Republic of the PhilippinesCOURT OF APPEALS

Manila

____________DIVISION

RICARLITO J. ALIVIO

Petitioner,

- versus - C.A. Case No ______

LUCITA T. MADARANG, SALARY GRADE 26DirectorMaritime Industry AuthorityRegional Office No. V, Legaspi City

Respondent

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PETITION FOR REVIEW 1

Petitioner, through counsels, unto this Honorable Court, most respectfully state :

I.PREFATORY STATEMENT

1 Considering that the case at bar was a consolidation of an administrative and a criminal complaint, petitioner had the option to either file a petition for review under Rule 43 with the Court of Appeals or directly file a certiorari petition under Rule 65 before the Supreme Court .( AMANDO P. CONTES v. OFFICE OF THE OMBUDSMAN (VISAYAS), ET AL., GR. NO. 187896-97, June 10, 2013)

This is an appeal under Rule 43 of the Rules of Court from the decision of the Office of the Deputy Ombudsman for Luzon in Office’s Joint Resolution dated 10 August 2006 in OMB-L-C-06-0341-C for Violation of Section 3(e) of Republic Act No. 3019 and OMB-L-A-06-0251-C for Misconduct entitled “ Ricarlito J. Alivio vs. Lucita T. Madarang. A certified copy of the Decision in question is hereto attached as Annex A and is hereinafter referred to as “Ombudsman Decision” for brevity.

II. STATEMENT OF MATERIAL DATES

Notice of the said Ombudsman Decision was received by herein petitioner on 20 March 2015. Acting in his own capacity and without employing the services of a lawyer, petitioner filed Motion for Reconsideration of the Ombudsman Decision on 20 April 2015. However, on 30 April 2015, the Office of the Deputy Ombudsman in its Joint Order denied the motion for reconsideration. Notice of the said Joint Order was received by the complainant on 28 May 2015. The 15-day reglementary period ends on 13 June 2015. Thus, this petition for review is filed within the reglementary period.

III.PARTIES

Pettioner Ricardo J. Alivio is a retired Coast Guard Station Commander and is presently residing at 266 Barangay Sampaloc, San Rafael, Bulacan, Philippines. He is represented by herein counsel.

Respondent, on the other hand, is Lucita Madarang , Director of the Maritime Industry Authority Regional Office No. V., Legazpi City where she may be served with summons and other processes by this Honorable Court.

IV. CONCISE STATEMENT OF THE MATTERS INVOLVED

This is an appeal of the Joint Resolution of the Office of the Deputy Ombudsman for Luzon dated 10 August 2006 in OMB-L-C-06-0341-C for Violation of Section 3(e) of Republic Act No. 3019 and OMB-L-A-06-0251-C for Misconduct dismissing the complaint filed by the petitioner against the respondent.

The focal point of this Petition is to call the urgent attention and action of this Honorable Court to what petitioner believe is a grave failure of the decision and misapprehension of facts which is prejudicial to the government of the Philippines and runs afoul to the constitutional and statutory enactments in curbing graft and corrupt practices act. Simply put, the Ombudsman decision was done in haste and no real consideration on the evidences attached to the complaint submitted by the petitioner. This is largely a mixed question of facts and of law particularly Sec. 3(e) of Republic Act 3019 otherwise known as Anti-Graft and Corrupt Practices Act which provides, to wit :

“Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

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(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.”

The petitioner who is an advocate of a clean and honest government and a dedicated public service is becoming frail enough to seek solution of this epidemic corruption in the country upon learning of the railroaded Ombudsman Decision. However, the petitioner is still clinching an iota of hope that this Honorable Court upon perusal of this case based on the evidences attached be convinced that the respondent is and beyond

reasonable doubt guilty of the violating the aforecited section of R.A. 3019 and is administratively liable for misconduct in office.

IV.DISCUSSION

A. The Office of the Deputy Ombudsman did not make a real and honest investigationand consideration of the case rendering itsdecision void.

The petitioner only came to know and received the 10 August 2006 Ombudsman decision on the late afternoon of 20 March August 2015 while in the company of a friend subscribing his complaint affidavit at the Office of the Deputy Ombudsman for Luzon where the copy of such was provided after formal request.

The petitioner has been waiting for the respondents’ and/or Ombudsman action since his filing of the case against respondent in 06 January 2006.

It was on 26 October 2006, that petitioner sent a letter to the Honorable Ombudsman (Annex B) inquiring as to the status of the complaint against Dr. Nestor F. Santiago Jr. et.al., Commander Ireneo Endozo Philippine Coast Guard (PCG) and Respondent, Director Lucita T. Madarang.

