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Ma. Jessa M.

Alvarez

2003-29275

July 13, 2011

NATIONAL LAND TITLES AND DEEDS REGISTRATION ADMINISTRATION v. CSC | Campos Jr., 1993 FACTS y 1977, Violeta Garcia, a Bachelor of Laws graduate and a first grade civil service eligible was appointed Deputy Register of Deeds VII under permanent status. y Said position was later reclassified to Deputy Register of Deeds III pursuant to PD 1529, petitioner was also appointed under permanent status up to September 1984 y Executive Order No. 649 authorized the restructuring of the Land Registration Commission to National Land Titles and Deeds Registration Administration and regionalized the Offices of the Registers therein. Garcia was issued an appointment as Deputy Register of Deeds II under temporary status, for not being a member of the Philippine Barher temporary appointment as such was renewed in 1985 y October 30, 1986, the then Minister, now Secretary, of Justice notified petitioner Garcia of the termination of her services as Deputy Register of Deeds II on the ground that she was "receiving bribe money". The Memorandum of Termination took effect on February 9, 1987, y -The Merit Systems Protection Board (MSPB) dropped the appeal of petitioner Garcia on the ground that since the termination of her services was due to the expiration of her temporary appointment, her separation is in order y June 30, 1988, the Civil Service Commission directed that private respondent Garcia be restored to her position as Deputy Register of Deeds II or its equivalent in the NALTDRA. It held that "under the vested right theory the new requirement of BAR membership to qualify for permanent appointment as Deputy Register of Deeds II or higher as mandated under E.O. 649, would not apply to her but only to the filling up of vacant lawyer positions on or after February 9, 1981, the date said Executive Order took effect. Since private respondent Garcia had been holding the position of Deputy Register of Deeds II from 1977 to September 1984, she should not be affected by the operation on February 1, 1981 of Executive Order No. 649. y NALTDRA filed the present petition to assail the validity of the Resolution of the Civil Service Commission. It contends that Sections 8 and 10 of Executive Order No. 649 abolished all existing positions in the LRC and transferred their functions to the appropriate new offices created by said Executive Order, which newly created offices required the issuance of new appointments to qualified office holders. Verily, Executive Order No. 649 applies to Garcia, and not being a member of the Bar, she cannot be reinstated to her former position as Deputy Register of Deeds II ISSUES (1) WON E.O. 649 abolished all existing positions in the LRC. (2) WON there was a valid reorganization. (3) WON Garcia may avail of security of tenure. (4) WON the qualification requirement of membership in the bar for the position of Deputy Register of Deeds applies to Garcia. HELD/RATIO (1) YES. The question of whether or not a law abolishes an office is one of legislative intent about which there can be no controversy whatsoever if there is an explicit declaration in the law itself. Executive Order No. 649, in express terms, provided for the abolition of existing positions. Thus, from the moment an implementing order is issued, all positions in the Land Registration Commission are deemed non-existent. y However, abolition of a position does not involve or mean removal because removal implies that the post subsists and that one is merely separated therefrom. After abolition, there is in LAW ON PUBLIC OFFICE AND CIVIL SERVICE

law no occupant. Thus, there can be no tenure to speak of. It is in this sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. (2) YES.The authority to carry out a valid reorganization is under Section 9, Article XVII of the 1973 Constitution, the applicable law at that time: Sec. 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent President... y However, the power to reorganize is not absolute. Reorganizations have been regarded as valid provided they are pursued in good faith. E.O. 649 was enacted to improve the services and better systematize the operation of the Land Registration Commission. A reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. To this end, the requirement of Bar membership to qualify for key positions in the NALTDRA was imposed to meet the changing circumstances and new development of the times. Garcia who formerly held the position of Deputy Register of Deeds II did not have such qualification. It is thus clear that she cannot hold any key position in the NALTDRA, The additional qualification was not intended to remove her from office. Rather, it was a criterion imposed concomitant with a valid reorganization measure. (3) NO.On the "vested right theory" advanced by respondent Civil Service Commission, There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold it. Except constitutional offices, which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. None of the exceptions to this rule are obtaining in this case. (4) YES.The position, which private respondent Garcia would like to occupy anew, was abolished pursuant to Executive Order No. 649, a valid reorganization measure. There is no vested property right to be re employed in a reorganized office. Not being a member of the Bar, the minimum requirement to qualify under the reorganization law for permanent appointment as Deputy Register of Deeds II, she cannot be reinstated to her former position without violating the express mandate of the law. SECRETARY OF DOTC V. MABALOT | Buena, 2002 FACTS y 19 February 1996: then DOTC Secretary Jesus B. Garcia, Jr., issued Memorandum Order No. 96-735 addressed to Land Transportation Franchising Regulatory Board (LTFRB) Chairman Dante Lantin directing him to effect the transfer of regional functions of that office to the DOTCCAR Regional Office, pending the creation of a regular Regional Franchising and Regulatory Office thereat, pursuant to Section 7 of Executive Order No. 202. y 13 March 1996: herein respondent Roberto Mabalot filed a petition for certiorari and prohibition praying that the Memorandum Order No. 96-735 be declared illegal and without effect. y 29 January 1997: Secretary Lagdameo issued the assailed Department Order No. 97-1025, establishing DOTC-CAR Regional Office, created by virtue of Executive Order No. 220 dated July 15, 1987, as the Regional Office of the LTFRB. y Mabalot filed a Supplemental Petition assailing the validity of Department Order No. 97-1025 y 31 March 1999: the lower court rendered a decision declaring Memorandum Order Nos. 96733 and 97-1025 of the respondent DOTC Secretary null and void and without any legal effect as being violative of the provision of the Constitution against encroachment on the powers of the legislative department and also of the provision enjoining appointive officials from holding any other office or employment in the Government.

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

2 y

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 service and for purposes of economy and more effective coordination of the DOTC functions in the Cordillera Administrative Region, thus in good faith. NO. The assailed Orders of the DOTC Secretary do not violate Sections 7 and 8, Article IX-B of the Constitution. Considering that in the case of Memorandum Order No. 96-735, the organic personnel of the DOTC-CAR were, in effect, merely designated to perform the additional duties and functions while performing the functions of their permanent office. Also, an office or employment held in the exercise of the primary functions of one s principal office is an exception to, or not within the contemplation, of the prohibition embodied in Section 7, Article IX-B. No evidence was adduced and presented to clearly establish that the appointive officials and employees of DOTC-CAR shall receive any additional, double or indirect compensation, in violation of Section 8, Article IX-B of the Constitution

Instant petition where this Court is tasked in the main to resolve the issue of validity of the subject administrative issuances by the DOTC Secretary. (3)

ISSUES (1) WON the administrative issuances of the DOTC Secretary are valid. (2) WON the DOTC Sec encroached on the powers of the legislature. (3) WON the administrative issuances are violative of Sections 7 and 8, Article IX-B of the Constitution. HELD/RATIO (1) YES. Memorandum Order No. 96-735 and Department Order No. 97-1025 are legal and valid administrative issuances by the DOTC Secretary. y Section 17, Article VII of the Constitution mandates that The President shall have control of all executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed... y Section 62 of Republic Act 7645 (General Appropriations Act [G.A.A.] for FY 1993) shows that the President is authorized to effect organizational changes including the creation of offices in the department or agency concerned. y The Administrative Code of 1987 also provides legal basis for the Chief Executive s authority to reorganize the National Government. (2) NO, the office was created by authority of law, not by Congress. The President - through his duly constituted political agent and alter ego, the DOTC Secretary in the present case - may legally and validly decree the reorganization of the Department, particularly the establishment of DOTC-CAR as the LTFRB Regional Office at the Cordillera Administrative Region, with the concomitant transfer and performance of public functions and responsibilities appurtenant to a regional office of the LTFRB. y By the Chief Executive s unequivocal act of issuing Administrative Order No. 36 ordering his alter ego - the DOTC Secretary in the present case - to effectuate the creation of Regional Offices in the CAR, it is as if the President himself carried out the creation and establishment of LTFRB-CAR Regional Office, when in fact, the DOTC Secretary, as alter ego of the President, directly and merely sought to implement the Chief Executive s Administrative Order. y The personality of the heads of the various departments is in reality but the projection of that of the President. Thus, their acts, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. y Elementary rule in administrative law and the law on public officers that a public office may be created through any of the following modes: (1) by the Constitution (fundamental law), (2) by law (statute duly enacted by Congress), or (3) by authority of law, thus, Congress can delegate the power to create positions. y The creation and establishment of LTFRB-CAR Regional Office was made pursuant to the third mode - by authority of law, which could be decreed for instance, through an Executive Order (E.O.) issued by the President or an order of an administrative agency such as the Civil Service Commission pursuant to Section 17, Book V of E.O. 292, otherwise known as The Administrative Code of 1987. In this case, the DOTC Secretary issued the assailed Memorandum and Department Orders pursuant to Administrative Order No. 36 of the President y Reorganization is regarded as valid provided it is pursued in good faith. As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. The reorganization in this case was decreed in the interest of the LAW ON PUBLIC OFFICE AND CIVIL SERVICE y

PRECLARO V. SANDIGANBAYAN | Kapunan, 1995 FACTS y 1 October 1989: the Chemical Mineral Division of ITDI, a component of DOST employed Preclaro under a written contract of services as Project Manager to supervise the construction of the ITDI-CMD (JICA) Building at the DOST Compound in Bicutan, Taguig, Metro Manila. The contract was to remain in effect from October 1, 1989 up to the end of the construction period unless sooner terminated. He was to be paid a monthly salary drawn from counterpart funds duly financed by foreign-assisted projects and government funds duly released by the DBM. y November 1989: to build the aforementioned CMD Structure, DOST contracted the services of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso, as the company's project engineer. y Preclaro intimated to Resoso that he can forget about the deductive provided he gets P200,000.00, a chunk of the contractor's profit which he roughly estimated to be around P460,000.00 y Resoso told his boss and an entrapment was planned with the help of the NBI. y 14 June 1990: petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 as amended (Anti-Graft and Corrupt Practices Act) y Petitioner instituted the present petition for review, contending that the SB erred in taking cognizance of the case as he is not a public officer ISSUE WON Preclaro is a public officer. HELD/RATIO: YES. Preclaro asserts that he is not a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as amended), because he was neither elected nor appointed to a public office. Rather, he maintains that he is merely a private individual hired by the ITDI on contractual basis for a particular project and for a specified period and that he was not issued any appointment paper separate from the abovementioned contract. He was also not required to use the Bundy clock to record his hours of work and neither did he take an oath of office. y The definition of "public officer" in R.A. No. 3019 according to Sec. 2(b) thereof "includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government . . ." PROF. GISELLA N. DIZON-REYES

AY 2011-2012

Ma. Jessa M. Alvarez y

2003-29275

July 13, 2011

- The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service 11 by PD 807 providing for the organization of the Civil Service Commission and by the Administrative Code of 1987. Non-career service in particular is characterized by: (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. The Non-Career Service include: (1)...(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency... It is quite evident that petitioner falls under the non-career service category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019). The fact that petitioner is not required to record his working hours by means of a Bundy clock or did not take an oath of office became unessential considerations in view of the provision of law clearly including petitioner within the definition of a public officer.

YES. The four essential elements of the offense are: (1) that the accused is a public officer within the scope of article 203 of the Revised Penal Code; (2) that the accused received by himself or thru another, some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of his commission of some crime or any act not constituting a crime; (4) that the crime or act relates to the exercise of the functions of the public officer. y Petitioner was a public officer within the meaning of RPC article 203, which includes all persons "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." This definition is comprehensive, embracing every public servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates the standard distinction in the law of public officers between "officer" and "employee". y For the purposes of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public official. Although originally appointed as a mere laborer, this defendant was on several occasions designated or given the work to prepare motions for dismissal. He was consequently temporarily discharging such public functions. And as in the performance thereof he accepted, even solicited, a monetary reward, he is certainly guilty as charged. y Moreover, the receipt of bribe money is just as pernicious when committed by temporary employees as when committed by permanent officials. LAUREL V. DESIERTO | Kapunan, 2002

MANIEGO V. PEOPLE | Bengzon, 1951 FACTS y February 27, 1947: Maniego, although appointed as a laborer, had been placed in charge of issuing summons and subpoenas for traffic violations in the Sala of Judge Crisanto Aragon of the Municipal Court of the City of Manila. He had been permitted to write motions for dismissal of prescribed traffic cases against offenders without counsel, and to submit them to the Court for action, without passing through the regular clerk. y Felix Raba, the complainant, appeared and inquired from the accused about a subpoena that he received. He was informed that it was in connection with a traffic violation for which said Rabia had been detained and given traffic summons by an American MP. y Maniego after a short conversation went to Fiscal De la Merced and informed the Fiscal that the case had already prescribed. The Fiscal having found such to be the case, instructed the accused that if the traffic violator had no lawyer, he could write the motion for dismissal and have it signed by the party concerned. This was done by the accused and after the signing by Felix Raba the matter was submitted to the Court, which granted the petition for dismissal. y Maniego informed Rabia that he could fix the case if Rabia would pay him P10; which Rabia did and the accused pocketed. y Maniego was convicted, by the Fifth Division of the Court of Appeals, of a violation of article 210 of the Revised Penal Code. He pleads for acquittal contending that the Court of Appeals erred in regarding him as a public officer ISSUE WON Maniego was a public officer. HELD/RATIO LAW ON PUBLIC OFFICE AND CIVIL SERVICE FACTS y June 13, 1991: President Corazon C. Aquino issued Administrative Order No. 223 constituting a Committee for the preparation of the National Centennial Celebration in 1998. y President Fidel V. Ramos issued Executive Order No. 128, reconstituting the Committee for the preparation of the National Centennial Celebrations in 1998. It renamed the Committee as the National Centennial Commission. Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel. y Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created. Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer y August 5, 1998: Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone. Investigation was referred to the Committee on Accountability of Public Officers and Investigation (The Blue Ribbon Committee). y February 24, 1999: President Joseph Estrada issued Administrative Order No. 35, creating an ad hoc and independent citizens committee to investigate all the facts and circumstances surrounding the Philippine centennial projects, including its component activities. Former Senator Rene A.V. Saguisag was appointed to chair the Committee y Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the Committee s recommendations was the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for participating in the PROF. GISELLA N. DIZON-REYES

AY 2011-2012

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer YES. The NCC performs executive functions. The executive power is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance. The executive function, therefore, concerns the implementation of the policies as set forth by law (Constitution Article XIV Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation s historical and cultural heritage and resources, as well as artistic creations; preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998: ...vehicle for fostering nationhood and a strong sense of Filipino identity...showcase Filipino heritage and thereby strengthen Filipino values,...). It bears noting the President, upon whom the executive power is vested, created the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2: Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders... Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. The term office embraces the idea of tenure and duration but the element of continuance can not be considered as indispensable, for, if the other elements are present there is no difference whether there be but one act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behaviour. It is also contended that since petitioner supposedly did not receive any compensation for his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman. Public officer, under R.A. No. 3019, is defined by Section 2: SEC. 2. Definition of terms. As used in this Act, the term x xx(b) Public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government as defined in the preceding paragraph. It is clear from above, that the definition of a public officer is expressly limited to the application of R.A. No. 3019. Said definition does not apply for purposes of determining the Ombudsman s jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. The Anti-Graft and Corrupt Practices Act is just one of several laws that define public officers. Article 203 of the Revised Penal Code, for example, provides that a public officer is x xx any person who, by direct provision of law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of Philippines,

scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation of the anti-graft law. Saguisag Committee issued its own report. It recommended the further investigation by the Ombudsman, and indictment, in proper cases of, among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code. Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report, recommending that a formal complaint be filed and preliminary investigation be conducted before the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and Regulations April 24, 2000: petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of said office. Ombudsman denied petitioner s motion to dismiss, thus the present petition for certiorari. November 14, 2000: the Evaluation and Preliminary Investigation Bureau issued a resolution finding probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Pea. Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because: EXPOCORP was a private corporation, not s GOCC, NCC was not a public office, and petitioner, both as Chairman of the NCC and EXPOCORP was not a public officer as defined under the ANTI-GRAFT & CORRUPT PRACTICES ACT.

(2)

y y

y ISSUES (1) WON the Ombudsman had jurisdiction. (2) WON NCC performs sovereign functions, making it a public office and its Chairman a public officer. RATIO: (1) YES. The Ombudsman has the power to investigate any malfeasance, misfeasance and nonfeasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. y The definition of public officers cited in jurisprudence is that provided by Mechem, a recognized authority on the subject: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. y The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, and continuance of the position, scope of duties, and the designation of the position as an office. y Mechem describes the delegation to the individual of some of the sovereign functions of government as [t] he most important characteristic in determining whether a position is a public office or not. y The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual LAW ON PUBLIC OFFICE AND CIVIL SERVICE

y y

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez

2003-29275 y

July 13, 2011

or performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class. Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987on the other hand, states: Officer as distinguished from clerk or employee , refers to a person whose duties not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular person in the exercise of governmental power, officer includes any government employee, agent or body having authority to do the act or exercise that function. Under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a public official whether or not one receives compensation: Public Officials include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service including military and police personnel, whether or not they receive compensation, regardless of amount.

y y

FERNANDEZ V. STO. TOMAS | Feliciano, 1995 FACTS y Petitioners Salvador C. Fernandez and Anicia M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service Commission ("Commission") and the authority of the Commission to issue the same. y Fernandez was serving as Director of the Office of Personnel Inspection and Audit ("OPIA") while petitioner de Lima was serving as Director of the Office of the Personnel Relations ("OPR"), both at the Central Office of the Civil Service Commission in Quezon City, Metropolitan Manila y Resolution No. 94-3710, signed by public respondents Patricia A. Sto. Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively, of the Commission, was issued on 7 June 1994, stating: ". . . as an independent constitutional body, the Commission may effect changes in the organization as the need arises... y Chairman Sto. Tomas, when apprised of objections of petitioners, expressed the determination of the Commission to implement Resolution No. 94-3710 unless restrained by higher authority y Petitioners then instituted this Petition ISSUE (1) WON the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the extent it merged the OCSS [Office of Career Systems and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research and Development Office]. (2) WON Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure. RATIO: (1) YES. The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July 1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure and organization of the Commission. Sec. 16 enumerates the Offices in the Commission. Sec. 17 describes the Organizational Structure--...As an independent constitutional body, the Commission may effect changes in the organization as the need arises.

