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SPL. POL. LT. RAMON C.

TORREDES, Petitioner,

G.R. No. 151110 Present: TINGA, J.,* CHICO-NAZARIO, Acting Chairperson, VELASCO, JR.,* NACHURA, and REYES, JJ. Promulgated: After the preliminary investigation and dissatisfied with the explanation of petitioner, PEZA formally charged petitioner with violation of Section 46(4) [4] and (27),[5]Chapter 6, Subtitle A, Title I, Book V, of Executive Order No. 292, otherwise known as the Administrative Code of 1987, docketed as Administrative Case No. 98-008. In its decision,[6] the PEZA found petitioner liable not only for grave misconduct, but also for conduct grossly prejudicial to the best interest of the service. Correspondingly, petitioner was meted the penalty of dismissal from the service. The PEZA held, thus: The very essence of tong collection is the personal unlawful gain at the expense of another by the abuse of ones authority. Verily, [petitioner] abused his being a Deputy Station Commander by unlawfully demanding for a weekly amount of PhP1,000.00 for his personal gain. Even the demand for one (1) lechon is a form of tong. It was clearly established that upon assuming his post as Deputy Station Commander of the MEZ Police, [petitioner] immediately summoned the President of the drivers association. Right there and then [petitioner] demanded PhP1,000.00 tong per week from the said association for his personal gain. Whenever the association failed to give said tong, [petitioner] resorted to harassment and threats to the lives of the members of said association. This definitely is a grave misconduct. On record are pieces of direct evidence proving the [petitioners] harassment/threats. These are the two (2) IDs of Messrs. Sinangguti and Campos. During the hearing, it was certainly determined that the [petitioner] tore these IDs to harass/threaten the owners thereof for failure to give his PhP1,000.00 tong. [Were] it not for the fact that the [petitioner] already became physical in his harassment/threats to life, it is believed that these drivers will not come out in the open and expose his nefarious activities. It was only when the [petitioner] physically attacked one (1) of the drivers that the association thought the [petitioner] is really capable of making good his threats to their lives. The acts complained of do not only constitute grave misconduct, they are also conduct grossly prejudicial to the best interest of the service. Moreover, these acts could even be a basis for criminal prosecution. By committing these violations, the [petitioner] betrayed the very trust reposed upon him as the Deputy Station Commander, the second in command in the MEZ Police Force. He, therefore, willfully chose to be unfaithful to his trust thereby causing undue damage to the image of the public service. It must be noted that holders of government positions are mere trustees who are duty-bound and expected to serve the public with the highest standards of responsibility, integrity, loyalty and efficiency (CSC Resolution No. 94-1758, March 29, 1994), and as this Authority has been emphasizing, honesty. [Petitioner] should have kept in mind that he is an employee of that agency of government, which is involved in the noble task of

- versus -

CARLOS VILLAMOR, Respondent. x------------------------------------------------------------------------------------x DECISION NACHURA, J.: Before us is a petition for review on certiorari challenging the Court of Appeals (CA) Resolution[1] in CA-G.R. SP No. 61819 which dismissed the petition for review under Rule 43 of the Rules of Court, filed by petitioner, Special Police Lieutenant Ramon C. Torredes, for failure to implead therein as respondent the Philippine Economic Zone Authority (PEZA). The undisputed facts follow. In a memorandum dated September 8, 1998,[2] the Zone Administrator of the Mactan Economic Zone (MEZ), Dante M. Quindoza, informed petitioner of the charges leveled against him by the president and members of the MEPZA Drivers Association, namely, respondent Carlos Villamor, Joel Pino, Warden Sinangguti and Alex Goblin. The four had executed joint affidavits narrating petitioners weekly exaction of P1,000.00 from the drivers association allegedly for the payment of parking fees. However, the weekly exactions were not covered by official receipts. Villamor, president of the drivers association, initially agreed to such arrangement to facilitate the issuance of the identification card signed by petitioner, as the Deputy Station Commander of the MEZ Police Force, for use at the PEZA compound. In addition, the joint affidavits narrated an incident wherein petitioner handed a letter to Sinangguti demanding one (1) lechon (roasted pig) from the drivers association for his birthday celebration. Fed up, the drivers association, led by their president Villamor, discontinued the payment of the P1,000.00 weekly exaction and did not provide the roasted pig demanded by petitioner. Thus, on September 2, 1998, upon seeing Sinangguti, petitioner pushed him and simultaneously threatened him with bodily harm. In the same memorandum, Quindoza directed petitioner to explain in writing why no administrative case(s) should be filed against him for the complaints of the drivers association. In compliance with Quindozas directive, petitioner filed an Explanation[3] categorically denying the charges leveled by the drivers association. Petitioner explained that in the discharge of his duties and responsibilities as Deputy Station Commander of MEZ, specifically the strict enforcement of both the PEZAs and the Land Transportation Offices (LTOs) rules and regulations on cleanliness and traffic, he invariably caught the ire of the drivers association whose members allegedly constantly violated these rules and regulations. September 11, 2008