After four (4) years of petitioners letter in inquiry in Annex B, the Honorable Ombudsman finally answered it on 9 February 2010, (Annex C) specifying that the case against Director Madarang docketed as OMB-L-C-06-0341-C (criminal aspect) and OMB–L-A-06-0251-C (administrative aspect) has been submitted for final review and approval but it failed to specify that four (4) years ago, 10 August 2006, the Honorable Ombudsman had already decided the case against Director Madarang even two (2) months before petitioner’s letter in Annex B.

Since petitioner is the one who prepared the instant motion, the same was submitted only on 20 April 2015, due to the untoward incident

within his abode on the following day (21 March 2015) of his receipt of the 10 August 2006 Ombudsman Decision. (Annex D).

The petitioner was pre-occupied in the police appearances, documentation and the preparation of his Complaint Affidavit and that of the Joint Complaint Affidavit of Mr. Arturo Torbiso and Mike Biadnes and subsequent filing of the case against Barangay Captain Arnel Cruz et.al. for Grave Misconduct, Grave Abuse of Authority; Violation of Anti- Graft and Corrupt Practices Act (RA-3019); Violation of Domicile ART. 128, RPC; Malicious Mischief, ART. 327, RPC; Theft, ART. 308, RPC; Grave Threat, ART. 282, RPC; Violation of RA 6713; Violation of RA - 9994; Violation of RA -7279; Violation of PD 1866 and filed before the Honorable Ombudsman on 8 April 2015, (Annex E and F)(Please see receipt of the Ombudsman of aforesaid complaint).

As specified in the 10 August 2006 Ombudsman Decision, respondent was required to submit her counter Affidavit on 6 April 2006 but categorically, petitioner has not received the counter affidavit neither a position paper from the respondent. As stated in the 10 August 2006 Ombudsman Decision, petitioner was furnished with a copy of such using the address Coast Guard Station Legaspi, Pier Site, Legaspi City, however petitioner categorically denied having received copy of the 10 August 2006 Ombudsman Decision. If indeed, respondent’s counter affidavit and the Ombudsman Decision were forwarded to the aforesaid address, Coast Station Legaspi denied receipt thereof and has not forwarded both copies to petitioner through the Coast Guard Adjutant, Headquarters Philippine Coast Guard, Port Area, Manila, the message center of the Philippine Coast Guard, for his(petitioner) cognizance, perusal and appropriate action.

The petitioner was no longer assigned with Coast Guard Station Legazpi when the 10 August 2006 Ombudsman Decision was pronounced and was supposedly delivered to Coast Guard Station Legazpi after Capt. Tuason unceremoniously relieved petitioner of his post as Station Commander, Coast Station Legaspi on 20 January 2006 three (3) days after the latter’s assumption as Commander of Coast Guard District Bicol and fourteen (14) days after the petitioner’s filing of his complaint against Director Lucita T. Madarang, MARINA V. before the Office of the Honorable Ombudsman.

Subsequent to Complainants’ unceremonious relief, Capt. Tuason charged petitioner with fabricated cases on 02 February 2006 relative to petitioner’s disposition on M/V Rodolfo Jr. and on 28 March 2005 on the alleged missing narra that happened long before his term notwithstanding his devilish action of putting petitioner on Absence Without Official Leave (AWOL) when the latter was already released to report to his new unit assignment followed by Capt. Tuason and others riotous dissemination of libelous radio messages against petitioner to all PCG units nationwide and in fact, unfairly indicted petitioner on the fabricated charges that lead to his illegal retirement from the PCG service.It is crystal clear that Capt. Tuason was clearly exacting vengeance against petitioner for his filing of anti-graft and corrupt practices act cases before the Ombudsman against Director Lucita Tuason Madarang.

All of respondents’ assertions and that of the espoused or advocated contentions in the 10 August 2006 Ombudsman Decision in can all be crashed, subverted, denounced, rebutted and rejected by all of the petitioner’s presentation and attachments in his complaint against respondent most specifically on Exhibits 10, 13, 14, 16 and 18 of the complaint(Annex G) if only it was darely cared and scrutinized will eventually point out on respondents’ guilt on the petitioner’s charges against her. Exhibits 10, 13, 14, 16 and 18 of the complaint (Annex H) serves as petitioner’s administrative remedy prior to his filing of anti-graft case against respondent for her reconsideration of her anomalous dismissal on the case of M/V Rodolfo Jr. and LCT Don Wifredo in paragraph 12 of the complaint as the respondent has no legal rights to encroach, usurp, dispose on PCG functions or to dismiss PCG Memorandum Circular violations as the PCG is not under MARINA but respondent never gave a damn, instead, stand firm and steadfast in justifying her decision through her superfluous justification and alibi and even insulted petitioner and demeaning the PCG and even despite of petitioners forewarning in the last paragraph of his 12 December 2005 letter,as can be gleaned in Exhibit18 of the complaint (Annex I) to wit:

“Since the matter cannot be resolved as you continue to defend your biases against CGS Legazpi in favor of Candano Shipping Lines, I am now therefore constrained to submit this matter for adjudication to the office of the Ombudsman.”.