(2)

The OCSS, OPIA and OPR, and as well each of the other Offices listed in Section 16 consist of aggrupation of Divisions, each of which Divisions is in turn a grouping of Sections. Each Section, Division and Office comprises a group of positions within the agency called the Civil Service Commission. Thus, each Office is an internal department or organizational unit within the Commission and that accordingly, the OCSS, OPIA and OPR, as well as all the other Offices within the Commission constitute administrative subdivisions of the CSC. What Resolution No. 94-3710 did was to re-arrange some of the administrative units within the Commission and, among other things, merge three (3) of them (OCSS, OPIA and OPR) to form a new grouping called the "Research and Development Office (RDO)." It also re-allocated certain functions moving some functions from one Office to another The objectives sought by the Resolution: effect[ing] changes in the organization to streamline [the Commission's] operations and improve delivery of service." The changes introduced and formalized through Resolution No. 94-3710 are precisely the kind of internal changes which are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised Administrative Code) as "changes in the organization" of the Commission. Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices, something that may be done only by the same legislative authority, which had created those public offices in the first place. However, the term "public office" is frequently used to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public. NO. Resolution No. 94-3710 has not abolished any public office as that term is used in the law of public officers. It is essential to note that none of the "changes in organization" introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of the relationship of public employment between the Commission and any of its officers and employees. The 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of the Civil Service Commission, did not mean to freeze those Offices and to cast in concrete, as it were, the internal organization of the Commission until it might please Congress to change such internal organization regardless of the ever changing needs of the Civil Service as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry out "changes in the organization," "as the need [for such changes] arises." To the second claim of petitioners that their right to security of tenure was breached by the respondent's in promulgating Resolution No. 94-3710 and ordering petitioners' assignment to the Commission's Regional Offices in Regions III and V, firstly, the appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. The petitioners were each appointed to the position of Director IV, without specification of any particular office or station. Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a management prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil service (Reassignment= An employee may be re-assigned from one organizational unit to another in the same agency; Provided, That such re-assignment shall not involve a reduction in rank, status and salary.") The reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA and OPR, respectively, to the Research and Development Office (RDO) in the Central Office of the Commission in Metropolitan Manila and their subsequent assignment from the RDO to the Commission's Regional Offices in Regions V and III had been effected with express statutory authority and did not constitute removals without lawful cause. It also follows that PROF. GISELLA N. DIZON-REYES

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 of the Administrative Code which section 1 of Act No. 3107 amended by adding at the end thereof the following proviso: "Provided, That justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years." But section 206 of the Administrative Code entitled "Tenure of office," and reading "a justice of the peace having the requisite legal qualifications shall hold office during good behavior unless his office be lawfully abolished or merged in the jurisdiction of some other justice," was left unchanged by Act No. 3107 A sound canon of statutory construction is that a statute operates prospectively only and never retroactively, unless the legislative intent to the contrary is made manifest either by the express terms of the statute or by necessary implication. No court will hold a statute to be retroactive when the legislature has not said so. As our Civil Code has it in Article 3, "Law shall not have a retroactive effect unless therein otherwise provided." The same rule is followed by the courts with reference to public offices. "Though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated." The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no indication of retroactive effect. The law signifies no purpose of operating upon existing rights. A proviso was merely tacked on to section 203 of the Administrative Code, while leaving intact section 206 of the same Code which permits justices of the peace to hold office during good behavior. In the absence of provisions expressly making the law applicable to justices of the peace then in office, and in the absence of provisions impliedly indicative of such legislative intent, the courts would not be justified in giving the law an interpretation which would legislate faithful public servants out of office.

such re-assignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations, which they had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had not, in other words, acquired a vested right to serve at the Commission's Head Office. The rule which proscribes transfers without consent as anathema to the security of tenure is predicated upon the theory that the officer involved is appointed - not merely assigned - to a particular station. In default of any particular station stated in their respective appointments, no security of tenure can be asserted by the petitioners on the basis of the mere assignments, which were given to them. A contrary rule will erase altogether the demarcation line we have repeatedly drawn between appointment and assignment as two distinct concepts in the law of public officers. The reassignment of petitioners Fernandez and de Lima from their stations in the OPIA and OPR, respectively, to the Research Development Office (RDO) and from the RDO to the Commissions' Regional Offices in Regions V and III, respectively, without their consent, did not constitute a violation of their constitutional right to security of tenure

SEGOVIA V. NOEL | Malcolm, 1925 FACTS y Vicente Segovia was appointed justice of the peace of Dumanjug, Cebu, on January 21, 1907. He continuously occupied this position until having passed sixty-five. He was ordered by the Secretary of Justice on July 1, 1924, to vacate the office. Since that date, Pedro Noel, the auxiliary justice of the peace has acted as justice of the peace for the municipality of Dumanjug. y Segovia instituted friendly quo warranto proceedings in the Court of First Instance of Cebu to inquire into the right of Pedro Noel to occupy the office of justice of the peace, to oust the latter therefrom, and to procure reinstatement as justice of the peace of Dumanjug. y Judgment was rendered in favor of petitioner and against respondent. y Petitioner contends that the trial judge erred in declaring that the limitation regarding the age of justices of the peace provided by section 1 of Act No. 3107 is not applicable to justices of the peace and auxiliary justices of the peace appointed and acting before said law went into effect ISSUE Whether that portion of Act No. 3107 which provides, that justices of the peace and auxiliary justices of the peace shall be appointed to serve until they have reach the age of sixty-five years, should be given retroactive or prospective effect. HELD/RATIO PROSPECTIVE EFFECT. Fundamental principle: a public office cannot be regarded as the property of the incumbent, and that a public office is not a contract. y Act No. 1450, in force then Vicente Segovia was originally appointed justice of the peace, amended section 67 of the Judiciary Law by making the term of office of justices and auxiliary justices of the peace two years from the first Monday in January nearest the date of appointment. Shortly after Segovia's appointment, however, the law was again amended by Act. No. 1627 by providing that "all justices of the peace and auxiliary justices of the peace shall hold office during good behavior and those now in office shall so continue." Later amended by Acts Nos. 2041 and 2617, the law was ultimately codified in sections 203 and 206 LAW ON PUBLIC OFFICE AND CIVIL SERVICE

DARIO V. MISON | Sarmiento, 1989 FACTS y On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE... , the mandate of the people to Completely reorganize the government: y On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government reorganization had generated... y January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF FINANCE". Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs and prescribed a new staffing pattern therefor. y February 2, 1987, 11 the Filipino people adopted the new Constitution y January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive Orders," prescribing the procedure in personnel placement. It also provided that by February 28, 1988, all employees covered by Executive Order 127 and the grace period extended to the Bureau of Customs by the President of the Philippines on reorganization shall be: a) informed of their re-appointment, or b) offered another position in the same department or agency, or c) informed of their termination. y On January 26, 1988, Commissioner Mison addressed several notices to various Customs officials stating that they shall continue to perform their respective duties and responsibilities PROF. GISELLA N. DIZON-REYES

AY 2011-2012

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011

y y y

in a hold-over capacity, and that those incumbents whose positions are not carried in the new reorganization pattern, or who are not re-appointed, shall be deemed separated from the service. A total of 394 officials and employees of the Bureau of Customs were given individual notices of separation. On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the reinstatement of the 279 employees, the 279 private respondents in G.R. No. 85310 Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration, which was denied. Commissioner Mison instituted certiorari proceedings. On November 16, 1988, the Civil Service Commission further disposed the appeal (from the resolution of the Reorganization Appeals Board) of five more employees. Commissioner Mison challenged the Civil Service Commission's Resolution. On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," was signed into law: Sec. 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other benefits... On June 23, 1988, BenedictoAmasa and William Dionisio, customs examiners appointed by Commissioner Mison pursuant to the ostensible reorganization subject of this controversy, petitioned the Court to contest the validity of the statute. On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had ordered reinstated by its June 30, 1988 Resolution filed their own petition to compel the Commissioner of Customs to comply with the said Resolution.

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public officials without cause ended on February 25, 1987, and that thereafter, public officials enjoyed security of tenure under the provisions of the 1987 Constitution - Like Dario, Vicente Feria asserts his security of tenure and that he cannot be said to be covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 during the effectivity of the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," the Commissioner of Customs has the power "to appoint all Bureau personnel, except those appointed by the President," and that his position, which is that of a Presidential appointee, is beyond the control of Commissioner Mison for purposes of reorganization. Case for Commissioner Mison: Provisions of Section 16, Article XVIII (Transitory Provisions) explicitly authorize the removal of career civil service employees "not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution. For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense. That contrary to the employees' argument, Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and Feria), in the sense that retention in the Bureau, under the Executive Order, depends on either retention of the position in the new staffing pattern or reappointment of the incumbent, and since the dismissed employees had not been reappointed, they had been considered legally separated. Moreover, Mison proffers that under Section 59 incumbents are considered on holdover status, "which means that all those positions were considered vacant." The Commissioner's twin petitions are direct challenges to three rulings of the Civil Service Commission: (1) the Resolution, dated June 30, 1988, reinstating the 265 customs employees above-stated; (2) the Resolution, dated September 20, 1988, denying reconsideration; and (3) the Resolution, dated November 16, 1988, reinstating five employees

Case for the Employees: y Cesar Dario was one of the Deputy Commissioners of the Bureau of Customs until his relief on orders of Commissioner Mison on January 26, 1988. In essence, he questions the legality of his dismissal, which he alleges was upon the authority of Section 59 of Executive Order No. 127 (SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution. Incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service. Those separated from the service shall receive the retirement benefits to which they may be entitled) y A provision he claims the Commissioner could not have legally invoked. He avers that he could not have been legally deemed to be an "incumbent whose position is not included therein or who is not reappointed to justify his separation from the service. He contends that neither the Executive Order (under the second paragraph of the section) nor the staffing pattern proposed by the Secretary of Finance abolished the office of Deputy Commissioner of Customs, but, rather, increased it to three. Nor can it be said, so he further maintains, that he had not been "reappointed" (under the second paragraph of the section) because "reappointment therein presupposes that the position to which it refers is a new one in lieu of that which has been abolished or although an existing one, has absorbed that which has been abolished." He claims, finally, that under the Provisional Constitution, the power to dismiss LAW ON PUBLIC OFFICE AND CIVIL SERVICE

ISSUE WONSection 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the Government to remove career public officials it could have validly done under an "automatic"vacancy-authority and to remove them without rhyme or reason. HELD/RATIO NO. Section 16 Article XVIII, of the 1987 Constitution: Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy The above provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution: Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure. y As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment's notice. If the present PROF. GISELLA N. DIZON-REYES

AY 2011-2012

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 Main Points: 1. The President could have validly removed government employees, elected or appointed, without cause but only before the effectivity of the 1987 Constitution on February 2, 1987. Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination. 2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given reemployment opportunities 3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of career civil service employees provided, that such a reorganization is made in good faith. MATHAY V. CA | Ynares-Santiago, 1999 FACTS y During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 y On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. Tuvera the presidential decree is deemed never "in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . y On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions y The effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety ( DPOS ). y Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, AntiSquatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. y Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. y Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. y On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. y After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990, and ordering their reinstatement to their former positions in the DPOS.

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Charter envisioned an "automatic" vacancy, it should have said so in clearer terms. Plainly the concern of Section 16 is to ensure compensation for "victims" of constitutional revamps whether under the Freedom or existing Constitution - and only secondarily and impliedly, to allow reorganization. In order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit: 1. The separation must not be for cause, and 2. The separation must be due to any of the three situations mentioned. -By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. It can only mean, then, that whatever reorganization is taking place is upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it cannot be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganization under the Freedom Constitution - the first stage. We are on the second stage - that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document. After February 2, 1987, incumbent officials and employees have acquired security of tenure. The present organic act requires that removals "not for cause" must be as a result of reorganization. As we observed, the Constitution does not provide for "automatic" vacancies. It must also pass the test of good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. The Court finds that Commissioner Mison did not act in good faith since after February 2, 1987 no perceptible restructuring of the Customs hierarchy - except for the change of personnel - has occurred, which would have justified (all things being equal) the contested dismissals. There is also no showing that legitimate structural changes have been made - or a reorganization actually undertaken, for that matter - at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "Those incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He submits that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the Commissioner's appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau personnels except those appointed by the President." Thus, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validly terminated them, they being Presidential appointees. That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that the positions held by them had become vacant. The occupancy of a position in a holdover capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to February 2, 1987 when the 1987 Constitution became effective. After the said date the provisions of the latter on security of tenure govern

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez y y

2003-29275

July 13, 2011

Petitioner brought petitions for certiorari which was referred to the Court of Appeals. As stated, the Court of Appeals dismissed. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS

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ISSUE WON CSC has the authority to direct Mathay to reinstate private respondents to DPOS. HELD/RATIO NO. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992, which became effective only on January 1, 1992, when the material events in this case transpired y Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. y The Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. y The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337, which lists the powers of the sanggunian. The power to appoint is not one of them. Expressiouniusestexclusioalterius. Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms y By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power y The Civil Service Commission s power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. y When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment. This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. y Appointment is essentially a discretionary power and must be performed by the officer in which it is vested. y Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner correctly points out, the private respondents appointments in the defunct CSU were invalid ab initio. Their LAW ON PUBLIC OFFICE AND CIVIL SERVICE

seniority rights and permanent status did not arise since they have no valid appointment. For them to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil Service Commission. "Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. At the most, private respondents held temporary and contractual appointments. The nonrenewal of these appointments cannot therefore be taken against petitioner. The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto.

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

10

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 mayor. Evangelista appealed the decision to the COMELEC. Malaluan filed a motion for execution pending appeal which was grabned by the RTC. Thus, Malaluan assumed the office of municipal mayor. 1st Division COMELEC ordered Malaluan to vacate the office having found that Evangelista was the duly elected mayor. COMELEC en banc affirmed. Malaluan filed this petition. note: term expired June 30,1995. Petition has become moot. However, question as to damages is ripe for adjudication. Claimed as part of the damages to which Evangelista is allegedly entitled to is the salary that would have accrued to him had there been no execution of the RTC s decision pending appeal.

DIMAANDAL V. COA | Martinez, 1998 FACTS y Nov. 28, 1992, ZosimoDimaandal, then holding the position of Supply Officer III was designated as Acting Assistant Provincial Treasurer by then Gov. Vicente Mayo of Batangas. y Dimaandal filed a claim for the difference in salary and Representation and Transpo Allowance (RATA) of AsstsProv l treas. And Supply Ofcr, III (P61,308.00). y Provincial Auditor allowed only P8,400.00 which corresponds to the difference in the allowance attached to the designation and the position occupied since the designation is temporary in nature and does not amount to an appointment as would entitle Dimaandal to receive the salary of the position. y Dimaandal appealed to COA, which sustained the stand of the Prov l Auditor since he was merely designated as Asst. Prov l Treas. in addition to his regular duties. COA further opined that he is not entitled to receive the difference (P8,400) since the party designating him to the position is not the duly competent authority. y Dimaandal cites Menzon v. Petilla: de facto officers are entitled to salary for services actually rendered . ISSUE WON Dimaandal is a de facto officer entitled to salary for services. HELD/RATIO NO. The governor did not have the authority to appoint nor designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power resides in the President (Sec.2077, Rev. Admin. Code) or the secretary of Finance (Sec. 471, Loc. Gov. Code). y Dimaandal s designation by Gov. Mayo is defective and confers no right to claim the differences in salary. Moreover, Dimaandal s designation and the gov s absence of authority to authorize payment of addt l salary and RATA does not make him a de facto officer. y Further, the case of Menzon is not applicable in this case since in that case, what was extended was an appointment to the vacant position of vice-gov. Here, what was extended was a mere designation. y Appointment= selection by the proper authority of an individual who is to exercise the powers and functions of a given office y Designation= merely connotes an imposition of additional duties, does not entail payment of additional benefits nor the right to claim the salary attached to the position. y De Facto Officer= one who derives his appointment from one having colourable authority to appoint and whose appointment is valid on its face; one who is in possession of an office and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal; one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular. MALALUAN V. COMELEC | Hermosisima, 1996 FACTS y Luis Malaluan and Jose Evangelista were both mayoralty candidates on the municipality of Kidapawan, North Cotabato. y Evangelista was proclaimed by the Municipal Board off Canvassers as duly elected mayor. Malaluan filed an election protest with the RTC. RTC declared Malaluan as the duly elected LAW ON PUBLIC OFFICE AND CIVIL SERVICE

y y y y

ISSUE WON Malaluan is a usurper and should pay the damages and salaries to Evangelista. HELD/RATIO NO. Malaluan is not a usurper because a usurper is one who undertakes to act officially w/o and color of right, while Malaluan exercised the duties of an elective office under color of election thereto. y Malaluan is a de facto officer who in good faith has had possession of the office and had discharged the duties pertaining thereto and is therefore legally entitled to the emoluments of the office. y The long-standing rule is that notwithstanding subsequent ouster as a result of an election protest, an elective official who has been proclaimed by the COMELEC as winner and who assumed office and entered into the performance of the duties of that office is entitled to the compensation legally provided for the position. This is in keeping with the ordinary course of events. The emolument must go to the person who rendered the service unless the contrary is proved. y criterion for a justifiable award of election protest expenses ans salaries remains to be the existence of a pertinent breach of obligations arising from k, quasi-k, tortious acts, crimes, or a specific legal provision authorizing the money claim. y the 1st Division COMELEC reasoned that Evangelista was the one elected, he was ousted not by final judgment but by an order of execution pending appeal which was groundless; that Malaluan occupied the position in an illegal manner as a usurper and that he had no right to the salaries of the office. However, there is no pertinent breach of obligations arising from k, quasi-k, tortious acts, crimes that can be attributed to Malaluan nor did Evangelista point out a specific legal provision authorizing the money claim. y that Malaluan was proclaimed winner by the RTC and not by COMELEC is of no moment since it is a well-settled rule that as much recognition should be given to the value of the decision of a judicial body as a basis for the right to assume office as that given by law to the proclamation made by the Board of Canvassers. y the damage may be said to be damnumabsqueinjuria= damage inflicted without injustice or without violation of a legal right for which the law provides no remedy. FLORES V. DRILON | Bellosillo, 1993 FACTS

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez y

2003-29275 y

July 13, 2011

11

Petitioners challenge the constitutionality of RA 7227: Bases Conversion and Development Act of 1992 under which Mayor Richard Gordon of Olongapo City was appointed as Chairman and Chief Executive of SBMA. sec. 13 par. (d) contains a proviso saying that for the 1st year of its effectivity, the mayor of Olongapo shall be appointed as chair and chief exec of SBMA. Petitioners claim this to be violative of a) sec. 7 Art. IX-B Consti (no elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure) since mayor of Olongapo is an elective office, b) sec 16 Art VII Consti (that the Pres shall appoint all other ofcrs of govt whose appointments are not provided by law) since Congress through the proviso appointed Gordon.

