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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 236 -
SUSPENDING FOURTH ASSISTANT CITY PROSECUTOR ELMER MANUEL SAGSAGO OF
BAGUIO CITY FOR A PERIOD OF ONE (1) YEAR WITHOUT PAY
This refers to the administrative complaint
filed by the Department of Justice against Fourth Assistant City
Prosecutor Elmer Manuel Sagsago of Baguio City for "Disloyalty to the
Republic of the Philippines and to the Filipino People."
The case arose from the transmittal by the Fact-Finding Commission
created under Republic Act No. 6832 to investigate the failed December
1989 Coup, otherwise known as the "Davide Commission", of a copy of its
Resolution No. 114, "In RE: RECOMMENDING TO THE DEPARTMENT OF JUSTICE
THE PROSECUTION AND/OR INVESTIGATION OF CIVILIANS PROBABLY LIABLE FOR
OFFENSES IN CONNECTION WITH THE FAILED DECEMBER 1989 COUP D'ETAT"
(September 30, 1990) to my Office, which in turn referred it to the
Department of Justice. The Resolution contains, inter alia, the
following recital:
"22.
an Assistant Prosecutor of the
City of Baguio, President of the Baguio Chapter of GCFI, who, with
Ikeuchi and Sgts. Ocon and Mendez, left Baguio City in the morning of
30 November 1989 to attend an alleged meeting of the GCFI members at
the PPA Building, North Harbor, in the evening of the said date, at
which meeting the participants were provided with fire-arms; before the
meeting, he met 30 to 40 GCFI members from the PMA among them were
Sgts. Jaime Camacho and Alimbuyao."
On November 9, 1990, the Department of Justice, per Justice Secretary; now Executive Secretary Franklin M. Drilon, formally charged Prosecutor Sagsago, as follows:
"This
Department has found, after an evaluation of Resolution No. 114 . . .
of the Fact-Finding Commission . . . and your testimony, as well as
others, before said Commission, as borne by the pertinent records
thereof . . . that a probable cause for Disloyalty to the Republic and
to the Filipino people exists against you."
Likewise on the same date, Secretary Drilon placed Sagsago under preventive suspension for ninety (90) days pending formal investigation of the charge to be conducted by 2nd Assistant City Prosecutor Cielito N. Mindaro pursuant to Department Order No. 267 also dated March 9, 1990; the preventive suspension, however, expired on February 19, 1991. Subsequently, or on November 26, 1990, Department Order No. 283, designating State Prosecutor Cesar Solis to prosecute the case, was issued.
In his letter to Secretary Drilon dated November 21, 1990, and affirmed at the hearing on November 26, 1990, T.s.n, Session of November 26, 1990, 3-4, 8, 10, Sagsago denied the charge of disloyalty. While admitting his presence at the North Harbor, Manila, in the evening of November 30, 1989, he termed his presence as an act of indiscretion ("indescretion), for which he begged "[y] our acceptance of my remorse and apologies" "If only to relieve some of the burdens I now carry." Then followed his manifestation to adopt as parts of his answer his testimony in, certain exhibits presented to, all documents submitted to, the Davide Commission, Id., 10-11, T.s.n., Session of December 6, 1990, 7, and his letter of November 26, (21), 1990, T.s.n., Session of December 6, 1990, '7.
After formal investigation, Acting Secretary of Justice Silvestre H. Bello III submitted his Memorandum, dated 2 August 1991, containing his findings and recommendation, for my consideration.
The Acting Secretary of Justice succinctly summarized the evidence as follows:
"Culled
from the testimonies, it appears that sometime in the second week of
October 1989, the respondent attended a gathering (Comments of the
Respondent, p. 143, Folder I; tsn., 10 January 1991, pp. 13-17, Folder
II; p. 101, Folder III); that among those present in the said gathering
were Lt. Col. Eduardo 'Red' Kapunan, Sgt. Ocon and Sgt. Mendez; that on
26 November 1989, at the Orange Country Tavern in Baguio City, Sgt.
Rodolfo Ocon learned of a general meeting which would be scheduled and
which would be held at Pier 8, North Harbor, Manila (tsn., 11 January
1991; pp. 1-2, Folder II); that at about 3 o'clock in the afternoon of
28 November 1989, at the Tondo Restaurant in Baguio City, Sgt. Ocon was
informed by MSgt. Abe about another assembly or general meeting at 5
o'clock in the afternoon of 30 November 1989 at Pier 8, North Harbor
and for him to inform the other members who might be interested in
attending that meeting (Folder III, p. 124; tsn., 10 January 1991, pp.
35-36, Folder II); that sometime in mid November, Sgt. Ocon told Sgt.