B. Respondent is lying of having real pieces of evidence.

Respondent is categorically lying that her issuances of Cease and Desist Orders as well as Dismissal Order were based on the real pieces of evidence and not conjectures and surmises. What real pieces of evidence that respondent is referring to? MARINA is not the apprehending unit of Candano Shipping Lines vessels but the PCG (CGS Legaspi in case of LCT Don Wilfredo and M/V Maria Lourdes and CGS Zamboanga in case of M/V Rodolfo Jr). The PCG was the one conducting inspection, boarding procedures and issued the Inspection Apprehension Report (IAR) and the adjudication of their maritime violation not MARINA nor the respondent. Hence, the evidence is with Coast Guard Station Legazpi not with respondent. It is the respondent actions to the contrary that are conjectures and surmises as she doesn’t have the evidence.

Coast Guard Station Legazpi’s action are proper and factual as all of our apprehensions were supported by documentary evidence such as Inspection Apprehension Report (IAR), Boarding Certificate and the Master and Chief Engineer signed in the Inspection Apprehension Report (IAR) and Boarding Certificate their concurrence of their committed maritime violations, PCG MC or MARINA MC violations alike. Likewise, Master and Candano Shipping Lines representatives admitted the commissions of maritime violations during CGS Legaspi’s hearing and Candano Shipping Lines paid / were receipted of their fines on PCG violations.

C.Respondent is lying that she accorded Due Process the respondent shipping companies.

Respondent is categorically lying she accorded the respondent shipping companies (Candano Shipping Lines) the right to due process of On the contrary what the respondent has superbly accorded and extended to Candano Shipping Lines were special insurmountable and superfluous

favors by deliberately and wantonly dismissing all of its maritime violations (MARINA MC and PCG MC violations) as specified in petitioner’s adjudication in Exhibits 1, 2, 3, 4, 6 and 8 of the complaint (Annex J) as endorsed by COMMO LALISAN in Exhibits 5 and 9 of the complaint (Annex K) at the expense of the PCG, the apprehending unit and petitioner, the Hearing Officer and at the expense of the government by respondents deliberate and wanton repudiation of income due to the government in the total amount of Five Hundred Forty Thousand Pesos (P540,000.00) on MARINA Memorandum Circular violations alone. Two Hundred Sixty Thousand (P260,000.00) for M/V Rodolfo Jr.,One Hundred Twenty Five (P125,000.00) for LCT Don Wilfredo, and One Hundred Fifty Five Thousand Pesos (P155,000) for M/V Maria Lourdes which was not collected and put to naught aside from the non-implementation of the sanctions and cancellation of the CPC/PA/SP of Candano Shipping Lines and the cancellation of the SIRB and the revocation of STCW Endorsement Certificate of CAPT Nathaniel Latorena, master of M/V Rodolfo Jr. which is in gross violation of Section 3(e) of Republic Act - 3019 otherwise known as the Anti-Graft and Corrupt Practices Act as it deprives the government of the money ought to be brought to its coffers.

If due process was observed hereof, respondent should have invited the PCG (Coast Guard Station Legazpi) when they had allegedly conducted hearing on Candano Shipping Lines Vessels prior to its dismissal of their cases as right and proper being the apprehending unit, the one issuing the Inspection and Apprehension Report (IAR), conducting the adjudication and the Hearing Officer of the case especially so on M/V Maria Lourdes that aside from MARINA MC and PCG MC violations is also violating Republic Act No. 8172 or An Act Promoting Salt Iodization Nationwide and for Related Purposes (ASIN LAW) which they knew pretty well of the apprehension thereof but respondent deliberately did not.

Respondent’s deliberate inaction hereto only legibly portrayed respondent’s biases in favor to maritime violators, Candano Shipping Lines and its crew which constitutes graft and corrupt practice.