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division superintendent of schools & district engr were out of town so in the meantime, Tizon, asst. Civil engr and Pascual, chief clerk in the division superintendent of schools substituted. they canvassed the votes and proclaimed Ribo as gov-elect. prov l board of canvassers had a 2nd meeting this time w/ the division superintendent of schools & district engr. They made a new canvass of votes and proclaimed Ribo as governor.

ISSUE WON Tizon and Pascual were lawful members of the provincial board of canvassers. HELD/RATIO NO. Sec.158 of the Rev. Election Code designates teh officers who are to comprise the provincial board of canvassers and sec.159 enumerates the officers to be appointed substitute members. The express enumeration excludes all other officers. Moreover, an officer to whom a discretion is entrusted cannot delegate it to another. y moreover, Tizon and Pascual were not de facto officers as maintained by Ribo. An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. He must have acted as an officer for such a length of time, under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, w/o inquiry, amd relying on the supposition that he is the officer he assumes to be. y Tizon and Pascual did not posses any of these conditions. They acted w/o appointment, sommission, or any color of title to the office. There was no acquiescence public or private. y thus, there were only 3 lawful members sitting on the board of canvassers. Under sec.159 of rev. Election code, the provincial board of canvassers must be composed of 6 members. 3 members is not enough compliance with the law. There must at least be a quorum = 4. The meeting of the provincial board of canvassers and the proclamation in that meeting were illegal and of no effect. TUANDA V. SANDIGANBAYAN | Kapunan, 1995 FACTS y On 9 February 1989, private respondents Delia Estrellanes and BartolomeBinaohan were designated as industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. They took their oath of office. y On 4 May 1990, private respondents filed a petition for mandamus to recognize them as members on the Sangguniang Bayan. It was dismissed y Thereafter, petitioners filed action with the Regional Trial Court to declare null and void the designations of private respondents as sectoral representatives, y An information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 charging petitioners y by refusing to pay despite demand the amount of P95,350.00 y and P 108,900.00 representing respectively their per diems, salaries and other privileges and benefits, and such undue injury continuing to the present to the prejudice and damage of BartolomeBinaohan and Delia Estrellanes. y petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal Case PROF. GISELLA N. DIZON-REYES

ISSUE WON the appointment is unconstitutional. HELD/RATIO YES. The proviso directs the president to appoint an elective e official as chair of SBMA which is exactly what the consti proscription seeks to prevent y sec.94 LGC permits the appointment of an elective official to another post if so allowed by law or by primary functions of his office. However, no legislative act can prevail over the fundamental law of the land. y it is argued that the SBMA posts are ex officio to the position of the mayor of Olongapo and is thus an exception to the proscription. The argument is based on a wrong premise since Congress did not contemplate the SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo w/o need of appointment. The phrase shall be appointed shows the intent to make the SBMA posts appointive. y the proviso is a legislative encroachment on the power of the president to appoint as it already specified the person who is to occupy the position and the president has no choice under the law but to appoint the mayor of olongapo. y being an elective official, Gordon is not eligible for appointment to the position of SBMA chair. His appointment pursuant to a le3gislation contravening the consti cannot be sustained. However, he remains to be the mayor of Olongapo and his acts as SBMA Chair are not necessarily void since he may be deemed as a de facto officer= one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and 3rd persons, where the duties of the office were exercised under color of a known election or appointment , void because the officer was not eligible, or because there was a want of power in the appointing body, or by reason of some defect or irregularity in its exercise, or under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such. y in accordance w/ the ruling in CLU emoluments received by Gordon pursuant to his appointment may be retained by him. TORRES V. RIBO | Tuason, 1948 FACTS y Torres, Ribo andBalderian were candidates for provincial governor of Leyte. y Ribonad 2 mems of the prov l board were candidates and disqualified to form parts of the prov l board of canvassers. y COMELEC appointed the division superintendent of schools, district engr and the district health ofcr to replace the disqualified members. LAW ON PUBLIC OFFICE AND CIVIL SERVICE

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July 13, 2011 MONROY V. CA | Bengzon, 1967 FACTS y Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, he filed his certificate of candidacy as representative of the first district of Rizal in the forthcoming elections with the COMELEC. Three days later petitioner filed a letter withdrawing said certificate of candidacy. COMELEC approved the withdrawal y respondent Felipe del Rosario, then the vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon his filing of the certificate of candidacy y in a suit for injunction instituted by petitioner against respondents Court of First Instance held that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September 15, 1961; (b) respondent del Rosario became municipal mayor upon his having assumed office as such on September 21, 1961; (c) petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961 up to the time he can reassume said office. y on appeal by petitioner to the Court of Appeals, CA affirmed y Hence, this petition for certiorari. ISSUE WON Monroy was a de facto officer entitled to mayoralty salaries from the time he withdrew his candidacy. HELD/RATIO NO. Sec. 27 of the Rev. Election Code providing that Any elective provincial, municipal, or city official running for an office, other than the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy. y The forfeiture is automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official. y The withdrawal of a certificate of candidacy does not necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced thereby remain even if the certificate itself be subsequently withdrawn. y Petitioner maintains that respondent Court of Appeals erred in affirming a lower court judgment requiring petitioner to pay respondent Del Rosario by way of actual damages the salaries he was allegedly entitled to receive from September 21, 1961, to the date of petitioner's vacation of his office as mayor. In support of this he relies solely upon Rodriguez v. Tan y holding that a senator who had been proclaimed and had assumed office but was later on ousted in an election protest, is a de facto officer during the time he held the office of senator, and can retain the emoluments received even as against the successful protestant y Petitioner's factual premise is the appellate court's finding that he was a de facto officer when he continued occupying the office of mayor after September 15, 1961. y Rodriguez case is not applicable here for absence of factual and legal similarities. The Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the office and was subsequently ousted as a result of an election contest

y y

on the ground that a prejudicial question exists in Civil Case pending before the Regional Trial Court. Regional Trial Court rendered a decision declaring, null and void ab initio the designations issued by the Department of Local Government to the private respondents as sectoral representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337. otherwise known as the Local Government Code.: there must be a determination to be made by the Sangguniang itself that the said sectors are of sufficient number in the city or municipality to warrant representation... in cases where the Sanggunian concerned has not yet determined that the Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient number to warrant representation, there will absolutely be no basis for the designation/appointments. Since in the present case, there was total absence of the required prior determination by the Sangguniang Bayan of Jimalalud, the designations of private defendants as sectoral representatives null and void. Private respondents appealed to the Court of Appeals Meanwhile, Sandiganbayan issued a resolution denying the motion for suspension of proceedings filed by petitioners. It appears, nevertheless, that the private complainants have been rendering services on the basis of their respective appointments as sectoral members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental, and that their said appointments enjoy the presumption of regularity. Having rendered such services, the private complainants are entitled to the salaries attached to their office. Even assuming that the said Regional Trial Court shall later decide that the said appointments of the private complainants are null and void, still the private complainants are entitled to their salaries and compensation for service they have actually rendered, for the reason that before such judicial declaration of nullity, the private complainants are considered at least de facto public officers acting as such on the basis of apparently valid appointments issued by competent authorities . Petitioners filed a motion for reconsideration which was denied. Hence, this special civil action for certiorari and prohibition.

ISSUE WON private respondents are entitled to compensation for actual services rendered. HELD/RATIO: NO. Private respondents insist that even if their designations are nullified, they are entitled to compensation for actual services rendered. However, as found by the trial court and as borne out by the records, from the start, private respondents designations as sectoral representatives have been challenged by petitioners. The private respondents' claim that they have actually rendered services as sectoral representatives has not been established. y Sandiganbayan 's thesis that even in the event that private respondents' designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually rendered is unmeritorious. y The conditions and elements of de facto officership are the following: 1) There must be a de jure office; 2) There must be color of right or general acquiescence by the public; and 3) There must be actual physical possession of the office in good faith. y One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office although there may be a de facto officer in a de jure office.

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Ma. Jessa M. Alvarez y

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But the case at bar does not involve a proclaimed elective official who will be ousted because of an election contest. The present case for injunction and quo warranto involves the forfeiture of the office of municipal mayor by the incumbent occupant thereof and the claim to that office by the vice mayor because of the operation of Sec. 27 of the Rev. Election Code. It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title" that applies in the present case. the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office

GEN. MANAGER, PPA V. MONSERATE | Salvador-Guttierez, 2002 FACTS y PPA underwent reorganization. Monserate applied for a permanent position of Manager II of Resource Management Division and she was appointed such among 6 other contestants. However, upon the protest of the 2nd placer (Anino), Julia s appointment was rendered ineffective without any explanation. She was not even notified of any hearing for the said replacement. She was reappointed to a lower position (Administrative Officer) with lower salary grade (SG 15) than what she was already receiving. y Respondent filed a motion for reconsideration but the same was denied by the CSC y respondent filed with the Court of Appeals a petition for review y the Court of Appeals rendered a Decision[16] nullifying the twin Resolutions of the CSC. y It concluded that her reassignment from the position of Manager II, Resource Management Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of her constitutional right to security of tenure and due process. y Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition ISSUE (1) WON there was due process when respondent was replaced by petitioner Anino from her position as Manager II, Resource Management Division, and demoted as Administrative Officer (2) WON respondent is entitled to backpay differentials. HELD/RATIO (1) NO. The grounds for respondent s demotion are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the reason for her demotion. The PPA Appeals Board Resolution was void for lack of evidence and proper notice to respondent. y Her demotion, tantamount to a revocation of her appointment as Manager II, is a patent violation of her constitutional rights to security of tenure and due process. Once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right to the position which is protected not only by statute, but also by the constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.

when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to the said position to which her right to security of tenure had already attached. To be sure, her position as Manager II never became vacant since her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is null and void ab initio. (2) YES. Backwages are in favor of respondent. While petitioner Anino s appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency. A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular. y In Monroy vs. Court of Appeals, Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer. y In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. y This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.

CIVIL LIBERTIES UNION (CLU) V. EXECUTIVE SECRETARY | Fernan, 1991 FACTS y Petitioner challenged EO 284 issued by Pres. Aquino, which in effect allowed Cabinet members, their undersecretaries and assistant secretaries and other appointive officials of the Executive Dept. to hold other positions (not more than two apart from their primary positions) in the government albeit subject to limitations imposed therein. y The respondents in refuting the petitioners argument that the measure was violative of Article VIII Section 13 of the Constitution, invoked Article IX-B Section 7,allowing the holding of multiple positions by the appointive official if allowed by law or by pressing functions of his position . ISSUE WON EO 284 is unconstitutional.

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Ma. Jessa M. Alvarez

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July 13, 2011 officer de facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. MENZON V. PETILLA | Guttierez, 1991 FACTS y On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the ViceGovernor, Leopoldo E. Petilla as Acting Governor of Leyte y On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the SangguniangPanlalawigan was also designated by Secretary Luis Santos to act as the ViceGovernor for the province of Leyte. y On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. y Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice-Governor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. y SangguniangPanlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. y there is no permanent (sic) nor a vacancy in said office. y petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. ZosimoAlegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. y that "there is no succession provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a temporary vice-governor is not necessary. y In view of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government, Region 8, ResurreccionSalvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E Petilla, requesting the latter that Resolution No. 505 of the SangguniangPanlalawigan be modified accordingly y Despite these several letters of request, the Acting Governor and the SangguniangPanlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. y Thus, on November 12, 1989, the petitioner a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. -During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor. y On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon. y On September 6, 1990, respondent LeopoldoPetilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the Vice-Governor of Leyte. y On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such. PROF. GISELLA N. DIZON-REYES

HELD/RATIO YES. EO 284 is UNCONSTITUTIONAL. It allows cabinetmembers, undersecretaries or assistant secretaries to holdmultiple offices in direct contravention of the express mandate of Section 13, Article VII of the Constitution. Court is alerted by the respondents to the impractical consequence that strictconstruction of said provision will bring considering that Cabinet members would be stripped of their offices held in an ex-officio capacity but SC clarifies that ex-officio posts or those required by the primary functions of the executive official do not fall within the definition of any other office indicated in the constitutional prohibition. Article VIII, Section 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. y Exceptions to prohibition on executive officers from holding the additional positions a. VP as member of the Cabinet Article VII, Section 3. There shall be a Vice-Presidentwho shall have the same qualifications and term ofoffice and be elected with, and in the same manner, asthe President. He may be removed from office in thesame manner as the President.The Vice-President may be appointed as aMember of the Cabinet. Such appointment requires noconfirmation. Note: It is submitted, however, that although the VP may beappointed to the Cabinet, he may not receive additionalcompensation in second capacity because of the absoluteprohibition in Section 6, Article VII. b. Secretary of Justice as member, Judicial Bar andCouncil (JBC) Article VIII, Section 8. (1) A Judicial and Bar Council ishereby created under the supervision of the SupremeCourt composed of the Chief Justice as ex officioChairman, the Secretary of Justice, and arepresentative of the Congress as ex officio Members, arepresentative of the Integrated Bar, a professor oflaw, a retired Member of the Supreme Court, and arepresentative of the private sector. c. Ex-officio positions y Prohibition under Sec. 13, Art. VII does not cover positions held without additional compensation in ex-officio capacities as y provided by law and as required by the primary functions of the y concened official s office. y Definition of ex-officio: from office or by virtue of office. Denotes an act done in an official character, or as a consequence of office and without any other appointment or authority than that conferred by the office. y Example: Secretary of Transportation and Communications is theex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority (LRTA) y - Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources FulgencioFactoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of. y During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. It has been held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an LAW ON PUBLIC OFFICE AND CIVIL SERVICE

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ISSUE (1) WON there was a vacancy. (2) WON the Secretary of Local Government has the authority to make temporary appointments-YES HELD/RATIO (1) YES. The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensucontrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. It can be readily seen that the office of the Vice-Governor was left vacant when the duly elected ViceGovernor LeopoldoPetilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. y There is no satisfactory showing that LeopoldoPetilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. (2) YES. Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. The temporary appointment extended to the petitioner to act as the Vice-Governor is valid. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. y under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. In the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. y It was best for Leyte to have a full- time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political considerations. y In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. y And even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. y There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. The appointment has the color of validity.

The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte -The additional compensation which the petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be retained by him.

LABO JR. V. COMELEC | Bidin, 1992

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Ma. Jessa M. Alvarez

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July 13, 2011 FACTS y Juan Frivaldo filed his certificate of candidacy for Governor of Sorsogon. y Raul Lee, another candidate, filed a petition with the COMELEC praying that Frivaldo be disqualified for not being a citizen of the Philippines. y COMELEC declared that Frivaldo is disqualified to run for not being a Filipino citizen. y Frivaldo filed an MR but remained unacted upon and so his name remained on the list of candidates. y Upon completion of the canvass, Frivaldo garnered the highest number of votes, with Lee coming in second. y However, upon Lee s motion, the COMELEC directed that he be proclaimed as the winning gubernatorial candidate. Accordingly, Lee was proclaimed Governor at 8:30PM of June 30, 1995. y Firvaldo on the same date, at 2:00PM took his oath of allegiance as Filipino citizen after his repatriation had been granted under PD 725. y The COMELEC, in a later resolution, held that Lee, not having garnered the highest number of votes was not legally entitled to be proclaimed and that Frivaldo (1) having garnered the highest number of votes and (2) having acquired Filipino citizenship by repatriation was qualified to hold office. ISSUE WON Frivaldo s repatriation is valid and effective. HELD/RATIO YES. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tediou s and cumbersome. In fact, P.D. 725 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator and the reestablishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people. y The law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day). y Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern ou r people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 the very day the term of office of governor (and other elective officials) began he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal PROF. GISELLA N. DIZON-REYES

FACTS y Ramon Labo Jr. believing he is a Filipino citizen launched his candidacy for Mayor of Baguio City. Roberto Ortega also filed his candidacy for the same office. y Ortega filed a disqualification proceeding against Labo before the COMELEC on the ground that Labo is not a natural-born citizen. He presented the decision in the 1989 case of Labo v. COMELEC where the Court ruled that Labo is not a Filipino citizen. y COMELEC denied due course to Labo s certificate of candidacy. y Labo filed motion to stay implementation of resolution. y COMELEC ordered that the disqualification of Labo be final and executory 5 days after date of promulgation; Labo may still be voted upon subject to final outcome of the case. y COMELEC however suspended the proclamation of Labo in the event he wins. y L contends that he is a Filipino Citizen, that he has reacquired his citizenship by citing his application for reacquisition of Filipino citizenship filed before the OSG. He also claims that under Sec. 72 of the Omnibus Election Code, his proclamation as winning candidate is allowed since the resolution disqualifying him was not yet final at the time the election was held. ISSUE (1) WON Labo is qualified to be proclaimed the Mayor of Baguio City. (2) WON Ortega, receiving the second highest number of votes should be declared Mayor of Baguio. HELD/RATIO (1) NO. The resolution cancelling Labo's certificate of candidacy on the ground that he is not a Filipino citizen having acquired finality constrained the Court to rule against his proclamation as Mayor of Baguio City. Labo was disqualified as a candidate for being an alien. His election does not restore his Phil citizenship, the possession of which is an indispensable requirement for holding public office (Sec. 39, LGC). y Citing itself in Frivaldo v COMELEC, the court had once said that: . . . The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. (2) NO. The disqualification of Labo does not necessarily entitle Ortega to proclamation as Mayor of Baguio because the fact remains that he was not the choice of the sovereign will. Ruling otherwise would amount to disenfranchising the electorate. y Note: the rule would have been diff if the electorate were aware of Labo s disqualification and still voted for him since the electorate may then be said to have waived the validity and efficacy of their votes, in which case, the candidate obtaining the next highest # of votes may be deemed elected. y Note: as consequence of Labo s ineligibility, a permanent vacancy in the ofc occurred. This should now be filled by the vice-mayor in accordance w/ Sec. 44 LGC.

