benjamin E. Diokno, addressed to the new DOJ Secretary, Vitaliano Aguirre II. Accordingly, upon Petitioners' Manifestation and Motion, their Motion for Reconsideration was deemed withdrawn.

Petitioners, manifested that, despite such development, they would not abandon their prayer for issuance of a Writ of Injunction.

It should be noted, however, that no principal action for Injunction was filed by the Petitioners. Instead, Petitioners filed an application for a Writ of Temporary Restraining Order and or Preliminary Injunction as a provisional or ancillary remedy to their main action of Certiorari and Mandamus the purpose of which is to preserve the last, actual, peaceable, uncontested status which preceded the pending controversy until the merits 70

Id., Volume 5,Manifestation by Petitioners, filed on 22 September 2016, pp.28-30, 31; Ibid., Volume 5,Counter-Manifestation by Petitioners, filed on 23 September 2016, pp.63-75; Ibid., Volume 6, Counter-Manifestation by Petitioners, filed on 18 October 2016, pp. 263-268, 269.

71 Ibid., Volume 5, pp. 21-23.

72 See note 4.

DECISION Civil Case No. R-QZN-16-05464-CV Page38of42

can be heard, i.e., for the GSIS RLIP government share allocation for the PAO be not increased to twelve percent (12%) but retained at three percent (3%).

With the issuance by the Department of Justice of an Urgent Memorandum, dated 7 July 2016, addressed to Chief Public Attorney Persida V. Rueda-Acosta, informing her that the GSIS RLIP government share allocation for the PAO was not increased to twelve percent ( 12o/o) but remained to be at three percent (3%), there is nothing more to be enjoined.

The injury sought to be prevented has not come to pass with the Respondents reverting back to the status quo. Accordingly, as with the application for Temporary Restraining Order, Petitioners' application for Preliminary Injunction had been mooted by the issuance by the Department of Justice of its Urgent Memorandum, dated 7 July 2016, retaining the GSIS RLIP government share allocation for the PAO at three percent (3%).

CLAIM OF DAMAGES For undue denial of their retirement benefits, Petitioners PAO retirees claim for actual and compensatory, moral and exemplary damages.

Respondents oppose the same on the ground that they have acted in good faith and in the regular performance of their official functions .

Petitioners contend that the Respondents DBM, Secretary Abad and Atty. Ruiz should be made liable to pay for actual and compensatory damages in the form of interests on the amount of the retirement benefits due to them and being withheld, as well as costs of suit. According to them, the acts and omissions of said Respondents led to the deprivation of their sustenance, medical needs, not to mention a comfortable living, in violation of Article 19 as well as Article 32 (6) of the Civil Code.

As found, the Respondents overstepped and exceeded the bounds of their authority and functions when they interpreted the NAPROSS LAW in relation to the PAO Law and rendered DBM LS Opinion No. 14, declaring that the retirement benefits under Section 16 of the NAPROSS Law, limits its application only to prosecutors given the phrase "notwithstanding any provision of law assimilating the salaries of other officers to those mentioned herein"; and, on the basis thereof, increasing the GSIS Retirement and Life Insurance Premium (RLIP) allocation for the PAO in the 2017 Forward Estimates and withholding the release of the Petitioners' retirement benefits, despite there being no judicial declaration to that effect.

The defense of regularity in the performance of functions, therefore, would not apply. Neither would the Doctrine of State Immunity absolve the Respondents from any liability since the same does not apply where the

DECISION Civil Case No. R-QZN-16-05464-CV Page39of42

public official is charged in his official capacity for acts that are unauthorized or unlawful and injuries to the rights of others.73 Clearly, therefore, damages have been sustained and the award thereof is warranted.

However, considering that actual or compensatory damages have not been properly pleaded and proven, 74 none can be decreed.

Article 2199 of the Civil Code of the Philippines provides : Article 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

Conformably with the foregoing provision, the rule is well settled that there must be pleading and proof of actual damages suffered for the same to be recovered. In addition to the fact that the amount of loss must be capable of proof, it must also be actually proven with a reasonable degree of certainty, premised upon competent proof or the best evidence obtainable.