D.Respondent wantonly disregarded Commo Antonio Lalisan’s Endorsement on the cases of Candano Shipping Lines Vessels

Commo Antonio C Lalisan, the Commander of Coast Guard District Bicol of the PCG, finding justifiable merit on petitioner’s adjudication proceedings on Candano Shipping Lines vessels concurs and formally endorses, Exhibits 5 and 9 of the complaint and his adjudication in Exhibits 1, 2, 3, 4, 6 and 8 of the complaint to respondent for the collection of the payment on MARINA violations and imposition of sanctions, the cancellation of CPC / PA / SP on Candano Shipping Lines and cancellation of SIRB / STCW Endorsement Certificate of CAPT Nathaniel Latorena, master M/V Rodolfo Jr. and Capt Carlos Caparoso, master of LCT Don Wilfredo as it is within the ambit of the functions of respondent’s office, MARINA.

Worthy to note that both Candano Shipping Lines and respondent did not object or interpose their objection nor they are contesting the petitioners Adjudication in Exhibits 1, 2, 3, 4, 6 and 8 of the complaint as well as Commo Lalisan’s endorsement in Exhibits 5 and 9 of the complaint. What Candano Shipping Lines only formally requested from Commo Lalisan is their preference to settle or pay their fines with MARINA on MARINA MC Violation as stipulated in the petitioner’s letter to respondent in Exhibit 19 of the complaint. Respondent however deliberately and wantonly proceeded on the dismissal of the case of M/V Rodolfo Jr. and LCT Don Wilfredo in Exhibits 12 of the complaint (Annex L) and likewise deliberately disregarded and discarded Commo Lalisan’s endorsement in Exhibits 5 and 9 of the complaint without the benefit of formal hearing and/or inviting the apprehending elements and Hearing Officer for their respective comments or testimonies which is but proper and a mandated protocol.

It is the duty of the respondent to notify or summon the petitioner, the Hearing Officer or Commo Lalisan if respondent does not honor the adjudication of the Hearing Officer and the endorsement of Commo Lalisan and/or if the respondent has questions or doubted the adjudication proceedings so that the petitioner, the Hearing Officer or Commo Lalisan can support or prove the truthfulness or validity of the proceedings and elaborate thier actions, findings and recommendation or might as well

stand as complainant of the case. Respondent had no mention in her dismissal and the Cease and Desist Order on Candano Shipping Lines vessels as to what action she had undertaken on the endorsement of Commo Lalisan in Exhibits 5 and 9 of the complaint relative to the petitioner’s adjudication in Exhibits 1, 2, 3, 4, 6 and 8 of the complaint when it was specifically inquired and requested by the petitioner in his 10 August 2005 letter to respondent ( Exhibit 10 of the complaint) that if she do not act or honor the endorsement of Commo Lalisan complaint so that we can refer the matter to the right agency than waiting for nothing but instead being discriminated.

Petitioner on his letter to respondent also inquired as to what action that Respondent had undertaken on our endorsement on LCT Don Wilfredo and likewise soliciting an advice as to where to elevate our endorsement in Exhibits 1, 2, 3, and 4 of the complaint as subject vessel is still operating despite the 19 May 2005 endorsement of Commo Lalisan for the cancellation of CPC / PA / SP and cancellation of SIRB / STCW Endorsement Certificate of Capt Carlos Caparoso, master LCT Don Wilfredo.

E.Respondent’s grant of clemency for non - payment of fines of candano shipping lines vesselsis illegal, grossly unethical,unprofessional and anomalous.

Respondent’s act of granting clemency on Candano Shipping Lines and vessels is clearly illegal, grossly unethical, unprofessional and anomalous for respondent deliberately disregard the endorsement and/or act on the recommendation of Commo Lalisan for the sanctions and recommendation for the suspension of cancellation of SIRB / STCW Endorsement Certificate of Capt Carlos Caparoso, master LCT Don Wilfredo and Capt Nathaniel Latorena, master M/V Rodolfo Jr. for PCG MC violations (HPCG MC 04-98 paragraph XI sub paragraph b3) as it has undergone proper adjudication proceedings and it is beyond the ambit of respondent’s office to dismiss such.

The petitioner’s overwhelming disappointment on respondents’ dismissal of the case of Candano Shipping Lines vessels and her wanton disregard of Commo Lalisan’s endorsement was expressly stipulated in paragraph 7 in his 21 November 2005 letter to respondent, Exhibit 16 of the complaint (Annex M) to wit:

“if you sacrifice for the non-payment of MARINA violations and the implementation of the relative sanctions on Candano Shipping lines, please do not include that of the PCG as it may dampened and dumped the sanctity of our noble purpose and intentions notwithstanding our inconvenience and sacrifices.” …….. “The total collectible penalty on Candano Shipping Lines for MARINA violations is P540,000.00. Why, are you not pleased for us toiling for your agency to collect additional revenue for you and the government?”