FRIVALDO V. COMELEC | Panganiban, 1996

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interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Another reason for reckoning citizenship at the time of proclamation, not the date of election or filing of certificate of candidacy Section 253 of the Omnibus Election Code38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken hisoath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judiciallydeclared" alienage. Hence, at such time, he was no longer ineligible. To remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17,1994.

y y

allegiance to the RP and registering said oath in the Local Civil Registry of the place where person concerned resides or last resided. Repatriation results in recovery of the ORIGINAL NATIONALITY. This means, he will be restored to his prior status either as a natural-born or as a naturalized citizen. Cruz, having taken the required oath of allegiance and having registered the same, is deemed to have recovered his original status as natural-born citizen.

MERCADO V. MANZANO | Mendoza, 1999 FACTS y Mercado and Manzano were candidates for Makati Vice-Mayor. Manzano won. His proclamation was suspended in view of the pending disqualification petition filed by Ernesto Mamaril who claimed that Manzano was not a citizen of the Philippines but of the US. y COMELEC ordered the cancellation of the certificate of candidacy of Manzano on the ground of dual citizenship and under sec4(d) of LGC, persons w/ dual citizenship are disqualified from running for any elective position. y Manzano was born in San Francisco, California w/ Filipino parents and under US laws, he was a US citizen. Thusm both a Filipino and a US citizen. y COMELEC suspended the proclamation of the winner but later reversed itself allowing Manzano to run. y Manzano was proclaimed vice-mayor of Makati. ISSUE WON dual citizenship is a ground for disqualification. HELD/RATIO NO. Dual citizenship is different from dual allegiance. y Dual citizenship = arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. y Dual allegiance= refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual s volition. Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. y Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their PROF. GISELLA N. DIZON-REYES

BENGSON III V. HRET | Kapunan, 2001 FACTS y Teodoro Cruz was a natural-born citizen born in San Clemente, Tarlac of Filipino parents. y Cruz enlisted in the US Marine Corps and took an Oath of allegiance to the US. Thus, he lost his citizenship under CA 63: by rendering service to or accepting commission in the armed forces of a foreign country y Cruz reacquired Philippine citizenship through repatriation under RA 2630. He ran and was nd elected as the representative of the 2 district of Pangasinan. He won over Antonio Bengson III who was running for reelection. y Bengson filed a Quo Warranto Ad Cautelam case w/ HRET claiming Cruz was not qualified since he is not a natural-born citizen as required under Art VI, Sec 6, of the Constitution. y HRET declared Cruz as duly elected. ISSUE WON Cruz, a natural-born citizen who became a US citizen, can still be considered a natural-born Filipino upon his reacquisition of Filipino citizenship. HELD/RATIO YES. There are 2 ways of acquiring citizenship (1) by birth and (2) by naturalization. These correspond w/ the 2 kinds of citizens (1) natural-born and (2) naturalized. A person who at th time of his birth is a citizen of a particular country is a natural-born citizen thereof. Natural-born citizens do not have to perform any act in order to perfect their citizenship. y Citizens who have lost their citizenship may however reacquire it in the manner provided by law (CA 63). There are 3 modes (1) by naturalization (2) repatriation and (3) by direct act of Congress. y Repatriation under various statutes may be had by those who lost citizenship due to (3) service in the armed forces of the US at any other time it simply consists of taking an oath of LAW ON PUBLIC OFFICE AND CIVIL SERVICE

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allegiance to their countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen.

AASJS V. DATUMANONG | Quisumbing, 2007 FACTS y AASJS filed action for prohibition against Sec of Justice Datumanong to stop the implementation of RA 9225 (Citizenship Retention and Reacquisition Act of 1993) on the ground that the RA is unconstitutional as it violates sec.5, Art. IV of the 1987 Constitution which states that Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. y AASJS avers that Sec.2 and 3 allow dual allegiance and not dual citizenship. y Sec. 2- Philippine citizens who become citizens of another country shall be deemed not to have lost their Phil citizenship y Sec. 3- deemed to have reacquired citizenship upon taking the following oath of allegiance to the Republic y OSG s position: Section 2 merely declares as a state policy that "Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship." The OSG further claims that the oath in Section 3 does not allow dual allegiance since the oath taken by the former Filipino citizen is an effective renunciation and repudiation of his foreign citizenship. The fact that the applicant taking the oath recognizes and accepts the supreme authority of the Philippines is an unmistakable and categorical affirmation of his undivided loyalty to the Republic. ISSUE WON RA 9225 is unconstitutional. HELD/RATIO NO. The deliberations of Congress indicate that the law aims to facilitate the reacquisition of Phil citizenship by speedy means. y The problem of dual citizenship is transferred from the Phils to the foreign country because the latest oath of allegiance that will be taken by the former Filipino is one of allegiance to the Phils and not to the foreign country. The problem of dual allegiance is transferred from the Phils to the foreign country concerned. y That by swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship. y What RA 9225 does is allow dual citizenship to natural-born Filipino citizens who have lost citizenship by reason of their naturalization as citizens of a foreign country. ROMUALDEZ-MARCOS V. COMELEC | Kapunan, 1995 LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES

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FACTS st y Imelda filed her certificate of candidacy for Representative of the 1 district of Leyte initially declaring her residence in the constituency where she sought to be elected as 7 months. y Cinio Roy Montejo, incumbent representative and candidate for the same position filed a petition for cancellation and disqualification with COMELEC alleging that Imelda did not meet the constitutional requirement of 1 yr residency on the evidence of her declarations in her y Voter s registration record and certificate of candidacy. y Imelda amended her certificate of candidacy (changing the entry 7 mos to since childhood ) that the entry of 7 mos was an honest mistake and that she has always maintained Tacloban city as her domicile. y COMELEC came up with a resolution disqualifying Imelda and directing the suspension of her proclamation in the event she wins. y Imelda won. ISSUE WON Imelda met the constitutional requirement of residency. HELD/RATIO YES. Residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction. In its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. y The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. y RESIDENCE - used to indicate a place of abode, whether permanent or temporary y DOMICILE - denotes a fixed permanent residence to which, when absent, one has the intention of returning. y The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" y Minor follows the domicile of her parents. y That wife automatically follows the domicile of her husband upon marriage cannot be inferred from Art 110 CC y Her transfer of places had different purposes for each and she maintains her roots in her hometown. y Changing domicile: 1. Actual change of domicile 2. Bona fide intention of abandoning the former place of residence and establishing a new one 3. Acts which correspond to purpose

FACTS y Eduardo T. Rodriguez and Bienvenido O. Marquez, Jr. were protagonists for the gubernatorial post of Quezon Province. Rodriguez won and was proclaimed duly-elected governor. y Marquez challenged Rodriguez victory. Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160). y COMELEC dismissed Marquez s petition. In the earlier MARQUEZ Decision, it was declared that: x x x, fugitive from justice includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. y In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." y COMELEC ordered Rodriguez disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. He was ordered to immediately vacate said office. Further, he was disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections was set aside. y Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the position of governor. y On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995. y The COMELEC suspended Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari. ISSUE WON Rodriguez is a fugitive from justice and therefore disqualified. HELD/RATIO NO. The term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local position under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit: "A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution." Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. y Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by that same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez. PROF. GISELLA N. DIZON-REYES

RODRIGUEZ V. COMELEC | Francisco, 1996 LAW ON PUBLIC OFFICE AND CIVIL SERVICE

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July 13, 2011 NO. Although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the expiration of his term in case his successor fails to qualify, it does not also say that he is proscribed from holding over. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The law abhors a vacuum in public offices and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions. NO. Under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof, members of the then BatasangPambansa were not authorized to administer oaths. It was only after the approval of RA No. 673314 ["An Act to Amend Section 21, Title I, Book I of the Revised Administrative Code, and Section 41, Book I of the Adniinistrative Code of 1987, Granting Members of Both Houses of the Congress of the Philippines the General Authority to Administer Oaths, and for Other Purposes."] on 25 July 1989 and its subsequent publication in a newspaper of general circulation that members of both Houses of Congress were vested for the first time with the general authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Jowil Red before a member of the BatasangPambansa who had no authority to administer oaths, was invalid and amounted to no oath at all. An oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. Until then, he has none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant. It is thus clear in the present case that since Red never qualified for the post, petitioner LenlieLecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, or at least a defacto officer entitled to receive the salaries and all the emoluments appertaining to the position. As such, he could not be considered an intruder and liable for encroachment of public office.

Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.

LECAROZ V. SANDIGANBAYAN | Bellosillo, 1999 y FACTS y Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son,LenlieLecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay BagongSilang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays. y In the 1985 election for the Kabataang Barangay Jowil Red won as KB Chairman of Barangay Matalaba, Santa Cruz. y Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to Red confirming his appointment and advising him further that copies of his appointment papers would be sent to him in due time through the KB Regional Office. Red received the telegram on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz. y On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of the KBs to the SB, Red attended the meeting of the Sanggunian. In that meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the municipal council until his appointment had been cleared by the Governor of Marinduque. y Red finally received his appointment papers sometime in January 1986. But it was only on 23 April 1986, when then President Corazon C. Aquino was already in power that he forwarded these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian. y Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to LenlieLecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986 to 30 January 1987. LenlieLecaroz signed the payroll for 1-15 January 1986 and then authorized someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding salaries in his behalf. y On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment papers from President Marcos, Red was finally able to secure from the Aquino Administration a confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz. y Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor Francisco Lecaroz and LenlieLecaroz arising from the refusal of the two officials to let him assume the position of KB sectoral representative. y On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all counts of estafa through falsification of public documents. ISSUE (1) WON Mayor Lecaroz erred in not allowing Red to assume his position. (2) WON Red s oath taking was valid.

(2)

HELD/RATIO LAW ON PUBLIC OFFICE AND CIVIL SERVICE

B. Disqualifications 1. General Disqualifications AY 2011-2012 PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez 2. Specific Disqualifications CIVIL LIBERTIES UNION (CLU) V. EXECUTIVE SECRETARY, supra | Fernan, 1991

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FACTS y Petitioner challenged EO 284 issued by Pres. Aquino, which in effect allowed Cabinet members, their undersecretaries and assistant secretaries and other appointive officials of the Executive Dept. to hold other positions (not more than two apart from their primary positions) in the government albeit subject to limitations imposed therein. y The respondents in refuting the petitioners argument that the measure was violative of Article VIII Section 13 of the Constitution, invoked Article IX-B Section 7,allowing the holding of multiple positions by the appointive official if allowed by law or by pressing functions of his position . ISSUE WON EO 284 is unconstitutional. HELD/RATIO YES. EO 284 is UNCONSTITUTIONAL. It allows cabinet members, undersecretaries or assistant secretaries to hold multiple offices in direct contravention of the express mandate of Section 13, Article VII of the Constitution. Court is alerted by the respondents to the impractical consequence that strict construction of said provision will bring considering that Cabinet members would be stripped of their offices held in an ex-officio capacity but SC clarifies that ex-officio posts or those required by the primary functions of the executive official do not fall within the definition of any other office indicated in the constitutional prohibition. Article VIII, Section 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. y Exceptions to prohibition on executive officers from holding the additional positions a. VP as member of the Cabinet Article VII, Section 3. There shall be a Vice-Presidentwho shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President. The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. Note: It is submitted, however, that although the VP may be appointed to the Cabinet, he may not receive additional compensation in second capacity because of the absolute prohibition in Section 6, Article VII. b. Secretary of Justice as member, Judicial Bar and Council (JBC) Article VIII, Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. c. Ex-officio positions y Prohibition under Sec. 13, Art. VII does not cover positions held without additional compensation in ex-officio capacities as y provided by law and as required by the primary functions of the y concened official s office.

y y

Definition of ex-officio: from office or by virtue of office. Denotes an act done in an official character, or as a consequence of office and without any other appointment or authority than that conferred by the office. Example: Secretary of Transportation and Communications is theex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority (LRTA) - Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources FulgencioFactoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of. During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. It has been held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them.

DELA CRUZ V. COA | Sandoval-Guttierez, 2001 FACTS y The 20 petitioners were members of the Board of Directors of NHA. y COA issued a memorandum directing all unit heads who have issued additional compensation to cabinet secretaries, their deputies and assistants or their representatives, in violation of the rule on multiple positions to immediately cause the disallowance of such additional compensation and to effect the refund thereof, pursuant to the ruling in CLU v. Exec. Secretary declaring EO 284 unconstitutional. y NHA resident auditor issued a notice disallowing the representation allowances and per diems of the Cabinet members who were the ex-officio members of the board of NHA and/or their alternates. y Petitioners appealed to COA contending that (1) the decision of the SC in CLU v. Exec. Secretary applies only to members of the Cabinet, their deputies or assistants and does not cover other appointive officials with equivalent or lower rank than the Asst. Secretary; and (2) NHA Directors are not Secretaries, Undersecretaries or Asst. Secretaries as they occupy a lower position than the Asst. Secretaries. y COA ruled that the petitioners were not sitting in their own right but as representatives of cabinet members who are constitutionally prohibited from holding any other office or employment and receiving compensation therefor during their tenure. If the principal is absolutely barred from holding the position and from receiving remuneration, so must the agent be. The water cannot rise above its source. ISSUE WON the petitioners are entitled to the additional compensation.

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July 13, 2011 period 16 January 1986 to 30 January 1987. LenlieLecaroz signed the payroll for 1-15 January 1986 and then authorized someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding salaries in his behalf. On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment papers from President Marcos, Red was finally able to secure from the Aquino Administration a confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz. Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor Francisco Lecaroz and LenlieLecaroz arising from the refusal of the two officials to let him assume the position of KB sectoral representative. On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all counts of estafa through falsification of public documents.

HELD/RATIO YES. Sec. 7 of PD 757 creating the NHA provides that ...members of the board may have their respective alternates... and whose acts shall be considered the acts of their principals. Petitioners are alternates of said officers whose acts are considered the acts of their principals. y Sec. 13 Art. VII 1987 Constitution prohibits members of the cabinet to hold any other office or employment during their tenure. y However, in CLU v. Exec. Secretary it was held that the prohibition must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. y The term ex-officio means 'from office; by virtue of office'. It refers to an 'authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position. y The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. y Since the Executive Department Secretaries, as ex-oficio members of the NHA Board, are prohibited from receiving "extra (additional) compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism," it follows that petitioners who sit as their alternates cannot likewise be entitled to receive such compensation. LECAROZ V. SANDIGANBAYAN, supra | Bellosillo, 1999 FACTS y Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, LenlieLecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay BagongSilang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays. y In the 1985 election for the Kabataang Barangay Jowil Red won as KB Chairman of Barangay Matalaba, Santa Cruz. y Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to Red confirming his appointment and advising him further that copies of his appointment papers would be sent to him in due time through the KB Regional Office. Red received the telegram on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz. y On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of the KBs to the SB, Red attended the meeting of the Sanggunian. In that meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the municipal council until his appointment had been cleared by the Governor of Marinduque. y Red finally received his appointment papers sometime in January 1986. But it was only on 23 April 1986, when then President Corazon C. Aquino was already in power that he forwarded these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian. y Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to LenlieLecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the LAW ON PUBLIC OFFICE AND CIVIL SERVICE

ISSUE (3) WON Mayor Lecaroz erred in not allowing Red to assume his position. (4) WON Red s oath taking was valid.

HELD/RATIO (3) NO. Although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the expiration of his term in case his successor fails to qualify, it does not also say that he is proscribed from holding over. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. y The law abhors a vacuum in public offices and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions. (4) NO. Under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof, members of the then BatasangPambansa were not authorized to administer oaths. It was only after the approval of RA No. 673314 ["An Act to Amend Section 21, Title I, Book I of the Revised Administrative Code, and Section 41, Book I of the Adniinistrative Code of 1987, Granting Members of Both Houses of the Congress of the Philippines the General Authority to Administer Oaths, and for Other Purposes."] on 25 July 1989 and its subsequent publication in a newspaper of general circulation that members of both Houses of Congress were vested for the first time with the general authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Jowil Red before a member of the BatasangPambansa who had no authority to administer oaths, was invalid and amounted to no oath at all. y An oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. Until then, he has none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant. It is thus clear in the present case that since Red never qualified for the post, petitioner LenlieLecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, or at least a defacto officer entitled to

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 ABETO V. GARCESA | Davide, 1995

23

receive the salaries and all the emoluments appertaining to the position. As such, he could not be considered an intruder and liable for encroachment of public office. FLORES V. DRILON, supra | Bellosillo, 1993 FACTS y Petitioners challenge the constitutionality of RA 7227: Bases Conversion and Development Act of 1992 under which Mayor Richard Gordon of Olongapo City was appointed as Chairman and Chief Executive of SBMA. y sec. 13 par. (d) contains a proviso saying that for the 1st year of its effectivity, the mayor of Olongapo shall be appointed as chair and chief exec of SBMA. Petitioners claim this to be violative of a) sec. 7 Art. IX-B Consti (no elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure) since mayor of Olongapo is an elective office, b) sec 16 Art VII Consti (that the Pres shall appoint all other ofcrs of govt whose appointments are not provided by law) since Congress through the proviso appointed Gordon. ISSUE WON the appointment is unconstitutional. HELD/RATIO YES. The proviso directs the president to appoint an elective e official as chair of SBMA which is exactly what the consti proscription seeks to prevent y sec.94 LGC permits the appointment of an elective official to another post if so allowed by law or by primary functions of his office. However, no legislative act can prevail over the fundamental law of the land. y it is argued that the SBMA posts are ex officio to the position of the mayor of Olongapo and is thus an exception to the proscription. The argument is based on a wrong premise since Congress did not contemplate the SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo w/o need of appointment. The phrase shall be appointed shows the intent to make the SBMA posts appointive. y the proviso is a legislative encroachment on the power of the president to appoint as it already specified the person who is to occupy the position and the president has no choice under the law but to appoint the mayor of olongapo. y being an elective official, Gordon is not eligible for appointment to the position of SBMA chair. His appointment pursuant to a le3gislation contravening the consti cannot be sustained. However, he remains to be the mayor of Olongapo and his acts as SBMA Chair are not necessarily void since he may be deemed as a de facto officer= one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and 3rd persons, where the duties of the office were exercised under color of a known election or appointment , void because the officer was not eligible, or because there was a want of power in the appointing body, or by reason of some defect or irregularity in its exercise, or under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such. y in accordance w/ the ruling in CLU emoluments received by Gordon pursuant to his appointment may be retained by him.

