G.R. No. 174312   -   CAPT. ERNESTO S. CABALLERO, Petitioner,            - versus - PHILIPPINE COAST GUARD EFFICIENCY AND SEPARATION BOARD (PCG-ESB), COMM. ELPIDIO B. PADAMA, CAPT. ALEJANDRO N. FLORA, CAPT. ANTONIO LALISAN, CAPT. CESAR A. SARILE, CDR. EDUARDO DUMLAO, CDR. LUIS TUASON, JR., AND LT. LAZARO ERNESTO C. VALDEZ, JR., in their capacity as members of the PCG-ESB, PHILIPPINE COAST GUARD (PCG), DEPARTMENT OF TRANSPORTATION AND COMMUNICATION (DOTC) and JENNIFER G. LIWANAG, Respondents.

 

 

                                                      Promulgated:

 

                                                              September 22, 2008

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SEPARATE CONCURRING OPINION

 

CARPIO, J.:

 

          I concur in the result of the majority opinion that the Philippine Coast Guard Efficiency and Separation Board (PCG-ESB) has jurisdiction to conduct administrative proceedings against Capt. Ernesto Caballero.

 

          The Philippine Coast Guard (PCG) was created under Republic Act No. 5173 (RA 5173)[1]  as a major unit of the Philippine Navy. Under Section 4 of RA 5173, the PCG is administered and maintained as a separate unit of the Philippine Navy. Pursuant to Presidential Decree No. 601, issued on       9 December 1974, the PCG was placed under the direct supervision and control of the Secretary of National Defense.[2]

 

          On 30 March 1998, then President Fidel V. Ramos issued Executive Order No. 475, transferring the PCG from the Department of National Defense to the Office of the President. Subsequently, Executive Order      No. 477 (EO 477) was issued on 15 April 1998, transferring the PCG from the Office of the President to the Department of Transportation and Communication (DOTC). Under Section 1 of EO 477, the DOTC shall exercise administrative supervision over the PCG.

 

          On 6 November 2000, the DOTC Secretary issued Department Order No. 2000-61, creating the PCG-ESB. Subsequently, DOTC Memorandum Circular No. 2000-64 was issued which prescribed the rules and regulations, and the procedures governing the discharge or separation from the Coast Guard service of PCG Officers. On 9 December 2002, the DOTC Secretary issued Department Order No. 2002-76 on the re-composition of the PCG-ESB. In effect, the DOTC created PCG-ESB patterned after the Efficiency and Separation Board established under Executive Order No. 337 (EO 337),[3] and prescribed its implementing rules and regulations.

         

          The paramount effect of the transfer of the PCG from the Department of National Defense to the Office of the President and eventually to the DOTC is the transformation of the PCG into a non-military agency. Thus, the PCG is already civilian in character. By removing the PCG under the control and supervision of the military, the PCG ceased to be a part of the military establishment, and has already assumed civilian character.  Thus, in Soriano III v. Lista,[4] the Court held that the promotions and appointments of PCG officers do not require confirmation by the Commission on Appointments  since the constitutional provision on “officers of the armed forces from the rank of colonel or naval captain” requiring such confirmation refers only to military officers.

 

          The DOTC’s creation of PCG-ESB patterned after the Efficiency and Separation Board established under EO 337 for the Armed Forces of the Philippines and its major services does not mean that the PCG is still covered by the military rules on administrative discipline. It should be emphasized that the PCG-ESB was created under DOTC Department Order No. 2000-61, which was issued by the DOTC  Secretary in the exercise of his power of administrative supervision over the PCG. Under Section 38(2), Chapter 7, Book IV of Executive Order No. 292 (EO 292),[5] administrative supervision includes the authority of the Department to take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of maladministration.[6] Section 7(5), Chapter 2,  Book IV of EO 292 provides that among the powers and functions of a Department Secretary is  to exercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation. The Secretary is also mandated to promulgate not only rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects, but also administrative issuances necessary for the efficient administration of the offices under the Secretary and for proper execution of the laws relative thereto. Section 7, Chapter 2, Book IV of  the Administrative Code of 1987 provides:

 

            SEC. 7. Powers and Functions of the Secretary. – The Secretary shall:

                        x x x

 

            (3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;

 

            (4)  Promulgate administrative issuances necessary for the efficient administration of the offices under the Secretary and for proper execution of the laws relative thereto. These issuances shall not prescribe penalties for their violation, except when expressly authorized by law;

 

            (5)  Exercise disciplinary powers over officers and employees under the Secretary in accordance with law, including their investigation and the designation of a committee or officer to conduct such investigation;

 

            x x x (Emphasis supplied)

 

 

Thus, the DOTC’s administrative supervision over PCG includes the authority to adopt policies and implement appropriate measures to regulate the conduct and discipline of the PCG personnel.

 

          Clearly, the DOTC Secretary, exercising administrative supervision over PCG pursuant to EO 477, acted within his jurisdiction and authority  under EO 292 when he issued Department Order No. 2000-61,  Memorandum Circular No. 2000-64, and  Department Order No. 2002-76.

 

 

 

 

 

          Thus, I submit that the creation of the PCG-ESB is valid and that  the PCG-ESB has jurisdiction to conduct administrative disciplinary proceedings against Capt. Ernesto Caballero.  

 

          Accordingly, I vote to DISMISS the petition.

 

 

ANTONIO T. CARPIO

      Associate Justice

 

 


[1]              An Act Creating the Philippine Coast Guard, Prescribing its Powers and Functions, Appropriating the Necessary Funds Therefor, and for Other Purposes.

[2]              See Section 4, Presidential Decree No. 601.

[3]              Prescribing Regulations Governing the Discharge or Separation by Administrative Action of Officers of the Regular Force and Reserve Officers on Extended Tour of Active Duty in the Armed Forces of the Philippines.

[4]               447 Phil. 566 (2003).

[5]              Otherwise known as the Administrative Code of 1987.

[6]               Section 38(2), Chapter 7, Book IV of EO 292 reads:

 

                (2) Administrative Supervision. –  Administrative supervision which shall govern the administrative relationship between a department or its equivalent and regulatory agencies or other agencies as may be provided by law, shall be limited to the authority of the department or its equivalent to generally oversee the operations of such agencies and to ensure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; or require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; to take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of maladministration; and to review and pass upon budget proposals of such agencies but may not increase or add to them.