Coast Guard Station Legazpi was really aggrieved, adversely affected and felt insulted as to why respondent, MARINA V is so indifferent to thier adjudication proceedings when other MARINA Regional Director / offices where they have been endorsing similar adjudications were receptive and even grateful to thier courageous actions against maritime violators so much of collecting sumptuous penalties out of their religious drive in maritime law enforcement and diligent implementation of MARINA Memorandum Circulars that add insurmountable income to their treasury.

With respondent foregoing actions, it dawned to them the compelling reason why Candano Shipping Lines was too eager to formally request before Commo Lalisan to choose to pay their MARINA MC violations with respondent when they can very well pay their penalty with the PCG for MARINA if they really have the intention to do so and intention to quash their case is not of respondent’s concern.

Further, petitioner find it strange why respondent is so sympathetic to maritime violators despite knowing of M/V Maria Lourdes apprehension being utilized in smuggling (case was referred to Atty. Enrile, Director, NBI Legazpi on 12 April 2005 for further investigation and dispositive action while the case against Dr. Nestor F. Santiago Jr. and et.al. in violation to R.A 3019 (Anti-Graft and Corrupt

Practices Act) was filed before the Ombudsman on 06 January 2005. The petitioner had articulated to the respondent in the ninth paragraph in his 21 November 2005 Exhibit 16 of the complaint to wit:

“Why is MARINA therefore sympathetic to maritime violators? If MARINA or MARINA - V subscribe or sympathetic to Candano Shipping Lines despite the forward presentation, please do not include us, the PCG as we still have our delicadeza and dignity left to contend with pride.”

. F. Vehement protest on respondent’s anomalous dismissal on the cases ofM/V Rodolfo Jr. and LCT Don Wilfredo

Respondent is categorically lying that those deficiencies of Candano Shipping Lines vessels were already rectified upon their inspection hence, her dismissal of their cases thereof but to the contrary.

On 22 October 2005, petitioner wrote respondent, Exhibit 13 of the complaint, (Annex N) manifesting his strong protest or complaint for the 29 September 2005 dismissal of the case of M/V Rodolfo in Cases Nos. LMRO (SC0) 05-036 and LCT Don Wilfredo in LMRO (SCO) 05-037, (Exhibit 12 of the complaint) as it is defective, highly questionable, inappropriate, irregular, anomalous and illegal as it encompasses PCG violations and/or what is being principally discussed in the dismissal and likewise the material and the equipment that were being cited for the eventual dismissal in the case of M/V Rodolfo Jr. are not requisites of MARINA MC violations but PCG MC violations which is beyond respondent jurisdiction and/or she do not have legal right to encroach on PCG functions as the PCG is not under MARINA where even the Administrator of MARINA do not have the authority to usurp, dispose PCG functions which are beyond the jurisdiction of his office so much so of ignoring or discounting the PCG’s imposition of penalty due to M/V Rodolfo Jr.

Respondent was practically usurping the PCG functions by obviously dismissing the PCG violations as clearly specified in the dismissal order. On the listed violations of M/V Rodolfo Jr. in the Inspection Apprehension Report (IAR), the respondent’s, as Director, of

MARINA V, only primary concern therein is the non-possession of Document of Compliance (DOC) / Safety Management Certificate and no port and starboard anchor. Both are major MARINA violations that warrant M/V Rodolfo Jr. detention.

Respondent deliberately failed to discuss in her dismissal the no port and starboard anchor, a MARINA MC violation but authoritatively discussed the non-possession of Oil Pollution Prevention Certificate (OPPC), Oily Water Separator (OWS) and No Fire Control Plan which are not MARINA MC violations but PCG MC violations. Petitioner candidly impressed upon respondent in his 22 October 2005, Exhibit 13 of the complaint that Coast Station Legazpi to wit:

“Candidly, we felt insulted by your actions especially so that our diligent efforts and service were only put to naught and further putting us, the apprehending element in the laughing stock.”

G. Respondent’s assertions on the rectification and compliance of defeciencies of MV Rodolfo Jr. were false and devoid of truth.