Mendez that there was going to be a meeting at the North Harbor (tsn.,
11 January 1991, pp. 37-38, Folder II; tsn., 31 May 1990, p. 10 Folder
VI); that Sgt. Ocon told Sgt. Antonio Alimbuyao about the general
meeting of the Guardians (tsn., 11 January 1991, pp. 21-26, Folder II);
that at about 6 o'clock in the morning of 30 November 1989, Sgt. Mendez
informed Sgt. Jovito Marron about a meeting at Pier 8; that Sgt. Mendez
asked Sgt. Marron to tell the respondent about it (tsn., 27 December
1989, pp. 14-16, Folder II; tsn., 31 May 1990, p. 11 Folder VI); that
at about 6:30 o'clock; in the morning-of 30 November 1989, Sgt. Marron
instructed Nena P. Edduba to inform her uncle, the respondent, about
the meeting; that Edduba, relayed the message to her uncle at about 7
o'clock in the morning of 30 November 1989 (tsn., 26 November 1990, pp.
32-38, Folder II); that at around 9 o'clock in the morning, the
respondent, Ikeuchi and three (3) others asked Daniel T. Fariñas
if he knew of a driver for Manila (tsn., 26 November 1991, pp. 13-32;
that at about 8:25 o'clock in the evening of 30 November 1989, Sgt.
Ocon proceeded to the restaurant as told to him by Msgt. Abe at the
North Harbor (tsn., 10 January 1991, p. 38); that Sgt. Camacho arrived
at Pier 8, between 6 and 7 o'clock in the evening of 30 November 1989;
that Sgt. Alimbuyao arrived alone at Pier 8 at past 5 o'clock in the
afternoon of 30 November 1989; that Sgt. Mendez and Sgt. Daza, in
civilian clothes and unarmed, arrived at North Harbor in the afternoon
of 30 November 1989 (tsn., 31 May 1990, p. 12, Folder VI); that the
respondent and Ikeuchi left Baguio City at about 9:30 o'clock in the
morning of 30 November 1989 (tsn., 5 May 1990, p. 17, Folder V); that
they reached Pier 8 about 6:30 o'clock in the evening of that day
(Sworn Statement of the respondent, Folder III, p. 36, tsn. 10 January
1991, pp. 36-45, Folder II); that the respondent and Ikeuchi saw Sgt.
Mendez and Sgt. Ocon together with some 12 to 15 soldier members from
the PMA sitting in one of the restaurants thereat (Sworn Statement of
the respondent, Folder III, p. 36); that Sgt. Ocon met Sgt. Camacho and
Sgt. Alimbuyao thereat (tsn., 10 January 1991, pp. 36-45, Folder II);
that they passed the time in the restaurant; that, mean-while, other
members from the PMA had started arriving until their total number
reached thirty (30); that at about 9:30 o'clock in the evening, someone
asked them if their group came from Baguio City, to which they answered
in the affirmative; that they were asked by the person to follow him
and they went to the building of the Philippine Ports Authority (PPA)
(tsn., 10 January 1991, pp. 36-45, Folder II; Sworn Statement of the
respondent, Folder III, p. 36); that the place was filled with people
and that there was some sort of festivity inside; that after partaking
of the food and drinks thereat, the respondent went outside; that the
respondent, Sgt. Alimbuyao and Sgt. Camacho remained outside because it
was hot inside the building (Ibid.); that at about 11 o'clock, a
certain 'somebody' arrived; that this 'somebody' announced at the
gathering about the 'good news' which is to change the government
because it is corrupt that this 'somebody' asked if the Baguio group
was joining; that Sgt. Ocon answered, "if it is for the good of the
country' (tsn., 10 January 1991 pp. 36-45, Folder II; tsn., 31 may 1990
Folder, VI); that the respondent called to Ikeuchi who, in turn, called
Sgt. Mendez who also called to Sgt. Ocon; and that the respondent told
them something wrong was happening so they were not joining and they
were going to disperse quietly in groups of two's or three's (Sworn
Statement of the respondent, Folder III, p. 37; tsn., 31 May 1990; pp.
20-35, Folder VI; tsn., 10 January 1991, pp. 36-45, Folder II; tsn., 11
January 1991, pp. 31-33)," (at pp. 3-4).
Evaluating the evidence, the Acting Secretary of Justice found these insufficient to support the charge for disloyalty to the Republic and the people, saying, in his Memorandum for me, Id., at 5-6, that:
"For
the reasons stated hereunder, we do not find sufficient evidence to
hold the respondent liable for Disloyalty to the Republic and to the
people, but find, however, that the evidence would sustain respondent's
liability for Conduct grossly prejudicial to the best interest of the
service.
"It is admitted that the
respondent is the President of the Guardians Center Foundations, Inc.
(GCFI) in Region I. It is also concede that the respondent, together
with Ikeuchi, Sgt. Ocon, Sgt. Mendez, Sgt. Camacho and Sgt. Alimbuyao,
left Baguio City in the morning of 30 November 1989 to attend a meeting
of the GCFI at Pier 8, North Harbor. It has been established that they
and other members of the GCFI, totaling about thirty (30) in all, were
present on that evening at the North Harbor. However, it has not been
shown that they were armed and/or provided with firearms to indicate
their support for the December 1989 coup attempt.