rendering service. His conduct and behavior should perforce be circled around the norms of honesty and integrity. xxxx This Authority has always been guided by the principle that when a public officer or employee is administratively disciplined, the ultimate objective is not the punishment of such public officer or employee, but the improvement of public service and the preservation of the peoples faith and confidence in their government.[7]

Petitioner argues that the CA erred in strictly applying procedural rules, thereby dismissing his appeal outright. He insists that compelling reasons obtain which should exempt him from the strict application of technical rules of procedure. In all, petitioner maintains that the named respondent herein, i.e., Villamor, and not PEZA, is the adverse party required by Rule 43 of the Rules of Court to be impleaded in the appeal and furnished with a copy thereof. Petitioner extensively cites the Administrative Code of 1987 provisions in Book V, Title I, Constitutional Commission; Subtitle A, Civil Service Commission; and Chapter 6, Sections 46 to 49 on Discipline, Disciplinary Jurisdiction, Procedure in Administrative Cases and Appeals, to prove that the PEZA is simply the investigating and, subsequently, the disciplining authority in this case. Perforce, since PEZA was not the original complainant but herein respondent Villamor and his drivers association, petitioner argues that PEZA cannot be an adverse party in the appeal before the CA. We do not subscribe to petitioners faulty logic. Petitioners contention conveniently ignores the administrative nature of this case and his position as a public officer. The fact that petitioner occupies a public office brooks no argument. A public office is defined as 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 appointing 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.[10] The purpose and nature of public office is grounded on it being a public trust. No less than the Constitution states: SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

Aggrieved, petitioner appealed the PEZA decision to the Civil Service Commission (CSC). In its resolution,[8] the CSC affirmed the PEZA ruling dismissing petitioner from the service, thus: After a careful evaluation of the records of the case, the [CSC] finds the appeal bereft of merit. As defined, Grave Misconduct is a flagrantly or shamefully wrong or improper conduct. It is a transgression of some established and definite rule of action, more particularly unlawful or corrupt behavior or gross negligence by the public officer. Based on the records of the case, [petitioner] Torredes was found to have committed the following acts which are clearly unbecoming of a public officer of his stature: demanding and personally receiving a weekly tong amounting to One Thousand Pesos (P1,000.00) from the MEPZA Drivers Association; ordering Sinangguti to produce a lechon for his [petitioners] birthday; and, pushing and threatening Sinangguti with bodily harm. These were established by the prosecution through the direct, positive, and categorical testimonies of its witnesses. Said testimonies cannot be easily overthrown by the [petitioners] mere denial. It is a basic rule in evidence that a negative testimony cannot prevail over a positive one. Besides, factual findings of administrative agencies are accorded not only respect but finality because of the special knowledge and expertise gained by these quasijudicial tribunals handling specific matters falling under their jurisdiction. Further, there was no evidence on record to prove [petitioners] allegation as to the ill-motive of the complainants in filing the charges against him. Besides, the said witnesses would not ordinarily testify against the [petitioner] unless there is some truth in their testimony. [9]

Unmistakably, petitioner is a public officer whose duties, not being of a clerical or manual nature, involve the exercise of discretion in the performance of the functions of government.[11] In turn, PEZA, which was created to effect and promote the common good, is petitioners employer, an instrumentality of the government. Thus, PEZA first investigated and ascertained the veracity of the drivers associations complaint against petitioner. Thereafter, finding petitioner liable for gross misconduct and conduct prejudicial to the best interest of the service, PEZA, as the disciplining authority, meted the penalty of dismissal prescribed by law. PEZA is not simply the disciplining authority in this instance. When petitioner appealed the PEZA decision to the CSC, he effectively challenged the disciplinary action taken by PEZA against him. Even at that point, PEZA already became a party that could be adversely affected by the decision therein. His appeal from the CSC to the CA, which could have resulted in the reversal of the PEZA decision and the affirmation thereof by the CSC, would have adversely affected PEZA. Therefore, in the CSC and CA cases, neither respondent Villamor nor the drivers association, but PEZA, was the adverse party contemplated by Rule 43 of the Rules of Court. Thus, it was necessary for the petitioner to implead PEZA. More importantly, the acts complained of against petitioner, who, to reiterate, is a public officer, gave rise to threefold liability, specifically, civil, criminal and administrative liability. Entrenched in jurisprudence is the rule that the wrongful acts or omissions of public officers may result in three separate liabilities with the action for each proceeding