Respondent was categorically lying before the Honorable Ombudsman of claiming in her 29 September 2005 dismissal that MARINA Auditor had conducted inspection on M/V Rodolfo Jr. on 16 September 2005 on the compliance, rectification of its noted deficiencies i.e. Oily-Water Separator (OWS) and Oil Pollution Prevention Certificate of Compliance (OPPC) when in fact to the contrary respondents’ malicious claim herein is in fact in gross contradiction of the issued certificates and to her 20 January 2006 certification.

The Oil Pollution Prevention Certificate of Compliance (OPPC) of M/V Rodolfo Jr. was only issued and granted by Commo Antonio C Lalisan PCG on 18 October 2005, (Annex O). While the Accreditation of the CYSC-0.5 Type Oily-Water Separator (OWS) was only issued and signed by VADM GOSINGAN on 06 October 2005, (Annex P) and the radio message directing Station Commander, CGS Legazpi for the conduct of the inspection of the CYSC-0.5 Type Oily-Water Separator

(OWS) of M/V Rodolfo Jr. was only dispatched on 17 January 2006, (Annex Q) followed by the 18 January 2006 Letter Order of LCDR Nelson Torre to 9MEPU, CGD Bicol for the conduct of the inspection (Annex R).

Relative hereto, the inspection of the CYSC-0.5 Type Oily-Water Separator (OWS) and OPPC of M/V Rodolfo Jr. and was only respectively conducted by CGS Legazpi on 18 January 2006 per its Vessel Inspection Report, (Annex S) and CG Detachment Tabaco radio message, Inspection Report, (Annex T). Likewise 9MEPU, CGD Bicol only conducted the inspection of the OPPC and OWS of M/V Rodolfo Jr. on 19 January 2006 per its After Inspection Report to SC, CGS Legazpi on the MARPOL Equipment of M/V Rodolfo Jr. and other related documents (Annex U).

The 18 January 2006 per its Vessel Inspection Report, had in fact specifies the non-compliance of M/V Rodolfo Jr. of its deficiencies where it was recommended therein for re-inspection and compliance prior departure. Likewise inspection by Coast Guard Detachment Tabaco in its 18 January 2006 radio message also specifies non-rectification of its deficiencies.

Categorically therefore, M/V Rodolfo Jr. only possesses both the

OWS and OPPC, eight (8) months after the apprehension and issuance of the IAR (26 February 2005) for non-possession thereof; seven (7) months (12 April 2005) after petitioner’s adjudication of the IAR, (and twenty (20) days after the dismissal (28 September 2005) of Director Madarang on the case of M/V Rodolfo Jr. This is notwithstanding on other documentary justifications in Annexes O, P, Q, R, S, T and U and in her to her 20 January 2006 certification, Annex V.

Respondents’ inconsistent statements / pronouncement in her Dismissal Order further proved the anomalous dismissal thereof. How could respondent says the violation was rectified when her subsequent statement only shows the payment for the company’s shipboard manuals and it is yet to be audited by the field auditor and there was no possession yet by the company and M/V Rodolfo Jr. of the DOC / SMC but Director MADARANG dismissed the case of M/V Rodolfo Jr. on 29 September 2005?

H. Respondent’s certification further points on his anomalous dismissal on the case of M/V Rodolfo Jr. and LCT Don Wilfredo

On 20 January 2006, respondent furnished Coast Guard Station Legazpi a certification, (Annex V) certifying that Candano Shipping Lines has been audited per its compliance of MARINA Memorandum Circular 159 and had been favorably endorsed to Maritime Safety Office – MARINA for the issuance of Interim Document for Compliance (Interim DOC) per Memorandum dated 13 January 2006.

Respondent’s certification clearly manifested and specified of its endorsement on the recent audit on M/V Rodolfo Jr. which was only conducted on 13 January 2006 therefore clearly manifesting and that there was no possession yet by the company and M/V Rodolfo Jr. of the mandated Document of Compliance (DOC) / Safety Management Certificate (SMC) even on 13 January 2006 but Director Madarang had already dismissed the case of M/V Rodolfo Jr. on 29 September 2005, Exhibit 12 of the complaint therefore belying all its statement in the Dismissal Order that M/V Rodolfo Jr. had complied / rectified its deficiencies.

Respondent certification, therefore emphatically manifests that the DISMISSAL ORDER of M/V Rodolfo Jr. in LMRO 05-036 last 29 September 2005 is, UNSCRUPULOUS, HIGHLY QUESTIONABLE, INAPPROPRIATE, IRREGULAR, ANOMALOUS and ILLEGAL as M/V Rodolfo Jr. still and/or really do not have in its possession the required Document of Compliance / Safety Management Certificate (DOC / SMC) not only at the time of its apprehension last 26 February 2005 but specifically also in time when the dismissal was conceptualize or made last 29 September 2006 and further manifesting that there really was no audit that was conducted last 16 September 2005 as justified in the Dismissal Order.