The burden of proof of the damage suffered is, consequently, imposed on the party claiming the same who should adduce the best evidence available in support thereof, like sales and delivery receipts, cash and check vouchers and other pieces of documentary evidence of the same nature. In the absence of corroborative evidence, it has been held that self-serving statements of account are not sufficient basis for an award of actual damages. Corollary to the principle that a claim for actual damages cannot be predicated on flimsy, remote, speculative, and insubstantial proof, courts are, likewise, required to state the factual bases of the award. 75 As such, having failed to prove with reasonable degree the actual damage which Petitioners have suffered in the form of interests on the amount of the retirement benefits due to them, sustenance, medical needs, and comfortable living, the Court must deny the claim.

Similarly, for having failed to properly and sufficiently prove the claim for moral damages, the Court must deny the same.

Finally, since the recovery of exemplary damages is not a matter of right, its determination being dependent upon the amount of compensatory 73

DOH, Secretary Dayrit, USEC Galon and USEC Lopez versus Philippine Pharmawea/th, Inc., G.R. No . 169304, dated 13 March 2007.

74 Viron Transportation Company, Inc., v. De /os Santos, G.R. No. 138296, November 22, 2000, 345 SCRA 509, 519.

75 Oceaneering Contractors (Phi/s.), Inc. V. Nestor N. Barretto, doing business as N.N.B. Lighterage, G.R. No . 184215, 9 February 2011.

DECISION Civil Case No. R-QZN-16-05464-CV Page 40of42

damages that may be awarded to the Petitioners, the Court deems it proper to likewise deny Petitioners' claim.

CONCLUSION To conclude, much has been said about the dichotomy between being a public attorney and a public prosecutor failing to realize that they are both vital and significant actors in the administration of justice, without whose active participation, no final and conclusive redress of grievances can be made. In their long hours of toil, dedication and hard work to give true meaning to the term "public servants" lies their equality and congruence for which they should be amply rewarded and recognized. After honorably serving office for a great number of years, public servants, as herein Petitioners PAO retirees, should comfortably enjoy their retirement in the relative security of a regular monthly pension and should not be denied benefit and left without means of sustenance. A perceived ambiguity or uncertainty in the application of the law should not serve to deny them such recognition and reward. Public attorneys retirees deserve to be provided the wherewithal to live a life of relative comfort, dignity and security after years of honorable service in the government.

WHEREFORE, premises considered, the Court hereby finds: (a) Petitioners' Petition for Certiorari is hereby GRANTED. DBM LS Opinion No. 14, dated 6 November 2015, issued

by Respondent Rowena Candice M. Ruiz, Legal Service Head, Department of Budget and Management (DBM), and affirmed by Respondent Secretary Florencio B. Abad is hereby ANNULLED AND SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction; (b)Petitioners' Petition for Mandamus is GRANTED. Respondent DBM is hereby DIRECTED to cause the IMMEDIATE RELEASE of the retirement benefits of herein Petitioners PAO retirees in accordance with DBM and GSIS Joint Circular No. 2013-1 and Budget Circular No. 2013-1, in relation to the PAO Law and the NAPROSS Law¡ '

(c) Petitioners' Application for a Writ of Preliminary Injunction and Permanent Injunction is hereby DENIED for lack of merit; and,

DECISION Civil Case No. R-QZN-16-05464-CV Page41 of42

(d) Petitioners ' claim for actual and compensatory damages, exemplary damages and moral damages is hereby DENIED for lack of merit.

SO ORDERED. Quezon City, Philippines, 14 Febru

--:;.~'"""';;-.:.---­

A-PANG IL INAN

DECISION Civil Case No. R-QZN-16-05464-CV Page 42of42

Copy furnished: Public Attorney's Office DOJ Agencies Bldg. NIA Road car. East Ave., Diliman, Quezon City Atty. Persida Rueda-Acosta Atty. Silvestre Mosing Howard Areza MarlonBuan Revelyn Ramos-Dacpano Analiza Sopriano Carmela Ablaza John Philip Reyes Michelle Anne Yango Elpidio Bacuyag 170 Prudencio St., Sta. Mesa, Manila Arnulfo A. Singson J5 Barcelona cor. Saragosa Vista Verde Exec. Village, Cainta Reynaldo A. Casas 75 JB. Tan St., Vista Grande, Talon Dos, Las Pinas Amelia C. Garchitorena J 73 Kamias Rd. Ext. Project 2, Quezon City Cynthia M Vargas J8 Bignay St., Quirino 2-A, Quezon City Department of Budget and Management Hon. Florencio B. Abad Atty. Rowena Cadice M Ruiz