"From
the testimonies given during the investigation, there appears to be
inconsistencies as to the presence of the respondent inside the room
when the announcement concerning the 'good news' that the government
would be changed because it is corrupt, was made. However, the fact
remains that when the announcer (the 'somebody' referred to in the
testimonies of witnesses) asked for the reaction of the Baguio group it
was Sgt. Ocon who relied, 'if it is for the good of the country.' All
witnesses, namely: Sgt. Ocon, Sgt. Mendez, Sgt. Camacho, Sgt.
Alimbuyao, and even Ikeuchi in his testimony before the Davide
Commission, were unanimous in saying that the respondent had decided,
then and there to warn his group that something wrong was happening,
that they were not joining the coup d'etat, and that they should
disperse quietly in groups of two's or three's.
"Obviously, these are not acts
of Disloyalty which, as an administrative offense, is punishable with
dismissal under Civil Service Commission (CSC) Memorandum Circular No.
30, s. 1989, entitled "Guidelines in the Application of Penalties in
Administrative Cases'. Disloyalty is not defined nor is it mentioned as
one of those grounds for disciplinary action enumerated under Sec. 36 of Presidential Decree No. 807, otherwise known as the Civil Service
Decree of the Philippines.
"The offense of Disloyalty,
however, can be inferred from Republic Act No. 6713, otherwise known as
the "Code of Conduct and Ethical Standards for Public Officials and
Employees' (20 February 1989), the pertinent portion of which reads as
follows:
"SEC. 4 (A).
(g)
"On
the basis of the foregoing, the respondent, in deciding not to join the
December 1989 coup attempt' and enjoining his members not to
participate therein, manifested by deed the supremacy civilian
authority over the military, and therefore, his commitment to
democracy.
"Assuming arguendo that at about
11 o'clock in the evening of 30 November 1989, respondent was then
inside the PPA room and that he merely kept silent when a certain
'somebody' asked what the Baguio group can say about the 'good news',
his silence thereat cannot be construed as Disloyalty. Furthermore,
respondent's decision for him and his group not to join the December
1989 coup and instead leave the premises quietly discounts acts of
Disloyalty. In the case of United States vs. Ravidas, 4 Phil. 271
(1905), the Supreme Court held that Act No. 292 of the Civil Commission
defines and specifies the acts which shall be punished as insurrection,
but among those acts, the silence of the defendant as regards the
existence of some insurgents in a certain place is not enumerated;
however reproachful the silence of the defendant may be, it does not in
itself constitute the crime of insurrection."
However, the Acting Secretary of Justice saw such conduct as "Conduct Grossly Prejudicial to the Best Interest of the Service", explaining, that:
"The
respondent admits having attended a meeting where Lt. Col. 'Red'
Kapunan, a known rebel, was present, yet being a public officer, he did
not report the presence and/or his sighting of the rebel officer,
thereby contributing to, if not actually hindering, the Government's
efforts at capturing rightist rebels. This fact, in conjunction with
his presence on the eve of the coup at the Pier in North Harbor, where
people were gathering in strength for the launching of the coup d'etat,
albeit the fact that he did not, by overt acts, join the coup itself,
his presence thereat, being then a public officer, caused the
Government and this Department great embarrassment, a fact which the
respondent admits and realizes as a fault. As the respondent puts it,
he 'did not exercise proper caution, judgment, or wisdom.'" (6-7)
Accordingly, he recommended the imposition of the penalty of suspension for a period of one (1) year without-pay.
I agree with the findings and recommendation of the Acting Secretary of Justice. It bears noting that Sagsago himself, in his letter to Secretary Drilon of November 21, 1990 decried his own conduct as follows:
"I
am fully aware that my presence at the North Harbor caused too much
embarrassment to the Department particularly to the Secretary of
Justice in view of my official position. The event has made me
anachronistic to the Department which is presently prosecuting rebels
whether of the left or the right."
even as he continued:
"In
the light of the present charge against me, it may appear and seem
suspect, if not insincere, were I to say I am sorry. But truly I am and
more than this I feel so much ashamed because my very Superiors in the
Department are effected by my indescretion. If, I am humbling myself,
it is not so much as to save my career or what is left of it now but
because, it is only proper for I am the cause of all these troubles.
If only to relieve some of the
burdens I now carry, may I beg your acceptance of my remorse and
apologies."
WHEREFORE, Fourth Assistant City Prosecutor ELMER MANUEL SAGSAGO of Baguio City is hereby found guilty of Conduct Prejudicial to the Interest of the Service and, accordingly, suspended from office for a period of one (1) year without pay, effective upon his receipt of a copy of this Administrative Order.
DONE in the City of Manila, this 24th day of September, in the year of Our Lord, nineteen hundred and ninety-one.
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