Undaunted and as previously adverted to, petitioner appealed to the CA via a petition for review under Rule 43 of the Rules of Court which was dismissed for petitioners failure to implead and furnish PEZA a copy of his appeal. Petitioner now implores us to reverse the CAs dismissal of his appeal, positing that: (1) PEZA, being the first investigating and disciplining authority, is not an adverse party within the contemplation of Rule 43 of the Rules of Court; and (2) assuming that PEZA is the adverse party, petitioners failure to implead PEZA in, and furnish it with a copy of, his appeal before the CA does not merit the immediate dismissal thereof.

independently of the others.[12] Likewise, the quantum of evidence required in each case is different. By this principle, the jettisoning of the petition is inevitable upon a close perusal of the merits of the case. Petitioners gross misconduct, coupled with the commission of conduct prejudicial to the public interest, was proven by the quantum of evidence required in administrative cases substantial evidence, which we are not wont to disturb. Petitioners plaintive cry for the relaxation of the rules of procedure is unavailing in light of the established facts. Our ruling in Remolona v. Civil Service Commission[13] pertinently holds, thus:

Francisco Villa, a state prosecutor in the Department of Justice, but the respondent Commissioner of Civil Service Abelardo Subido held the appointment in abeyance until other persons who, in Subido's opinion, had preferential right to appointment have been considered. One of these persons is Pineda who, as deputy chief of police, "is a person next in rank entitled to promotional preference for the position of Chief of Police ... before others may be considered (for) transfer, reinstatement, reemployment or certification." Subido defined his stand in his letter to Mayor Claudio of September 17, 1968, the text of which reads: Sir:

The general rule is that where the findings of the administrative body are amply supported by substantial evidence, such findings are accorded not only respect but also finality, and are binding on this Court. It is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its own judgment for that of the administrative agency on the sufficiency of evidence. Thus, when confronted with conflicting versions of factual matters, it is for the administrative agency concerned in the exercise of discretion to determine which party deserves credence on the basis of the evidence received. The rule, therefore, is that courts of justice will not generally interfere with purely administrative matters which are addressed to the sound discretion of government agencies unless there is a clear showing that the latter acted arbitrarily or with grave abuse of discretion or when they have acted in a capricious and whimsical manner such that their action may amount to an excess of jurisdiction. WHEREFORE, premises considered, the petition is DISMISSED. The decision of the Philippine Economic Zone Authority in Administrative Case No. 98-008, and Resolution Nos. 1439 and 2143 of the Civil Service Commission dismissing petitioner from the service, are hereby AFFIRMED. No costs. SO ORDERED. G.R. No. L-29661 May 13, 1969

This refers to the proposed appointment of Mr. FRANCISCO A. VILLA, a Bar (RA 1080) and second grade eligible, as Chief of Police in the Police Department of Pasay City at P12,000 per annum effective September 1, 1968, vice Mariano Tumaliuan, deceased. Section 4 of Republic Act No. 5185 (Decentralization Act of 1967) in its paragraphs 4 and 5 provides: In cases of vacancies in the offices of heads and assistant heads of local offices, the governor or mayor shall fill them by appointment from a list of the five next ranking eligible and qualified persons as certified by the Civil Service Commission: Provided, That these five persons shall have stated beforehand that they will assume the position, if appointed. (paragraph 4) The ranking shall be based on such factors as class of province, city or municipality where the vacancy occurs, seniority, efficiency rating, extraordinary qualifications, and other supplementary criteria as may be prescribed by the Civil Service Commission. Paragraph 3, Section 23 of Rep. Act 2260, also provides: Whenever a vacancy occurs in any competitive or classified position in the government or in any government-owned or controlled corporation or entity, the officer or employee next in rank who is competent and qualified to hold the position and who possesses an appropriate civil service eligibility shall be promoted thereto: Provided, That should there be two or more persons under equal circumstances, seniority shall be given preference. And provided, however, That should there be any special reason or reasons why such officer or employee should not be promoted, such special reason or reasons shall be stated in writing by the appointing official and the officer or employee concerned shall be informed thereof and be given an opportunity to be heard by the Commissioner of Civil Service, whose decision in such cases shall be final. If the vacancy is not filled by promotion as provided herein, then the same shall be filled by transfer of present employees in the government service, by reinstatement, by reemployment of persons separated through reduction in force, or by certification from appropriate register of eligible in accordance with rules promulgated in pursuance of this Act.