FACTS y OCA received a complaint from Oscar Abeto charging Manuel Garcesa (stenographic reporter in RTC Bacolod) with having misrepresented himself as a full-fledged lawyer and having acted as one of the representatives of complainant in labor cases filed with the NLRC. y Garcesa admits having assisted the complainants but denies that he misrepresented himself as a lawyer since he frankly informed complainants that he is only a court employee and that he is only assisting them because at that time, no lawyer dared to assist the complainants in their labor cases. y Deputy Court Administrator submitted a memorandum recommending that the complaint be dismissed but that Garcesa be advised of the Civil Service Rules and the Court s memorandum circular prohibiting gov t employees from engaging in any private business, vocation, or profession w/o permission from this Court . y SC directed OCA to reevaluate the case. y Deputy Court Administrator concluded that Sec. 12, Rule XVIII, Rev Civil Service Rules provides that no officer or employee shall engage directly in any private business, vocation, or profession ...that this prohibition will be absolute in the case of those officers or employees whose duties require that their entire time be at the disposal of the gov t. Also, Administrative Circular No. 5 states that the entire time of judiciary officials and employees must be devoted to the gov t service to insure efficient and speedy administration of justice considering the express prohibition in the Rules of Court and the nature of their work. ISSUE WON Memorandum No. 17 issued by Office of the President (as to moonlighting provided there is a written permission from head) is applicable to employees of the courts. HELD/RATIO NO. In Administrative Circular No. 5 dated 4 October 1988, the SC said that the provisions of Memorandum Circular No. 17 of the Executive Department are not applicable to officials or employees of the courts considering the express prohibition in the Rules of Court and the nature of their work which requires them to serve with the highest degree of efficiency and responsibility, in order to maintain public confidence in the Judiciary. This prohibition is directed against "moonlighting," which amounts to malfeasance in office (Biyaheros Mart Livelihood Association, Inc. vs. Cabusao, 232 SCRA 707 [1994]). RABE V. FLORES | Per Curiam, 1997 FACTS y Narita Rabe filed an administrative complaint for Conduct Unbecoming a Government Employee, Acts Prejudicial to the Interest of the Service and Abuse of Authority against Delsa Flores (interpreter III, RTC, Panabo, Davao). The specific act complained of is that Flores claimed a stall at the extension of the Public Market when she is not a member of the association and that she took the law into her own hands when she destroyed a stall and brought it to the police station. y A Court resolution absolved Flores but required her to explain why she should not be administratively dealt with for (1) being certified to be still connected w/ the Municipal Government of Panabo on 3 Jun 1991 notwithstanding her assumption of her post in the RTC as early as 16 May 1991; (2) not reporting her business interest in her sworn statement of PROF. GISELLA N. DIZON-REYES

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

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Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 PUBLIC INTEREST CENTER, INC. V. ELMA | Chico-Nazario, 2006 FACTS y Magdangal Elma was appointed and took his oath of office as chairman of the PCGG. During his tenure as PCGG Chair, Elma was appointed Chief Presidential Legal Counsel. He took his oath of office the following day but he waived any remuneration that he may receive as CPLC. y Petitioners filed an action for certiorari to declare null and void Elma s concurrent appointments for being contrary to Sec. 13 Art. VII and Sec. 7, par. 2 Art IX-B of the 1987 Constitution. Petitioners also maintained that Elma was holding incompatible offices. y Elma claims that the strict prohibition against holding multiple positions in Sec. 13 Art. VII applies only to heads of executive departments, their Undersecretaries and Asst. Secretaries. That it is Sec. 7, par. 2 Art IX-B of the 1987 Const. that should be applied in their case and that this provision allows a public officer to hold multiple positions if (1) the law allows the concurrent appointment of the official and (2) the primary functions of either position allows such concurrent appointment. And since there is a close relation between the 2 positions, there is no incompatibility between them and the primary functions of each position would allow concurrent appointments to both positions. ISSUE WON PCGG Chair may concurrently hold the position of CPLC. HELD/RATIO NO. The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold more than one office only if allowed by law or by the primary functions of his position. In the case of Quimson v. Ozaeta, this Court ruled that, there is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility. The crucial test in determining whether incompatibility exists between two offices was laid out in People v. Green - whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other. y Section 13, Article VII does not sanction this dual appointment. Appointment to the position of PCGG Chairman is not required by the primary functions of the CPLC, and vice versa. The primary functions of the PCGG Chairman involve the recovery of ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his family and associates, the investigation of graft and corruption cases assigned to him by the President, and the adoption of measures to prevent the occurrence of corruption. On the other hand, the primary functions of the CPLC encompass a different matter, that is, the review and/or drafting of legal orders referred to him by the President. And while respondent Elma did not receive additional compensation in connection with his position as CPLC, he did not act as either CPLC or PGCC Chairman in an ex-officio capacity. The fact that a separate appointment had to be made for respondent Elma to qualify as CPLC negates the premise that he is acting in an exofficio capacity. DEBULGADO V. CSC | Feliciano, 1994 FACTS y Debulgado is the incumbent mayor of San Carlos City, Negros Occidental. He appointed his wife Victoria as General Services Officer, that is, head of the Office of General Services of the city of San Carlos.

Assets , Liabilities and Net Worth, Disclosure of Business Interests and Financial Connections for the years 1991-1994; (3) not divesting herself of her interest in said business; and (4) why she indicated in her DTRs for August 1995 that she worked when her Contract of Lease with the Municipal Government for the market stall states that she has to personally conduct business and be present, otherwise the same would be cancelled. In response, Flores avers that (1) the certification of the Municipal Treasurer is inaccurate. Further, she assumed her job in compliance with a directive and that even prior to said date, she already reported to the court in order to familiarize herself with the scope of her duties. She also admitted to receiving salary from the municipality notwithstanding her transfer to the Judiciary, but submitted that it was her desire to refund the amount but received her salary only in the month of June when it is the time of enrolment and she needed the money to defray registration expenses; (2) she did not divulge any business interest because she was never engaged in business during said period although she had a stall in the market; and (3) her Daily Time Record indicated that she held office in August because in truth and in fact she did hold office on those days because her contract of lease was never implemented as it was a subject of a civil case. OCA found Flores guilty of dishonesty and failure to report her business dismissal and recommended that the penalty of dismissal be imposed on her.

ISSUE WON Flores should be dismissed. HELD/RATIO YES. Under the Omnibus Rules Implementing Book V of EO No. 292 known as the "Administrative Code of 1987" and other pertinent Civil Service Laws, the penalty for dishonesty is dismissal, even for the first offense. y Accordingly, for respondent's dishonesty in receiving and keeping what she was not lawfully entitled to, this Court has the duty to impose on her the penalty prescribed by law: dismissal. No position exacts a greater demand for moral righteousness and uprightness from an individual than in the judiciary. Personnel in the judiciary should conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to outrage public decency. y Failure of respondent to disclose her business interest which she herself admitted is inexcusable and is a clear violation of Republic Act No. 6713. The requirement for public officers, in general, to divest themselves of business interests upon assumption of a public office is prompted by the need to avoid conflict of interests. In the absence of any showing that a business interest will result in a conflict of interest, divestment of the same is unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a conflict of interest because an Interpreter III of the Regional Trial Court has a stall in the market. A court, generally, is not engaged in the regulation of public market, nor does it concern itself with the activities thereof. While respondent may not be compelled to divest herself of her business interest, she had the legal obligation of divulging it.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez y

2003-29275

July 13, 2011 CSC V. DACOYCOY | Pardo, 1999

25

Victoria was one of the 3 employees who were considered for the position. Before such promotion, she had been in the service of the city government for about 32 yrs. Through the years she rose from the ranks. CSC received a letter from Congressman Tranquilino Carmona calling attention to the promotional appointment issued by mayor in favor of his wife. CSC later disapproved the promotion of Victoria on the ground that it violated the statutory prohibition against nepotic appointments. Petitioners moved for reconsideration contending that the prohibition does not apply to Victoria and that her right to due process was violated by unilaterally revoking her appointment. MFR was denied. Petitioners now contend that (1) Victoria can no longer be removed without giving her an opportunity to be heard and to answer; (2) Victoria was the most qualified among the 3 candidates; (3) choosing Victoria was concurred in by the SangguniangPanglungsod; and (4) the prohibition applies only to original appointments and not to promotional appointments.

FACTS y George Suan, a Citizen s crime Watch VP filed with the CSC a complaint against Pedro Dacoycoy for habitual drunkenness, misconduct and nepotism. y CSC found no substantial evidence to support the charge of habitual drunkenness and misconduct but CSC found Dacoycoy guilty of nepotism on 2 counts as a result of the appointment of his 2 sons, Rito and Ped, as driver and utility worker. They were under his immediate supervision and control as the Vocational School Administrator, Balicuatro College of Arts and Trades. CSC imposed the penalty of dismissal. y Dacoycoy filed MFR which the CSC denied. Dacoycoy filed certiorari w/ CA. y CA reversed the CSC ruling that Dacoycoy did not appoint or recommend his 2 sons, hence, was not guilty of nepotism. It is the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act. Hence, this appeal. ISSUE WON Dacoycoy is covered by the ban on nepotism. RATIO: YES. Under the definition of nepotism in Sec. 59 EO 292, one is guilty of nepotism if any rd appointment is issued in favour of a relative within the 3 civil degree of consanguinity or affinity of any of the following: (a) appointing or (b) recommending authority, or of the (c) chief of the bureau or office, or of the (d) persons exercising immediate supervision over the appointee. y Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. y It is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. Mr.Daclag's authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr.Daclag s immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed RitoDacoycoy driver of the school. On January 3, 1993, Mr.Daclag also appointed PedDacoycoy casual utility worker. However, it was respondent Dacoycoy who certified that funds are available for the proposed appointment of RitoDacoycoy and even rated his performance as very satisfactory . On the other hand, his son Ped stated in his position description form that his father was his next higher supervisor . The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr.Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr.Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr.Daclag recommended the appointment of respondent s two sons and placed them under respondent s immediate supervision serving as driver and utility worker of the school. Both positions are career positions. To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the

ISSUE WONpromotional appointment is covered by the legal prohibition against nepotism. HELD/RATIO YES. The prohibition applies to all appointments. The prohibition was cast in comprehensive and unqualified terms. Firstly, it explicitly covers "all appointments", without seeking to make any distinction between differing kinds or types of appointments. Secondly, Section 59 of Book 5, EO 292 covers all appointments to the national, provincial, city and municipal government, as well as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short list. y Both an original appointment and a promotion are particular species of personnel action. The original appointment of a civil service employee and all subsequent personnel actions undertaken by or in respect of that employee such as promotion, transfer, reinstatement, reemployment, etc., must comply with the Implementing Rules including, of course, the prohibition against nepotism in Rule XVIII. y To limit the thrust of the prohibition against nepotism to the appointment issued at the time of initial entry into the government service, and to insulate from that prohibition appointments subsequently issued when personnel actions are thereafter taken in respect of the same employee, would be basically to render that prohibition, in the words of Laurel V, etc. v. Civil Service Commission, "meaningless and toothless." y The purpose is to ensure that all appointments and other personnel actions in the civil service should be based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing power. y The subsequent marriage of one to the other of petitioners did not retroactively convert the original appointment of petitioner Victoria into a prohibited nepotic one. It is the promotional appointment issued by petitioner Mayor to petitioner Victoria in 1 October 1982 that is at stake. y Re violation of due process rights: The Commission, in approving or disapproving an appointment, only examines the conformity of the appointment with applicable provisions of law and whether the appointee possesses all the minimum qualifications and none of the disqualifications. The approval issued by Director Escobia did not, as it could not, cure the intrinsic vice of that appointment.

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PROF. GISELLA N. DIZON-REYES

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Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 HELD/RATIO YES. PLM mistakenly understood the meaning of ad interim which it repeated gave Dr. Esteban. The term is defined by Black to mean in the meantime or for the time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1 978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760): ... an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII of the Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.' lt is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an 'acting' appointment which is merely temporary, good until another permanent appointment is issued. y Not only is the appointment in question an ad interim appointment, but the same is also a confirmed ad interim appointment. In its Resolution No. 485 (transcript of which PLM failed to produce in court), the Pamantasan Board of Regents verified respondent Esteban's appointment without condition nor limitation as to tenure. As of that moment, it became a regular and permanent appointment. y In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the Board issues the appointment. But when the Board is not in session, the President is authorized to issue ad interim appointments. Such appointments are permanent but their terms are only until the Board disapproves them. If confirmed, the appointee's term is converted into the regular term inherent in the position. y The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. lt is a prerogative of the appointing power that may be availed of without liability, provided however, that it is exercised in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, and provided further, that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite (Government Service and Insurance System v. Ayroso 96 SCRA 213). y The general rule is that the power of appointment must remain unhampered by judicial intervention. However, when the law is violated or when there is grave abuse of discretion, we have to step in. LUEGO V. CSC | Cruz, 1986 FACTS y FelimonLuego was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by Mayor FlorentinoSolon. The appointment was described as "permanent" but the Civil Service Commission approved it as "temporary," subject to the final action taken in the protest filed PROF. GISELLA N. DIZON-REYES

appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism. C. Acquisition of right or title to office 1. Appointment PLM V. IAC | Guttierez, 1985 FACTS y Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the government service for twenty-five (25) years. Until May 20, 1973, he was officially connected with the Philippine College of Commerce, a state-owned educational institution as its VicePresident for Academic Affairs. Board of Trustees of the College resolved to abolish the position of Vice-President for Academic Affairs. Dr. Esteban was given the option to continue teaching at the Philippine College of Commerce which he accepted until his transfer to the PamantasanngLungsodngMaynila, upon the invitation of its president, Dr. Consuelo Blanco. y Dr. Esteban was initially extended an ad interim temporary appointment as VP for Admin by Dr. Blanco. Dr. Esteban received from the Secretary of the Pamantasan a Notification of Renewal of Temporary Appointment. His temporary appointment was renewed for several times. y Later however, Dr. Esteban discovered that he was not included in the list of employees recommended for permanent appointments. Worse,Dr. Blanco, issued a memorandum circular terminating Dr. Esteban's appointment as VP for Administration. His appointment dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it could be confirmed by the Pamantasan Board of Regents. y Civil Service Commission ruled that "The temporary nature of the appointment issued to Dr. Esteban as Vice President for Administration is conceded. Such being the case, his services may be terminated at any time with or without cause. y Dr. Esteban filed a motion for the reconsideration of that ruling. The Civil Service Commission ruled that he was fully qualified for the position of Vice-President for Administration and certified him "for appointment therein under permanent status." y The Pamantasan, in turn, asked for the reconsideration of that ruling. The Commission again modified its earlier resolution in his case. It ruled that Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice President for Administration as only the Board of Regents was empowered to do so. However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that position. y The Merits System Board was created and it required the Pamantasan to submit the complete records of Dr. Esteban s appointment and termination, which the Pamantasan failed to produce. y For such failure, the CSC ruled that there is truth to the claim of Dr. Esteban that his appointment was permanent. CSC further denied the Pamantasan s MR. y Pamantasan filed a petition for certiorari with the CFI. CFI reversed CSC saying that the appointment of Dr. Esteban was invalid. y IAM resversed the CFI declaring Dr. Esteban s appointment as permanent. ISSUE WON, in view of his ad interim appointment, he holds the position in a permanent capacity as to guarantee as security of tenure.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 REGIS V. OSMEA | Davide, 1991

27

by the FeliculaTuozo and another employee, and provided "there (was) no pending administrative case against the appointee, no pending protest against the appointment nor any decision by competent authority that will adversely affect the approval of the appointment." The CSC found the private respondent (Tuozo) better qualified than the petitioner for the contested position and, accordingly, directed "that FeliculaTuozo be appointed to the position of Administrative Officer II in the Administrative Division, Cebu City, in place of FelimonLuego whose appointment as Administrative Officer II is hereby revoked." The private respondent was so appointed by the new mayor, Mayor Ronald Duterte.

ISSUE WON Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, ordering his replacement by the latter. HELD/RATIO NO. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it temporary. y The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described as "Permanent" in the space provided for in Civil Service Form No. 33. What was temporary was the approval of the appointment, not the appointment itself. And what made the approval temporary was the fact that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the position. y The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and all the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. y Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. y It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. However, a full reading of the provision will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. y CSC had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor.