It is absurd and inappropriate for respondent, that even of her stature and position as Director, MARINA -V she in fact doubted her

action, unsure of her position hereof by mentioning in the Certification to wit:

“hence, maybe considered in the absence of the subject DOC”.

I.The act of the respondent is violative of MARINA Memorandum Circular 139

Even granting for the sake of argument that the deficiencies of M/V Rodolfo Jr. were already rectified and complied upon the inspection of MARINA inspectors on 16 September 2005 as justified / basis for the 29 September 2005 Dismissal Order, M/V Rodolfo Jr., compliance and rectification thereof does not warrant the dismissal and/or does not wipe out the liability of LCT Don Wilfredo, M/V Rodolfo Jr. and M/V Maria Lourdes as the offense / violation was already committed and consummated.

There is no law which provides that violations are extinguished after the rectification of deficiencies therefore offenders can no longer be penalized or penalty can no longer be imposed and collected.

The provisions of respondents’ MARINA Memorandum Circular 139 (Annex X) being violated and that of HPCG MC (Annex Y) clearly provide the imposition of penalty corresponding to the committed violations but does not provide that rectification deficiencies will wipe out offenders violations and the corresponding penalty due thereof neither it specified clemency of fines and sanctions thereof against recalcitrant seafarers and shipping lines.

Respondent is categorically lying that the PCG deputize function in MARINA MC 139 is misplaced and/or is no longer applicable on the case at bar as it is deemed repealed by the enactment and effectivity of Republic Act No. 9295 and its implementing rules and regulations (IRR) ,hence, respondent interposing objection that petitioner no longer has the authority to adjudicate on the case of M/V Rodolfo Jr., LCT Don Wilfredo and other Candano Shipping Lines vessels by virtue of MARINA MC 139.

But to the contrary, the termination of the transition period and the full implementation of RA 9295 after its enactment in 2004 is only to effect on 11 June 2005 as agreed upon by MARINA and the PCG as specified in the PCG radio message (Annex Z) disseminated to all PCG units nationwide to wit:

“THE TRANSITION PERIOD FOR THE FULL IMPLEMENTAITON OF RA 9295 (DOMESTIC SHIPPING ACT) SHALL EXPIRE ON 11 JUNE 05 WHERE ALL VESSEL SAFETY FUNCTIONS PREVIOUSLY DEPUTIZED TO PCG INCLUDING SHIP INSPECTION PRIOR ISSUANCE OF CERTIFICATES AND ENFORCEMENT OF COMPLIANCE TO SAFETY RULES AND REGULATIONS SHALL REVERT TO MARINA”

The violations of M/V Rodolfo Jr., (26 February 2005); LCT Don Wilfredo (15, 23, 26, 30 April 2005) and M/V Maria Lourdes (09 April 2005) were respectively committed before the termination of the transition period hence, the PCG, the Station Commander (petitioner) still has the ambit authority to conduct adjudication as authorized / embodied in MARINA MC 139.

Respondent contention of Complainants’ ignorance in MARINA MC 139 is a misnomer. She, being a MARINA-V Regional Director is supposedly to be fully aware of the transition period and/or the termination of the deputized function. Her intentional ignorance could have been considered as just a simple inadvertence if she have not discerned and detected her indifference and superfluous biases in favor of Candano Shipping Lines.

If respondent, Regional Director, MARINA – V do not honor thier adjudication proceedings in Exhibits 1, 2, 3, 4, 6 and 8 of the complaint and the endorsement of Commo Lalisan in Exhibits 5 and 9 of the complaint, respondent,therefore, should have:

(b) Amended or provided them the amendment of their own MARINA MC 139.

(c) Strongly manifested their objection as early as April 2005 or in time / after Commo Lalisan’s 19 and 20 May 2005 endorsement, Exhibits 5 and 9 of the complaint of petitioner’s adjudication of Candano Shipping Lines vessels in Exhibits 1, 2, 3, 4, 6 and 8 of the complaint but respondent deliberately did not instead respondent even requested for the copy of the Inspection Apprehension Report (IAR) of LCT Don Wilfredo prior their appropriate action in Respondent letter last 27 June 2005, Exhibit 20 of the complaint, and in fact assured Complaint by further stating to wit:

“the undersigned truly appreciate your action to matters of mutual concern, thank you and warm regards”.