BASILIO M. PINEDA, as Deputy Chief of Police of Pasay City, petitioner, vs. JOVITO O. CLAUDIO, as Mayor of Pasay City; FRANCISCO A. VILLA and ABELARDO SUBIDO, as Commissioner of Civil Service, respondents. CASTRO, J.: This is a petition for mandamus to compel the respondent Jovito O. Claudio, mayor of Pasay City, to appoint the petitioner Basilio M. Pineda chief of police of the city, on the theory that, as the incumbent deputy chief of police and therefore the officer next in rank, the petitioner is legally entitled to be promoted to the said position. Upon the death of Col. Mariano Tumaliuan on August 28, 1968, the position of chief of police of Pasay City became vacant. To fill the vacancy, Claudio appointed the respondent

Interpreting this latter provision in the case of Millares vs. Subido, et al., G.R. No. L23281, August 10, 1967, the Honourable Supreme Court ruled: 'In other words, a vacant position (be it new or created by the cessation of an incumbent in office), shall be filled by promotion of the ranking officer or employee, who is competent and qualified to hold the same. And only where, for special reason or reasons of which the affected officer or employee will be notified, this mode of recruitment or selection cannot be observed, that the position may be filled either by transfer, or reemployment, or by getting from the certified list of appropriate eligibles, in that order.' (Emphasis by the Court). The above-quoted provisions and Supreme Court ruling spell out categorically the priorities in the modes of filling a vacancy in the competitive service, to wit: first priority is by promotion of next in rank employees from within the agency, second is by transfer of employees in other agencies, third is by reinstatement and reemployment of former employees, and last by certification from the appropriate eligible lists. Conformably with these provisions and ruling, this Office announced in the Manila Times of September 5, 1968, the mode of filling vacancies for Chief of Police for Manila and Pasay City and the qualifications of those who may apply. A Xerox copy of the clippings of the Manila Times is hereto attached as Annex 'A'. The said announcement was also the subject of a news item published in the same issue of the Manila Times, a copy attached as Annex As of this writing, the following persons, in the order of priority, are hereby certified for the said position: A. Promotion (next-in-rank) 1. Basilio Pineda formerly chief of police of the Pasay City Police Department, a chief of police eligible, and presently Deputy Chief of Police of the Pasay City Police Department. B. Transfer 1. Major Jesus Dizon a Xerox copy of his curriculum vitae is attached. 2. Albino S. Mondares a Xerox copy of his curriculum vitae is attached. C. Reinstatement/Reemployment 1. Jaime Valencia formerly chief of police of Pasay City Police Department whose appointment was bypassed. His information sheet is on file in that Office. D. Certification 1. Roland C. Siquijor (Chief of Police eligible.) 2. Abelardo Tesoro (Chief of Police eligible.)