FACTS y Deogracias Regis was appointed by then Cebu City Mayor, Ramon Duterte, as driver of the Cebu Police Department. y Regis was issued another appointment by then Cebu City Mayor Carlos J. Cuizon as 'Driver, Civilian Employee' of the Cebu Police Department y Later, he was removed from his position in the Cebu Police Department without prior investigation or hearing, the termination having been made in a letter of dismissal saying that there was no more need for his services. y Regis is a civil service eligible, having passed the patrolman and/or detective (qualified) civil service exam. y After his removal, his former position was filled up by the mayor with a non-civil service eligible. y The lower court dismissed Regis petition on the ground that petitioner's questioned appointment was temporary in nature and, therefore, terminable at the pleasure of the appointing power. y Regis now alleges that his said removal was not for cause, and it was done without due process in violation of Section 32 of R.A. No. 2260 which provides that "no officer or employee in the civil service shall be removed or suspended except for cause provided by law and after due process." ISSUE WON Regis appointment was temporary thus, he is terminable at the pleasure of the appointing power. HELD/RATIO NO. Regis appointment was PROVISIONAL in nature. Provisional appointments are governed by paragraph (c) of Section 24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of said Section: (c) Provisional appointments A provisional appointment may be issued upon prior authorization of the Commissioner in accordance with the provisions of the Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment. (d) Temporary appointment. A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months, provided that a preference in filling such position be given to persons on appropriate eligible lists. y TEMPORARY APPOINTMENT is designed to fill "a position needed only for a limited period not exceeding six months, PROVISIONAL APPOINTMENT is intended for the contingency that "a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment." The reason for extending a provisional appointment is not because there is an occasional work or job to be done which is expected to be finished in not more than six months but because the interest of the service requires that certain work be done or functions be performed by a regular employee, only that there is no one with appropriate eligibility, who can be appointed to do it, hence any other eligible may be appointed to perform such work or functions in the meanwhile that a suitable eligible does not qualify for the position. PROF. GISELLA N. DIZON-REYES

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

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28 y

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 HELD/RATIO NO. Rules embodied in Part III, Article IV, Integrated Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service: xxx c. Appointment. Appointment to appropriate classes in the Career Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of the bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible, provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination.xxx y Petitioner was not a career executive service eligible at the time of his appointment, he came under the exception to the above rule and so was subject to the provision that he "shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher rank until he qualifies in such examination." Not having taken that examination, he could not claim that his appointment was permanent and guaranteed him security of tenure in his position. y A permanent appointment can be issued only "to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence. y The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. y The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent or another appointee. The person named in an acting capacity accepts the position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority. His term is understood at the outset as without any fixity and enduring at the pleasure of the appointing authority. When required to relinquish his office, he cannot complain that he is being removed in violation of his security of tenure because removal imports the separation of the incumbent before the expiration of his term. This is allowed by the Constitution only when it is for cause as provided by law. The acting appointee is separated precisely because his term has expired. Expiration of the term is not covered by the constitutional provision on security of tenure. Also, the petitioner could have been validly replaced even if he had not filed his courtesy resignation.

This is clearly implied by the mandate of the provision that a provisional appointment may be extended only to "a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service," meaning one who must anyway be a civil service eligible. On the other hand, again, in the case of a temporary appointment, all that the law enjoins is that "preference in filling such position be given to persons on appropriate eligible lists." And merely giving preference, of course, presupposes that even a non-eligible may be appointed. As a matter of fact, under this provision, even if the appointee has the required civil service eligibility, his appointment is still temporary, simply because such is the nature of the work to be done. The decisions cited by appellants are not in point. They all refer to temporary appointments as such. None of them involves a provisional appointment like the one herein in question. That there was "no more need" for his service was not a valid and lawful cause and even if it were so, it could not be availed of in this case since, as admitted by the parties, immediately after the ouster a non-civil service eligible was appointed to replace petitioner and more driver positions were included in the succeeding budget of the City of Cebu. These facts negated the pretended basis for the dismissal. The real hidden cause was not that service of the nature and character rendered by petitioner was no longer needed , but that petitioner had become unacceptable to the appointing authority. Petitioner testified that his removal was politically motivated, he was suspected of supporting the faction of Mr.Durano, a political enemy of respondent City Mayor. We are not inclined to give full faith and credit to this testimony considering that this point was not even alleged in the petition. We agree, however, with the court below that the patrolman-detective civil service eligibility of petitioner "is not intended for or appropriate to the position of driver; hence, it did not convert his temporary [should be, correctly, provisional] appointment of driver to a permanent one.

ACHACOSO V. MACARAIG | Cruz, 1991 FACTS y Tomas D. Achacoso was appointed Administrator of the POEA. In compliance with a request addressed by the President of the Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other government officials, he filed a courtesy resignation. This was accepted by the President. y The Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer-in-charge. He protested his replacement and declared he was not surrendering his office because his resignation was not voluntary but filed only in obedience to the President's directive. y Respondent Jose N. Sarmiento was appointed Administrator of the POEA. y Achacosofiled a motion for reconsideration, but this was denied. y He now invokes security of tenure against his claimed removal without legal cause. The respondents assert he is not entitled to the guaranty because he is not a career official. ISSUE WON Achacoso is a member of the Career Service of the Civil Service and so enjoys security of tenure.

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PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez MAROHOMBSAR V. ALONTO | Guttierez, 1991

2003-29275

July 13, 2011

29

FACTS y Dr. Emily M. Marohombsar was designated as OIC of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as VP for External Studies. y The Office of the VP for External Studies was merged with the OVCAA. Marohombsar was appointed acting VCAA on the same day. The Board of Regents approved her appointment. y Ahmad E. Alonto, MSU President, wrote Marohombsar informing her that he has decided to tap her talent for the MSU system as VP for Academic Affairs. Marohombsar answered that she cannot accept since she has already started several projects in the OVCAA. y Alonto designatedMacacuna Moslem as VCAA but the latter did not accept. Alonto then issued Special Order No. 158-P designating Professor Corazon Batara as OIC of the OVCAA effectively replacing Marohombsar. y Court issued a TRO directing the respondents to cease and desist from enforcing and/or implementing Special Order No. 158-P and from interfering and/or preventing the petitioner from performing her duties as VCAA. y Alonto submitted the SO for approval to the MSU BOR and so Marahombsar filed a motion to cite him in contempt for violating the TRO. y Marohombsar claim: her appointment was permanent, hence she can only be removed after a hearing and for cause. y Alonto sdefense: (1) Marohombsar s appointment was only in an acting capacity and thus may be removed at will and (2) Marahombar s permanent item is Professor IV, thus his designation as Acting VCAA cannot be deemed as a permanent appointment as that would create an anomalous situation where a person holds two permanent positions. ISSUE (1) WON Marohombsar, who was appointed ACTING VCAA of MSU by Alonto may be removed from office even without cause. (2) WON the fact that the permanent item of Marahombar is Professor IV militates against his claimed permanent appointment as Acting VCAA. HELD/RATIO (1) NO. A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. There are circumstances, however, which rule against the routine or blind application of the principle which governs acting appointments to this case. A public officer appointed in an acting capacity cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. y In this case, the intent to make Marohombsar serve at the pleasure of Alonto is obvious. When the Office of the VP for External Studies was merged with the OVCAA and Marohombsar was appointed as Acting VCAA, the effectwas to abolish her permanent office and give her a temporary appointment in the supposedly new office which replaced or absorbed the former office. Another result was the loss of her permanent status. y There are reasons which indicate that these maneuverings by Alonto cannot be characterized as bona fide. According the Code of Governance of MSU, the power to designate is vested in the MSU President. The designation must be less than one year. It must be reported to the LAW ON PUBLIC OFFICE AND CIVIL SERVICE

(2)

Board of Regents at the next regular meeting. After the meeting, another designation must be issued if no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied. On the other hand, the power to appoint is vested in the Board of Regents. If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for the information of the Board, the President's action should be merely "noted." When the Board of Regents confirmed the appointment of Marohombsar, it was acting on an ad interim appointment effected by the President. If it was a mere designation, it needs no confirmation. An ad interim appointment is one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. The intent to convert permanent items into temporary ones is also apparent when practically all top officers below the President were converted into positions where the occupants serve at the pleasure of the President and presumably, the Board of Regents. NO. In Tapales v. President and Board of Regents of the University of the Philippines, an appointment as Professor is needed for salary rating purposes but does not detract from the permanent nature of the administrative

DISPOSITIVE The petitioner shall remain as the lawful occupant in a permanent capacity of the position of ViceChancellor for Academic Affairs of MSU Marawi. SINON V. CSC | Campos, 1992 FACTS y Prior to the reorganization of the then Minister of Agriculture and Food (the "MAF"), Juana Banan was the incumbent Municipal Agricultural Officer (MAO) of Cagayan, while EliseoSinon occupied the position of Fisheries Extension Specialist (FES) II in the Bureau of Fisheries and Aquatic Resources (BFAR) in the same region. y However, the reorganization of the MAF into the Department of Agriculture (the "DA"), called for the evaluation of employees by the Placement Committee which included Sinon but excluded Banan.Banan filed an appeal with the DARAB for re-evaluation of the qualification. y In the re-evaluation of the DARAB, Sinon was displaced by Banan and this same resolution was duly approved by the Secretary of the Department of Agriculture. y However, Sinon received an appointment as MAO for Cagayan as approved by Regional Director Gumersindo D. Lasam on the basis of the first evaluation.Thus, Sinon filed an appeal with the CSC as to the DARAB re-evaluation. The CSC then set aside the DARAB re-evaluation. y Banan filed an MR: to allow the findings of the Placement Committee to supersede the DARAB resolution would be tantamount to giving precedence to the Placement Committee. y DARAB granted Banan's MR. y Sinon filed an MR. y CSC denied: The Placement Committee's function is recommendatory in nature. The decision of the agency RAB has the imprimatur of the Secretary of that agency and is therefore controlling in matters of and is therefore controlling in matters of appointment. ISSUE Which agency has the last say with respect to appointments? DARAB or Placement Commission?

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Ma. Jessa M. Alvarez

2003-29275 y

July 13, 2011 SangguniangPanlalawigan, suppressed the appropriation for the position of Assistant Provincial Warden and deleted Dato's name from the plantilla. Dato was subsequently acquitted of the charges against him. Consequently, he requested the Governor for reinstatement and backwages which was not heeded and so he filed an action for mandamus before the RTC. RTC: in favor of Dato and ordered that he be paid backwages. CA: affirmed RTC. Province of CamSur arguments: (1) the CSC approved as only temporary pending validation of the results Dato s examination for supervising security guard and (2) his subsequent qualification for civil service eligibility did not ipso facto convert his temporary status to that of permanent. Dato s argument: his appointment is permanent.

HELD/RATIO DARAB. The Office of the President created the agency RAB to address the problem of the employees affected by the reorganizations.The foregoing legal measures spell out the remedies of aggrieved parties which make it impossible to give the status of finality to any appointment until all protests or oppositions are duly heard. y Under R.A. 6656 the Placement Committee was created to assist the appointing authority in the judicious selection and placement of personnel. To "assist" mean to lend an aid to, or to contribute effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged. In contrast, to "recommend" is to present one's advice or choice as having one's approval or to represent or urge as advisable or expedient. It involves the Idea that another has the final decision. y Hence, for as long as the re-evaluation of the qualification filed by Banan was pending, Sinon cannot claim that he had been issued with a "complete" appointment. Neither is there any point in asserting that his appointment had "cured" whatever changes was subsequently recommended by the DARAB. DISPOSITIVE Petition is DENIED. SEPARATE OPINION GRIO-AQUINO, J., concurring: In the result only for we ruled in Bustamante vs. Executive Secretary 186 SCRA 109 and Pari-an vs. Civil Service Commission, 202 SCRA 772 that the reorganization of the Department of Agriculture was null and void. PROVINCE OF CAMARINES SUR V. CA | Kapunan, 1995 FACTS y Private respondent Tito Dato was appointed as Private Agent by then governor of Camarines Sur, Apolonio Maleniza. He was promoted and was appointed Assistant Provincial warden by then Governor Felix Alfelor, Sr. He had no civil service eligibility and could not be legally extended a permanent appointment. Hence, only a temporary appointment which was renewed annually. y Governor Alfelor approved Dato's status from temporary to permanent upon the latter's representation that he passed the civil service examination for supervising security guards. This was not favorably acted upon by the CSC reasoning that Tito Dato did not possess the necessary civil service eligibility. y No other appointment was extended to him. y Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges were filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some detention prisoners who escaped from confinement. y On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B. Rama, head of the Camarines Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter informing him that the status of private respondent Tito Dato has been changed from temporary to permanent, the latter having passed the examination for Supervising Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination. LAW ON PUBLIC OFFICE AND CIVIL SERVICE

y y y

ISSUE WON Dato was a permanent employee of the Province of Camarines Sur at the time he was suspended. HELD/RATIO NO.The lack of a civil service eligibility made his appointment temporary and without a fixed and definite term and is dependent entirely upon the pleasure of the appointing power. The fact that Dato obtained civil service eligibility later on is of no moment as his having passed the supervising security guard examination, did not ipso facto convert his temporary appointment into a permanent one. What is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment these are two distinct acts of the appointing authority. y The reliance of Dato on the letter of the CSC is also erroneous. The letter conferred upon Dato a permanent appointment in lieu of his passing the eligibility exam for Supervising Security Guard. Such action of the CSC is a clear arrogation of power properly belonging to the appointing authority. y Time and again, the Court has defined the parameters within which the power of approval of appointments shall be exercised by the Civil Service Commission. In Luego v. Civil Service Commission, the Court ruled that CSC has the power to approve or disapprove an appointment set before it. It does not have the power to make the appointment itself or to direct the appointing authority to change the employment status of an employee. When it issued the foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby encroaching on the discretion vested solely upon the latter. DISPOSITIVE The appealed decision is hereby REVERSED. GLORIA V. DE GUZMAN | Hermosisima, 1995 FACTS y Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was created by virtue of PD 1078. Under the said decree, the Board of Trustees is vested with authority, among others, to appoint, as it did appoint, officials and employees of the college, except the members of the Board of Trustees themselves and the President of the college.

AY 2011-2012

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Ma. Jessa M. Alvarez y

2003-29275

July 13, 2011 MATIBAG V. BENIPAYO | Carpio, 2002

31

y y

y y

The PAFCA Board of Trustees issued Resolution No. 91-026, which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities. Thus, private respondents were issued only temporary appointments as they lacked appropriate civil service eligibilities. Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the position of Board Secretary II of PAFCA. Cerillo wasrelieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 by reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for Extension Services". RA No. 7605 was enacted into law. It converted PAFCA into a state college to be known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the governing body of the PSCA. The power to make appointments was retained by the Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of a designation made anew by then DECS Secretary Isidro Cario. Col. Loleng inform private respondents that they shall be deemed separated from the service upon the expiration of their temporary appointments. Private respondents a "Petition for Mandamus and Reinstatement, with Back Wages and Damages", with the RTC. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling up of positions for Board of Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their respective positions. RTC (pertinent part): in favor of reinstating Cerillo as Coordinator for Extension Services.

ISSUE WON the reinstatement of Cerillo is proper. HELD/RATIO NO. Cerillo was dismissed from her appointment as Board Secretary because of loss of confidence. Thus, this cannot be properly the subject of a reinstatement proceeding.Cerillo's assignment as "Coordinator for Extension Services" was a mere designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for reinstatement. Even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only. y Further, the fact Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. The position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." y The questioned order of reinstatement amounts to an undue interference by the RTC in the exercise of the discretionary power of appointment vested in the PSCA Board of Trustees. DISPOSITIVE Reinstatement of Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees are hereby declared null and void. LAW ON PUBLIC OFFICE AND CIVIL SERVICE

FACTS y COMELEC en banc appointed Angelina Matibag as "Acting Director IV" of the Education and Information Department. Her appointment was renewed twice in a "Temporary" capacity. y President Gloria Macapagal Arroyo appointed, ad interim, Alfredo Benipayo as COMELEC Chairman, and Resurreccion Borra and Florentino Tuason as COMELEC Commissioners, each for a term of seven years. They all took their oaths. The OP submitted to the COA the ad interim appointments for confirmation. COA did not act on said appointments. y Arroyo twice renewed the ad interim appointments for the same term of seven years. They took their oaths of office for a second and third time. The OP transmitted their appointments to the COA for confirmation twice as well. y COMELEC Chairman Benipayo issued a Memorandum designating Velma Cinco Officer-inCharge of the EID and reassigning Matibag to the Law Department. y COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to Matibag s reassignment and questioned Benipayo s failure to consult the Commissioner-in-Charge of the EID in the reassignment of Matibag. y Matibag requested Benipayo to reconsider reassignment.She cited CSC Memorandum Circular No. 7, reminding heads of government offices that "transfer and detail of employees are prohibited during the election period." y Benipayo denied her citing COMELEC Resolution No. 3300 dated November 6, 2000, which allows the COMELEC to reassign its personnel when necessary in the effective performance of its mandated functions during the prohibited period. y Matibag appealed to the COMELEC and also filed an administrative and criminal complaint with the Law Department against Benipayo. y During the pendency of her complaint before the Law Department, Matibag also filed an instant petition with the SC questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason. Her arguments: (1) ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. ISSUE (1) WON the ad interim appointments of Benipayo, Borra and Tuason are constitutional (Art. IXC, Sec. 1(2)). (2) WON Matibag s reassignment is legal. HELD/RATIO: (1) YES. It is constitutional as it is not in a temporary or acting capacity, rather it is a permanent appointment. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office.