On 12 December 2005, Exhibit 18 of the complaint, petitioner wrote respondent vehemently expressing his forceful disagreement on Respondent claim in her 07 December 2005 letter Exhibit 17 of the complaint on her firm decision and emphatic defense to Candano Shipping Lines citing provisions of RA 9295 in reference to the 04 August 2005 Memorandum of Lamberto V. PIA, Deputy Administrator for Operations and Officer-In-Charge, MLAO to Director LMRO, Annex 6 in response to Respondent 19 July 2005 request for clarification before Director Lamberto PIA relative to the PCG’s termination of deputized function vis-à-vis the enactment of RA 9295.

Being null and void, petitioner vehemently disagree with the 04 August 2005 Memorandum (legal opinion) of Lamberto V. PIA, Deputy Administrator for Operations and Officer-In-Charge, MLAO to Director LMRO, (Annex AA) as it was referred by Respondent for clarification to Director Lamberto PIA only on 19 July 2005 and Director PIA made his legal opinion on 08 August 2005 all of which was made after the lapsed of the transition period, the termination of the PCG’s deputized function on 11 June 2006.

It is but understandable therefore that Director Pia’s legal opinion will favor Respondent’s referral. It could be otherwise if it had been referred and adjudged prior the termination of the transition period.

The MISCONDUCT and GRAVE ABUSE OF AUTHORITY of respondent Lucita T. Madarang is further fortified by her position being a Regional Director, MARINA – V who uses her position to grossly, conveniently deprive the government of due income.

WHEREFORE, in view of the foregoing premises, it is respectfully prayed that the Ombudsman Decision dated 10 August 2006 be set aside and that a new decision be issued declaring the respondent guilty for violating Sec 5 (e) of Republic Act No. 3019 otherwise known as Anti-Graft and Corrupt Practices Act and be held administratively liable for Misconduct in office.

Petitioner also prays for such other relief as may be just and equitable under the premises.

08 June , 2015, Manila, Philippines

RESPECTFULLY SUBMITTED.

LOON CORPUZ PATIÑO AND ASSOCIATES(Counsel of the Accused)

G/F GMC Plaza Bldg. Legaspi Extensioncorner M.J Cuenco St, Cebu City, Philippines

Tel No. (032) 254-0453; Cel No. 09178180767

By:

JURIL B. PATIÑORoll of Attorney No. 63966 April 27,2015

PTR OR No. 707854 5-06-15IBP OR No. 0997508 4-27-15 Cebu City ChapterMCLE COMPLIANCE No. Exempt-New Passer

Email add: juril.patino@yahoo.com

Copy furnished :

LUCITA T MADARANGRegional Director Maritime Industry AuthorityLegazpi Maritime Regional Office No. V2nd Floor RCBC Bldg., Rizal St.Legazpi City

Explanation

Copy of this petition was furnished to respondent through registered mail due to distance and lack personnel to do the personal service.

Juril Broka Patiño

Office of the Deputy Ombudsman for LuzonAgham Road, Diliman Quezon City

Explanation

Copy of this petition was furnished to the Office of the Deputy Ombudsman for Luzon through registered mail due to distance and lack personnel to do the personal service.

Juril Broka Patiño

VERIFICATION AND CERTIFICATIONAGAINST FORUM SHOPPING

I, Ricardo J. Alivio, of legal age, married, with residence located at 266 Barangay Sampaloc, San Rafael, Bulacan, Philippines. after being sworn to in accordance with law, do hereby deposes and states :

1. That I am the petitioner in the above-captioned case ;

2. That I have caused the preparation and filing of this petition ;

3. That I have read the contents thereof and that the same true correct to the best of my personal knowledge or based on authentic records ;

4. That I further states :

a. That we have not theretofore commenced any action of any claim involving the same issues in any court, tribunal, or quasi-judicial agency and to the best of my knowledge, no such other action or claim is pending therein ;

b. If there is such other pending action or claim, a complete statement of the present status thereof ; and

c. If we should thereafter learn that the same or similar action or claim has been filed or is pending, we shall report the fact within five (5) days therefrom to the court wherein our aforesaid complaint or initiatory pleading has been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this 8th of June 2015 at Manila, Philippines.

Ricardo J. Alivio Affiant

SUBSCRIBED AND SWORN to before me this ______________in Cebu City, Philippines, by Ricardo J. Alivio, who has satisfactorily proven his identity to me through his____________No.________________ issued at _________________________, issued on _______________ and valid until ________________________ who is the same person who personally signed before me the foregoing Verification and Certification Against Forum Shopping and acknowledge that they executed the same.

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