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Ma. Jessa M. Alvarez

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July 13, 2011 COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven years. b. Where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Suchperson cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointmentwill result in the appointee also serving more than seven years. c. Where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes theunexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. d. Where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation. An ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. (2) YES. Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc. Petitioner s appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV. Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. Finally, the COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayo s order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayo s order designating Cinco Officer-in-Charge of the EID is legally unassailable. DISPOSITIVE The petition is dismissed for lack of merit. PROF. GISELLA N. DIZON-REYES

The term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointmentmade by the President in the meantime that Congress is in recess. An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law." An ad interim appointment can be terminated for two causes ,which are resolutory conditions, specified in the Constitution:(1) disapproval of his ad interim appointment by the Commission on Appointments and(2) adjournment of Congress without the Commission on Appointments acting on his appointment. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. In this case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or acting capacity. The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect immediately. During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and the Senate run for reelection. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections. If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that "all x x x election cases shall be heard and decided in division", the remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are expected to travel around the country before, during and after the elections. Further, the President is free to renew the ad interim appointment of a by-passed appointee. The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There are four situations where this provision will apply: a. 1. Where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

Ma. Jessa M. Alvarez ERASMO V. HOME INSURANCE & GUARANTY CORP. | Austria-Martinez, 2002

2003-29275

July 13, 2011 PADILLA V. CSC | Corona, 2003

33

FACTS y Erly Erasmo started working with Home Insurance & Guaranty Corporation (HIGC) in 1982 as a consultant on the Project Evaluation Department, and held various positions, including Manager of Project Evaluation Department, Manager of Accounts, Assistant Vice-President of Accounts Management, Manager II of Guaranty and Credit Insurance Department, and Officer-in-Charge of Technical Service/Guaranty and Credit Insurance Group (TS/GCIG), until finally, she was promoted to Vice-President of TS/GCIG. The nature of her appointment was promotion and her employment status was "temporary," since the position is a Career Executive Service Office (CESO) and petitioner lacks the required CES eligibility. y Erasmo was administratively charged with: (1) neglect of duty, (2) incompetence in the performance of official duties, (3) conduct prejudicial to the best interest of the service, and (4) directly or indirectly having financial and material interest in any transaction requiring the approval of her office. y Erasmo appealed her temporary appointment to the CSC. y CSC: CES eligibility is required to a CES position, and even if one possesses such eligibility, still the appointment cannot be considered permanent unless an appointment to the rank has been granted by the President of the Philippines. y HIGC terminated the appointment of Ersamo and said that the pendency of the administrative case against her precludes any renewal of her appointment. y CA: affirmed CSC. ISSUE WON Erasmo is entitled to be reinstated to the position of Vice-President of TS/GCIG of HIGC. HELD/RATIO NO. Erasmo s promotional appointment as Vice-President of TS/GCIG is merely temporary in nature. This is because petitioner does not possess a career executive service eligibility which is necessary for the position of Vice-President of TS/GCIG, it being a career service executive office. Her new appointment, being temporary in character, was terminable at the pleasure of the appointing power with or without a cause, and she does not enjoy security of tenure. y Citing Achacoso v Macaraig: a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being Appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moment s notice, conformably to established jurisprudence y Erasmo did not understand the implications of her promotional, albeit temporary, appointment. In the first place, she was under no obligation to accept such promotion, for there is no law that compels an employee to accept a promotion, as a promotion is in the nature of a gift or reward, which a person has a right to refuse. And although she was formerly holding a permanent appointment, she accepted such temporary appointment. Having done so, she had abandoned or given up her former position. When she accepted the temporary appointment, in effect, she abandoned her right to security of tenure.

FACTS y Remedios Padilla assumed the permanent position of Clerk II in the then Ministry of Labor and Employment. She was promoted to the position of Labor Development Assistant. Without waiting for the CSC's approval of her appointment, she assumed her new position. y CSC-NCR Regional Director Aurora de Leon sent a 1st Indorsement to the Minister of Labor and Employment disapproving Padilla's appointment as Labor Development Assistant on the ground that she failed to meet the eligibility requirement for the position. y Maria Esther Manigque, Officer-In-Charge of the Institute of Labor and Manpower Studies, sought reconsideration of CSC's ruling by pointing out Padilla's satisfactory performance. It was denied. Padilla resigned from the service citing "personal reasons." y Padilla took the Career Service Examination (Professional Level). After passing, she re-applied at the DOLE. She was appointed as Casual Research Assistant which was extended. y Due to the implementation of RA 6758, otherwise known as the Salary Standardization Act of 1989, casual items such as Casual Research Assistant and Casual Technical were abolished. Padilla was offered the position of Clerk II. However, she declined the offer. y Padilla was appointed Casual Clerk III. After the expiration of her appointment as a casual employee, she was no longer given any position. She then requested the monetary conversion of her unused sick and vacation leaves which DOLE granted. y Nevertheless, Padilla appealed her alleged termination as casual employee to the CSC but this was dismissed for having been filed out of time. y Padilla then filed a letter-complaint addressed to then DOJ. The letter-complaint was forwarded to DOLE and later to the CSC for appropriate action. y CSC: dismissed. y CA: dismissed. It held that the CSC had the power to revoke the appointment of a public officer whose qualification did not meet the minimum requirements of the law. And although Padilla was a civil service eligible, her acceptance of a temporary appointment as a casual vested her no right to security of tenure. ISSUE WON Padilla s termination is legal. HELD/RATIO YES. Padilla voluntarily resigned and was never removed from the service. Petitioner used to occupy the permanent position of Clerk II before the disapproval of her appointment for Labor Development Assistant, a higher permanent position. Thereafter, she voluntarily resigned and later came back to occupy casual positions only despite passing the eligibility requirement for a permanent position. y Like removal for just cause, voluntary resignation results in the abdication of all present and future rights accorded to an employee and in the severance of all work-related ties between the employer and the employee. When she returned to work for respondent DOLE, the same was not a continuation of her previous service but the start of a new work slate. She could not therefore demand from respondent DOLE her reinstatement to a permanent position under Section 24 (d) of PD 807 inasmuch as she was never unjustly removed. y When Padilla re-applied for and was offered the position of Casual Research Assistant and later Casual Technical, she readily and unqualifiedly accepted the said offer. Having accepted the position of a casual employee, petitioner should have known that she had no security of tenure and could thus be separated from the service anytime. PROF. GISELLA N. DIZON-REYES

DISPOSITIVE The petition for review on certiorari is hereby DENIED for lack of merit.

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Ma. Jessa M. Alvarez

2003-29275 y

July 13, 2011 In Rapisora vs. Civil Service Commission, it was held that the rule that appointees must possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail an agency s discretionary power to appoint, as long as the appointee possesses other qualifications required by law. The appellate court was therefore correct in setting aside the assailed CSC resolutions and considering the respondent s total work experience as sufficient to meet the supervisory standards under the second clause, thereby finding respondent qualified for appointment to the contested position. Further, because of de la Cruz s excellent credentials, DOTC Assistant Secretary for Administrative and Legal Affairs Wilfredo M. Trinidad, chair of the Personnel Selection Board, strongly recommended his promotional appointment to the contested position. De la Cruz s dedication to the service was demonstrated by his conceptualization and establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national airports in the country to ensure the security of both airport personnel and passengers. Respondent also organized the Air Transportation Office Operations Center which now provides air service assistance on a 24-hour basis. In Teologo vs. Civil Service Commission, the Supreme Court ruled:"Promotions in the Civil Service should always be made on the basis of qualifications, including occupational competence, moral character, devotion to duty, and, not least important, loyalty to the service. The last trait should always be given appropriate weight, to reward the civil servant who has chosen to make his employment in the Government a lifetime career in which he can expect advancement through the years for work well done. Political patronage should not be necessary. His record alone should be sufficient assurance that when a higher position becomes vacant, he shall be seriously considered for the promotion and, if warranted, preferred to less devoted aspirants." In the appointment of division chiefs, as in this case, the power to appoint rests on the head of the department. Sufficient if not plenary discretion should be granted to those entrusted with the responsibility of administering the offices concerned. They are in a position to determine who can best fulfill the functions of the office vacated. Not only is the appointing authority the officer primarily responsible for the administration of the office, he is also in the best position to determine who among the prospective appointees can efficiently discharge the functions of the position.

Further, after finishing her contract as a Casual Technical, respondent DOLE offered to her the permanent position of Clerk II (the only available permanent position then) for which the Selection Board deemed her qualified. However, she declined the offer and instead opted to accept another casual position as Casual Clerk III. On the ground of estoppel, petitioner is barred from asserting her right to a permanent position. y

DISPOSITIVE The petition is hereby DENIED. CSC V. DELA CRUZ | Corona, 2004 FACTS y Saturnino de la Cruz is an employee of the Air Transportation Office (ATO), DOTC, presently holding the position of Chief Aviation Safety Regulation Officer of the Aviation Safety Division. Prior to such promotional appointment, he was a Check Pilot II in the ATO. y Annabella A. Calamba of the Aviation Security Division of the ATO formally filed with the DOTC her protest against the promotional appointment of de la Cruz claiming that de la Cruz did not meet the four-year supervisory requirement for said position. y DOTC: protest has no merit. y CSC-NCR: recalled the approval of de la Cruz s appointment for not meeting the requirements of the position. nd y CSC-NCR (2 decision): affirmed the approval of de la Cruz s appointment as Chief Aviation Safety Regulation Officer for substantially satisfying the supervisory requirement rd y CSC-NCR (3 decision): de la Cruz to be reverted to his former position. y CA: approved de la Cruz s appointment. ISSUE WON de la Cruz should retain his position considering that he does not possess the necessary requirement for such position. HELD/RATIO YES. De la Cruz has sufficiently complied with the required experience standards. y The contested position required four years of work experience in managerial position(s) per the Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools per the above-stated ATODOTC Qualification Standards. y It is a well-settled rule in statutory construction that the use of the term "and/or" means that the word "and" and the word "or" are to be used interchangeably.The use of the disjunctive term "or" in this controversy connotes that either the standard in the first clause or that in the second clause may be applied in determining whether a prospective applicant for the position under question may qualify. The work already rendered by de la Cruz in the ATO at the time of his appointment was well within the supervisory standard in the second clause. He, in fact, rendered 13 years of work prior to his appointment in four of the five sections of the Aviation Safety Division of the ATO definitely met the minimum supervisory experience required for the position.

DISPOSITIVE The appointment of Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED. CSC V. DARANGINA | Sandoval-Guttierez, 2007 FACTS y Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of Muslim Affairs (OMA). He was extended a temporary promotional appointment as director III, Plans and Policy Services, in the same office. CSC approved this temporary appointment effective for one (1) year from the date of its issuance unless sooner terminated. y OMA Executive Director Acmad Tomawis terminated the temporary appointment on the ground that Darangina is not a career executive service eligible. Tomawis then appointed Alongan Sani as director III. But he is not also a career executive service eligible. Thus, the CSC disapproved his appointment, stating that Darangina could only be replaced by an eligible. y CSC: sustained termination of Darangina. y CA: reinstated Darangina.

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AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez ISSUE WON Darangina should be reinstated.

2003-29275 y

July 13, 2011

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HELD/RATIO NO. Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended, classifying the appointment status of public officers and employees in the career service, reads: SEC. 27.Employment Status. Appointment in the career service shall be permanent or temporary. (1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. (2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. y It is clear that a permanent appointment can issue only to a person who possesses all the requirements for the position to which he is being appointed, including the appropriate eligibility. The exception to the rule is where, in the absence of appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such a temporary appointment is not made for the benefit of the appointee. Rather, an acting or temporary appointment seeks to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent appointee. y As to Darangin s replacement by another non-eligible, the Court ruled that, where a noneligible holds a temporary appointment, his replacement by another non-eligible is not prohibited. y Moreover, in Achacoso, the Court held that when a temporary appointee is required to relinquish his office, he is being separated precisely because his term has expired. Thus, reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term upon his replacement, there is no longer any remaining term to be served. Consequently, he can no longer be reinstated. DISPOSITIVE Respondent s employment is validly terminated. BAUTISTA V. SALONGA | Padilla, 1989 FACTS y President Corazon Aquino designated Mary Concepcion Bautista as "Acting Chairman, Commission on Human Rights." She later extended a permanent appointment to Bautista. y Bautista took her oath of office before CJ Marcelo B. Fernan. y Bautista then discharged the functions and duties of the Office of Chairman of the Commission on Human Rights. y COA requested her to submit certain information and documents to confirm her appointment and requested her presence. y Bautista however replied that the COA has no jurisdiction to review her appointment. Her reasons:

The Constitution, has expressly mentioned the government officials whose appointments are subject to the confirmation of the Commission on Appointments of Congress; and (2) CHR is an independent office. COA then informed the Executive Secretary it disapproved Bautista s "ad interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit to its jurisdiction. President Aquino as a result designated Hesiquio R. Mallillin as acting chairman of the Commission pending the resolution of Bautista's case.

ISSUE WON the Presidentcould extend another appointment (an "ad interim appointment") or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the COA. HELD/RATIO YES. When the President converted Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights, significantly she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore was a completed act on the part of the President. y Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President and Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain appointments for the President to make with the participation of the Commission on Appointments, so also has the Constitution mandated that the President can confer no power of participation in the Commission on Appointments over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained. y Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Constitution has reserved to the President alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make without the participation of the Commission on Appointments, the executive's voluntary act of submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done without or in excess of jurisdiction. y Assuming that the Executive may voluntarily allow the Commission on Appointments to exercise the power of review over an appointment otherwise solely vested by the Constitution in the President. Yet, as already noted, when the President appointed Bautista on 17 December 1988 to the position of Chairman of the Commission on Human Rights with the advice to her that by virtue of such appointment (not, until confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after PROF. GISELLA N. DIZON-REYES

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Ma. Jessa M. Alvarez

2003-29275

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taking her oath of office, the presidential act of appointment to the subject position which, under the Constitution, is to be made, in the first place, without the participation of the Commission on Appointments, was then and there a complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said office to this day. Further, the appointment was not an ad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e., without the participation of the Commission on Appointments. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments, cannot be ad interim appointments. Finally, Bautista can still be removed but her removal must be for cause and with her right to due process properly safeguarded. In the case of NASECO vs. NLRC, this Court held that before a rank-and-file employee of the NASECO, a government-owned corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her with the Ombudsman. If he finds a prima facie case against her, the corresponding information/s can be filed with the Sandiganbayan which may in turn order her suspension from office while the case or cases against her are pending before said court.

DISPOSITIVE Bautista is declared to be, as she is, the duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and emoluments of said office.

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AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez CORPUZ V. CA | Davide, 1998

2003-29275

July 13, 2011

37

FACTS y Atty. David Corpuz was appointed as the MTRCB s legal counsel-Prosecutor and Investigation Services (Supervising Legal Staff Officer). The appointment was approved by Asst. Regional Director Benita Santos of the CSC-NCR. As MTRCB legal counsel, Corpuz duties included attendance in Board meetings. y MTRCB passed a resolution: An Act to Declare the Appointments of the Administrative and Subordinate Employees of this Board as Null and Void. this resolution noted that the past and present Chairmen failed to submit for approval the appointments to the MTRCB before forwarding them to the CSC, in violation of sec 5 of PD 876-A and later, PD 1986. It declared invalid all the appointments of the present administrative and subordinate employees of the Board and that they shall hold on to their positions in a holdover capacity. Corpuz was unaware of the resolution as he was on leave. y Henrietta Mendez was appointed MTRCB Chair. New members of the Board were likewise appointed. At the MTRCB meetings, Mendez was informed of the resolution and an Ad Hoc Committee was constituted to look into the appointments extended by former Chair Morato as well as qualifications of the appointees. The committee resolved to recommend the approval of the appointments, except that of Corpuz and 7 others. y Mendez informed Corpuz that his appointment was disapproved. Corpuz and Larry Rigor filed a complaint w/ CSC requesting a formal investigation and hearing. CSC promulgated a resolution granting MTRCB authority to fill up positions vacated due to appointments w/c were not submitted to the MTRCB for approval. However, CSC in another resolution ruled in favour of Corpuz saying that his appointment was signed by Morato, the duly authorized signatory of MTRCB appointments and there being no direct action for revocation or recall, Corpuz had already acquired security of tenure. MTRCB s MFR was denied. In the meantime, Corpuz became a permanent employee of the Ombudsman. y MTRCB filed certiorari. CA declared the resolution null and void and ruled that since the appt of Corpuz was not approved by the MTRCB, the appointment was invalid and he could not invoke security of tenure. y Corpuz filed instant petition. ISSUE WON Corpuz ought to be reinstated. HELD/RATIO NO.Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective (Favis vs.Rupisan, cited in Mitra vs. Subido). Without the favorable certification or approval of the Commission, in cases when such an approval is required, no title to the office can yet be deemed to be permanent; vested in favor of the appointee, and the appointment can still be recalled or withdrawn by the appointing authority (Grospe vs. Secretary of Public Works and Communication, 105 Phil. 129; Villanueva vs. Balallo, 9 SCRA 407; Suarez vs. Commission on Elections, 20 SCRA 797). Until an appointment has become a completed act, it would likewise be precipitate to invoke the rule of security of tenure. y It appearing that respondent Atty. Corpuz appointment was not approved by the Board, the same cannot be considered as a valid appointment. As such, he cannot invoke security of tenure, even if he has rendered service for a number of years. y Atty. David Corpuz did not acquire a vested right nor does he presently enjoy a [sic] security of tenure to the subject position in the MTRCB for failure to comply with the legal LAW ON PUBLIC OFFICE AND CIVIL SERVICE

requirements needed for a valid appointment. Hence, he cannot be reinstated. Not being a permanent employee of the Movie and Television Review and Classification Board, the tenure of respondent Atty. Corpuz ceased when he was not properly appointed under present law. There are two stages in the process of appointing MTRCB personnel, other than its Secretary, namely: (a) recommendation by the Chairman which is accomplished by the signing of the appointment paper, which is among his powers under Section 5(d) above; and (b) approval or disapproval by the MTRCB of the appointment. As to the Secretary, it is the MTRCB itself that is empowered to appoint said official pursuant to Section 16. Where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. Hence, in the case of Corpuz, since the last act required for the completion of his appointment, viz., approval by the MTRCB itself, was not obtained, as a matter of fact, the MTRCB ultimately disapproved it, his appointment ceased to have effect, if at all, and his services were properly terminated. The tolerance, acquiescence or mistake of the proper officials resulting in non-observance of the requirements of law or rules to complete the appointment does not render the requirements ineffective and unenforceable. A public official or employee who assumed office under an incomplete appointment is merely a de facto officer for the duration of his occupancy of the office for the reason that he assumed office under color of a known appointment which is void by reason of some defect or irregularity in its exercise.

LAPINID V. CSC | Cruz, 1991 FACTS y Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal. y This appointment was protested by Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA, for a review of the decision of the Placement Committee. He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto. y Junsay, complaining that the PPA had not acted on his protest, went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. y The commission ruled that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively. ISSUE WON Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter.

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PROF. GISELLA N. DIZON-REYES

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Ma. Jessa M. Alvarez

2003-29275

July 13, 2011

HELD/RATIO NO. Citing heavily from Luego v CSC and a catena of other cases involving same issue: it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the appointing authority. y The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out that the recognition by the Commission that both the appointee and the protestant are qualified for the position in controversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the validity of the former's appointment. y SC gave stubborn CSC an ultimatum hahaha Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego v. Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner. y While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The CSC should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

Ma. Jessa M. Alvarez b. Appointment by the President SARMIENTO V. MISON | Padilla, 1987

2003-29275

July 13, 2011

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FACTS y In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments y Petitioners: Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional as it was not confirmed by the Commission on Appointments. y Mison, et al.: appointment was constitutional. ISSUE WON the President of the Philippines acted within her constitutional authority and power in appointing Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. HELD/RATIO YES.Under the provisions of the 1987 Constitution, there are 4 groups of officers whom the President shall appoint. a) the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; b) all other officers of the Government whose appointments are not otherwise provided for by law; c) those whom the President may be authorized by law to appoint; d) officers lower in rank whose appointments the Congress may by law vest in the President alone. y The first group of officers is appointed with the consent of the Commission on Appointments. As to the second, third and fourth groups of officers, it is unclear as to whether they require the consent of the COA. y By following the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only those appointments to positions in the first group require such consent. y The historical background of the law shows that in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the legislature. y Given the above two extremes, it is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the COA for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers. y The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the framers discussed on the floor of the Commission the proposed text LAW ON PUBLIC OFFICE AND CIVIL SERVICE

of Section 16, Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidential appointments more limited than that held by the Commission in the 1935 Constitution. It is, therefore, clear that appointments to the second and third groups of officers can be made by the President without the consent (confirmation) of the Commission on Appointments. As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in rank, compared to some officers whose appointments have to be confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service. The power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments. Further, the use of the word alone" after the word "President" in third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. The clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII. The word "alone" in the third sentence appears to be redundant and this redundancy cannot prevail over the clear and positive intent of the framers. Thus, it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs as provided in Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines.

DISPOSITIVE Petition dismissed. Melencio-Herrera, concurring: The difference in language used is significant. Under the first sentence it is clear that the President nominates and with the consentof the Commission on Appointments "appoints" the officials enumerated. The second sentence, however, significantly uses only theterm appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. Deliberately eliminated was any reference to nomination.

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

40

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments; and b. it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President. Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments over appointments of the Chairman and Member of the National Labor Relations Commission (NLRC) is beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof. In Endencia and Jugo vs. David, 11 the Court held: The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition. We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of such power of confirmation. a. DISPOSITIVE Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect. DE CASTRO V. JBC | Bersamin, 2010 FACTS y Chief Justice Puno s compulsory retirement was set on May 17, 2010, or seven days after the presidential election. y Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. y The JBC unanimously agreed to start the process of filling up the position of Chief Justice and consequently published for that purpose its announcement opening the application/recommendation for the position of CHIEF JUSTICE OF THE SUPREME COURT which must be submitted not later than 4 February 2010. y In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice PROF. GISELLA N. DIZON-REYES

Cruz, dissenting: This interpretation is absurd! E.g. To illustrate: The USec of Foreign Affairs, not the head of his department, does not have to be confirmed, but the ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank thanthe Chairman of the CHR, which was created by the Constitution; yet the former is subject to confirmation but the latter is not becaus he does not come under the first sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in thePresident, is not subject to confirmation under the first sentence, and neither are the Governor of the Central Bank and the membersof the Monetary Board because they fall under the second sentence as interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation is required although their rank is decidedly lower. CALDERON V. CARALE | Padilla, 1992 FACTS y Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. It provides in Section 13 thereof as follows: The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the President, subject to confirmation by the Commission on Appointments. Appointments to any vacancy shall come from the nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be appointed by the President, upon recommendation of the Secretary of Labor and Employment, and shall be subject to the Civil Service Law, rules and regulations. y Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the NLRC representing the public, workers and employers sectors. After said appointments, then Labor Secretary Franklin Drilon issued Administrative Order No. 161, series of 1989, designating the places of assignment of the newly appointed commissioners. ISSUE (1) WON the the permanent appointments extended by the President to the Chairman and Members of the NLRC are legal and constitutional without submitting the same to the COA for confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715. (2) WON Art. 215 of the LC as amended by RA 6715 transgressed Sec 16 Art VII of the Constitution by expanding the confirmation powers of COA. HELD/RATIO (1) YES. The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are not otherwise provided for by law and those whom the President may be authorized by law to appoint. y Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. (2) YES. It is unconstitutional because:

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

Ma. Jessa M. Alvarez

2003-29275 y

July 13, 2011

41

Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010. ISSUE WON an outgoing President has the power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term (election ban). HELD/RATIO YES.Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary. y First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain. y Art. VII pertains to the Executive, while Art. VIII goes for the Judiciary. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. y Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail. y The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was "couched in stronger negative language." Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commission's deliberations on Section 4 (1), Article VIII. y Second, Section 15, Article VII does not apply as well to all other appointments in the Judiciary.The Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship, the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBC s prior processing of candidates.

y y

Indeed, it is axiomatic in statutory construction that the ascertainment of the PURPOSE of the enactment is a step in the process of ascertaining the INTENT or MEANING of the enactment, because the reason for the enactment must necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it. Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment. Third, the fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Fourth, Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof. Fifth, to hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010. Sixth, the need for the incumbent President to appoint during the prohibition period the successor of CJ Puno within the context of Sec 4 (1), Art VIII, because anyway there will still be about 45 days of the 90 days mandated in Sec 4(1), Art VIII remaining? The argument is flawed, because it is focused only on the coming vacancy occurring from CJ Puno s retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the SC.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

42 y

Ma. Jessa M. Alvarez

2003-29275

July 13, 2011 the end of his term to these sensitive positions. The clear intent of the framers is thus for the ban on midnight appointments to apply to the judiciary. To hold that the ban on midnight appointments applies only to executive positions, and not to vacancies in the judiciary and independent constitutional bodies, is to make the prohibition practically useless. It bears noting that Section 15, Article VII of the Constitution already allows the President, by way of exception, to make temporary appointments in the Executive Department during the prohibited period. Under this view, there is virtually no restriction on the President s power of appointment during the prohibited period. The general rule is clear since the prohibition applies to ALL kinds of midnight appointments. The Constitution made no distinction. Ubi lex non distinguit nec nos distinguere debemos.Under the rules of statutory construction, exceptions, as a general rule, should be strictly but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Where a general rule is established by statute with exceptions, the court will not curtail the former nor add to the latter by implication. It bears noting that the Court had spoken in one voice in Valenzuela. The ponencia should not hastily reverse, on the sole basis of Justice Regalado s opinion, the Court s unanimous en banc decision penned by Chief Justice Andres Narvasa, and concurred in by, inter alia, Associate Justices who later became Chief Justices Hilario Davide, Jr., Artemio Panganiban and Reynato Puno. The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers' understanding thereof. The clear import of Section 15 of Article VII is readily apparent. The people may not be of the same caliber as Justice Regalado, but they simply could not read into Section 15 something that is not there. Casus omissus pro omisso habendus est. The 90-day period to fill a vacancy in the Supreme Court is suspended during the ban on midnight appointments Respecting the rationale for suspending the 90-day period, in cases where there is physical or legal impossibility of compliance with the duty to fill the vacancy within the said period, the fulfillment of the obligation is released because the law cannot exact compliance with what is impossible. In the present case, there can only arise a legal impossibility when the JBC list is submitted or the vacancy occurred during the appointments ban and the 90-day period would expire before the end of the appointments ban, in which case the fresh 90-day period should start to run at noon of June 30. This was the factual antecedent respecting the trial court judges involved in Valenzuela. There also arises a legal impossibility when the list is submitted or the vacancy occurred prior to the ban and no appointment was made before the ban starts, rendering the lapse of the 90-day period within the period of the ban, in which case the remaining period should resume to run at noon of June 30. The outgoing President would be released from non-fulfillment of the constitutional obligation, and the duty devolves upon the new President. Considering also that Section 15 of Article VII is an express limitation on the President s power of appointment, the running of the 90-day period is deemed suspended during the period of the ban which takes effect only once every six years. Otherwise stated, since there is a ban, then there is no duty to appoint as the power to appoint does not even exist. Accordingly, the 90-day period is suspended once the ban sets in and begins or continues to run only upon the expiration of the ban. The Supreme Court can function effectively during the midnight appointments ban without an appointed Chief Justice. The ponencia also declares that the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy, explaining that PROF. GISELLA N. DIZON-REYES

Seventh, as a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Appoint an acting CJ? With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution. For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity.

DISPOSITIVE Petition dismissed. Dissenting Opinion CARPIO MORALES, J.: In reality, the essential question boils down to the limitation on the appointing power of the President.  Constitutional draftsmanship style is the weakest aid in arriving at a constitutional construction y The first ratiocination adverts to the "organization and arrangement of the provisions of the Constitution" that was, as the ponencia declares, purposely made by the framers of the Constitution to "reflect their intention and manifest their vision" of the charter s contents. It is a precept, however, that inferences drawn from title, chapter or section headings are entitled to very little weight. And so must reliance on sub-headings, or the lack thereof, to support a strained deduction be given the weight of helium. Section sequencing alone of Sections 14, 15 and 16 of Article VII, as explained in the fourth ratiocination, does not suffice to signify functional structuring.  That the power of judicial appointment was lodged in the President is a recognized measure of limitation on the power of the judiciary, which measure, however, is counterbalanced by the election ban due to the need to insulate the judiciary from the political climate of presidential elections. To abandon this interplay of checks and balances on the mere inference that the establishment of the JBC could de-politicize the process of judicial appointments lacks constitutional mooring. The establishment of the JBC is not sufficient to curtail the evils of midnight appointments in the judiciary  The constitutional prohibition in Section 15 found its roots in the case of Aytona v. Castillo, where among the "midnight" or "last minute" appointments voided to abort the abuse of presidential prerogatives or partisan efforts to fill vacant positions were one in the Supreme Court and two in the Court of Appeals. y Heeding Aytona s admonition, the Constitutional Commission (ConCom) saw it fit to provide for a comprehensive ban on midnight appointments, finding that the establishment of the JBC is not enough to safeguard or insulate judicial appointments from politicization.  That about the end of the term of the President, he may prolong his rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the JUDICIARY, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor to make appointments to these positions. We should realize that the term of the President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made about LAW ON PUBLIC OFFICE AND CIVIL SERVICE 

 

 

AY 2011-2012

Ma. Jessa M. Alvarez

2003-29275 y

July 13, 2011

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the 90-day period in the proviso, "Any vacancy shall be filled within ninety days from the occurrence thereof," is addressed to the President, not to the JBC. Such interpretation is absurd as it takes the application and nomination stages in isolation from the whole appointment process. For the ponencia, the filling of the vacancy only involves the President, and the JBC was not considered when the period was increased from 60 days to 90 days. The sense of the Concom is the exact opposite. The express allowance of a 90-day period of vacancy rebuts any policy argument on the necessity to avoid a vacuum of even a single day in the position of an appointed Chief Justice.

NACHURA, J.: "No amount of exigency can make this Court exercise a power where it is not proper."1 I am deeply impressed by the very well written ponencia of Justice Lucas P. Bersamin. However, I am unable to concur in all of his conclusions. Instead, I vote to dismiss all the petitions because they have utterly failed to present a justiciable controversy. BRION, J.: y I AGREE with the conclusion that the President can appoint the Chief Justice and Members of the Supreme Court two months before a presidential election up to the end of the President s term, but DISAGREE with the conclusion that the authority to appoint extends to the whole Judiciary. y Where, as in Valenzuela, the Chief Justice was not effectively ruling on Section 4(1) of Article VIII, and was in fact ruling on a case involving lower court judges. y Section 9 does not impose a hard and fast rule on the period to be observed, apparently because the urgency of the appointment may not be as great as in the appointment of Members of the Supreme Court. The period for appointment can move at the discretion of the JBC, although the exercise of this discretion also carries its own butt-in and implicit limits. y The former Chief Justice s weightier reason arose from the Aytona where mass appointments were recognized as an evil that could affect the integrity of our elections. Because of the number of appointments that may currently be involved if appointments to lower courts are allowed before the May 2010 election and the power and influence judges may exert over their local communities, an exemption from the election ban may indeed bring about (or at least give the appearance of bringing about) the evils that the framers of the Constitution and this Court itself sought to remedy under Section 15, Article VII and the Aytona decision, respectively. y For this reason, I do not disagree with Valenzuela for its ruling on lower court judges; Section 15, Article VII may indeed prevail over Section 9, Article VIII. y In contrast with this conclusion, an interpretation that Section 15, Article VII will similarly prevail over Section 4(1), Article VIII is clearly misplaced. The structure, arrangement and intent of the Constitution and the public policy reasons behind them simply speak against the interpretation that appointments of Members of the Court should be subject to the election ban. AYTONA V. CASTILLO | Bengzon, 1962 FACTS y On December 29, 1961, President Carlos P. Garcia appointed Dominador R. Aytona as ad interim Governor of the Central Bank. On the same day, the latter took the corresponding oath.

On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on December 31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and cancelling all ad interim appointment made by President Garcia after he had been proclaimed elected by the Congress and appointed Andres V. Castillo on January 1, 1962, as ad interim Governor of the Central Bank, and the latter qualified immediately. Both appointed exercised the powers of their office, although Castillo informed Aytona of his title thereto; and some unpleasantness developed in the premises of the Central Bank. However, the next day and thereafter, Aytona was definitely prevented from holding office in the Central Bank. Aytona instituted a quo warranto proceeding. He claims that he was validly appointed, had qualified for the post, and therefore, the subsequent appointment and qualification of Castillo was void, because the position was then occupied by him. Castillo replies that the appointment of Aytona had been revoked by Administrative Order No. 2 of Macapagal

ISSUE WON the new President had power to issue the order of cancellation of the ad interim appointments made by the past President, even after the appointees had already qualified. HELD/RATIO YES. There were other appointments thus submitted by President Garcia on that date, December 29, 1961. All in all, about three hundred fifty (350) "midnight" or "last minute" appointments.In revoking the appointments, President Macapagal is said to have acted for these and other reasons: (1) the outgoing President should have refrained from filling vacancies to give the new President opportunity to consider names in the light of his new policies, which were approved by the electorate in the last elections; (2) these scandalously hurried appointments in mass do not fall within the intent and spirit of the constitutional provision authorizing the issuance of ad interim appointments; (3) the appointments were irregular, immoral and unjust, because they were issued only upon the condition that the appointee would immediately qualify obviously to prevent a recall or revocation by the incoming President, with the result that those deserving of promotion or appointment who preferred to be named by the new President declined and were by-passed; and (4) the abnormal conditions surrounding the appointment and qualifications evinced a desire on the part of the outgoing President merely subvert the policies of the incoming administration. y It is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a "care-taker" administration. He was duty bound to prepare for the orderly transfer of authority the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions1 irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

PROF. GISELLA N. DIZON-REYES

44 y

Ma. Jessa M. Alvarez

2003-29275 y y

July 13, 2011 For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. The Court's view is that during the period stated in Section 15, Article VII of the Constitution "2 months immediately before the next presidential elections and up to the end of his term" the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only once every six years. It appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code. The second type of appointments prohibited by Section 15, Article VII consists of the so-called "midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a "caretaker" administrator whose duty was to "prepare for the orderly transfer of authority to the incoming President." As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications," can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. The prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. The Constitution must be construed in its entirety as one, single, instrument. The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the Office of the Chief Justice on May 14, 1998) were unquestionably made during the period of the ban. Consequently, they come within the operation of the first prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the election. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban. On the other hand, as already discussed, there is a strong public policy for the prohibition against appointments made within the period of the ban.

Normally, when the President makes appointments the consent of the Commission on Appointments, he has benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is bound to be prudent to insure approval of his selection either previous consultation with the members of the Commission or by thereafter explaining to them the reason such selection. Where, however, as in this case, the Commission on Appointments that will consider the appointees is different from that existing at the time of the appointment and where the names are to be submitted by successor, who may not wholly approve of the selections, the President should be doubly careful in extending such appointments. Now, it is hard to believe that in signing 350 appointments in one night, President Garcia exercised such "double care" which was required and expected of him; and therefore, there seems to be force to the contention that these appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive authority to issue ad interim appointments.

IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO VALLARTA | Narvasa, 1998 FACTS y There is a standing issue as to the constitutionality of the President s appointment to the CA of 8 associate justice (reached the CJ April6, 1998). The initial position by the JBC courtesy of Justice Regalado was that it is not within the election ban. However, they took note of the fact that the appointments from OP were dated March 11 i.e. day before the ban). So it was this playing safe by the OP (which did not subscribe to JBC s initial hypothesis) that made the JBC suspicious of the constitutionality of the appointment. y However on May 12, 1998, Pres. Ramos appointed Valenzuela and Vallarta as judges of RTC (presumably to counteract the suspicion stirred in the earlier appointments to the CA). y There is an apparent conflict between the election ban on appointments (2 months prior to election) and the provision in the constitution which mandates president to fill vacancy within 90 days. Court considered the situation an administrative matter. ISSUE WON during the period of the ban on appointments imposed by Section 15, Article VII of the Constitution, the President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII. HELD/RATIO NO. Section 15, Article VII of the Constitution reads as follows: SEC 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. y On the other hand, appointments to fill vacancies in the Supreme court during the period mentioned in the provision above could seemingly be justified by another provision of the same Constitution. Section 4(1) of Article VIII which states: y SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ** **. Any vacancy shall be filled within ninety days from the occurrence thereof. y Also pertinent is Section 9, Article VIII: y The Members of the Supreme Court and judges in lower courts shall be appointed by the President from the list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

y y

LAW ON PUBLIC OFFICE AND CIVIL SERVICE

AY 2011-2012

PROF. GISELLA N. DIZON-REYES