3. Francisco Villa the proposed appointee. It is significant to note in this connection that Mr. Basilio Pineda, who is presently the Deputy Chief of Police of Pasay City, a Chief of Police eligible and formerly the Chief of Police of Pasay City, is a person next in rank entitled to promotional preference for the position of Chief of Police. Under the law and Supreme Court ruling above cited, Mr. Pineda should be considered for promotion before others may be considered by transfer, reinstatement, reemployment, or certification. As a matter of fact this Office in a letter dated August 5, 1968, and reiterated in a 1st endorsement dated August 28, 1968, has previously directed that Office to consider Mr. Pineda for designation as the Acting Chief of Police in place of Mr. Francisco Grape, who does not possess the appropriate eligibility and who is holding on to the position of Deputy Chief of Police by virtue of a preliminary writ of injunction issued by the CFI of Rizal. Information is requested as to the reason why the directive of this Office contained in the said communication has not been complied with. If Mr. Pineda may not be considered, the special reason or reasons therefor must be stated in writing and submitted to this Office. The same procedure should also be followed if Messrs. Dizon, Mondares and Valencia may not be considered for the said position before Messrs. Siquijor, Tesoro and Villa may be considered for appointment thereto. Premises considered, the processing of the proposed appointment of Mr. Francisco Villa is held in abeyance until after the persons with appointment preference have been duly considered by that Office, and for special reason or reasons, could not be appointed Chief of Police. In the meantime, the directive of the Office contained in the letter dated August 5, 1968 should be complied with by that Office. In reply, Claudio for the first time disclosed his reasons for not appointing Pineda to the vacant position. In his letter to Subido on September 20, he explained: . As a native of Pasay and having been an official hereof for the past eight (8) years I am fully cognizant of the performance in office of Messrs. Basilio Pineda, Jaime Valencia, Roland C. Siquijor and Abelardo Tesoro and they cannot boast of any improvement they have introduced to lift the sagging inefficiency of the local police organization. The actual members of untrained and undisciplined men still persist. On September 30, 1968 the Secretary of Justice, to whom the matter had earlier been referred, submitted a memorandum to the President substantially to the effect that section 23 of the Civil Service Act of 1959 does not apply in the case of the chief of a police agency whose appointment, it was contended, is governed by the Police Act of 1966. Pertinent excerpts from the said memorandum are hereunder quoted: 3. Under the Police Act, ... it is specifically provided (in section 17) that in case of permanent vacancy caused by death, etc., in a local police agency, "the mayor shall fill such vacancy as provided in this Act" and not in accordance with the Civil Service Act and rules and regulations. Congress is presumed to be aware of certain rules or limitations in the general civil service law which operate to restrict or curtail the discretion of the appointing power; hence, this special rule which makes it indubitable that the general rules governing appointment in the civil

service, are inapplicable to appointments in a police service, except of course, where it so expressly provided therein or incorporated in the implementing rules and regulations. 4. As regards the chief of police, there is even another provision which serves to underscore this special rule. I refer to the last paragraph of Section 10, supra, which states that in case there is no civil service eligible available for the position of chief of police, "provisional appointment may be made in accordance with the Civil Service Law and Rules." It is implicit in this provision that in other cases, especially those covered by section 17, the appointment shall be permanent in nature and "as provided for in this (Police) Act." 5. ... [A]side from the provision (of section 11) specifically forbidding the filling of any position by permanent appointment unless the appointee has the appropriate eligibility, there appears to be no other statutory limitation on the City Mayor's discretion in the selection of the chief of police so long as the one chosen possesses the minimum qualifications prescribed by the Act. The Police Manual has included the civil service rule on promotion which gives the next-in-rank, among others, preference in the filling of the vacant position. However, upon close examination of Rule VI, it is readily seen that the promotional rules therein set forth find application only to the filling of positions in the police service below that of chief of police he being the one charged with the duty and responsibility of screening and recommending for promotion the deserving members of the police agency (sections 2, 3, 4, 5 and 6). Of course, in every case the next-in-rank or deputy chief, by reason of his position, would surely be among the first to be considered by the City Mayor in the selection of the chief of police, if qualified and competent; but he cannot claim any preferential right over others in the list of eligibles based on the aforementioned rule found in the Civil Service Act. 6. This was the legal situation at the time of the enactment of the Decentralization Law (RA 5185, approved on September 12, 1967). I am unable to see any substantial change resulting from the insertion in section 4 thereof, quoted supra, of the provision that the heads of offices and their respective assistants, whose salaries are paid out of city funds, shall be appointed by the City Mayor "subject to the civil case law, rules and regulations." Obviously, this clause refers to office heads whose appointments, unlike that of the chief of police, are not covered by any special law or provision and should therefore be appointed in accordance with the general civil service law and rules ... What is more important and far reaching in Section 4 is the provision which categorically states that the offices of the aforementioned heads and assistant heads 'shall be filled by appointment from a list of five next ranking eligible and qualified persons as certified by the Civil Service Commissioner," which shall be based on such factors as class of the city where the vacancy occurs, seniority, efficiency rating, extra-ordinary qualifications, etc. The import of this special provision is that the filling of the positions of the office heads and assistant heads is to be governed by this special rule, unencumbered by the civil service rule on the preferential right of the next-in-rank and others seeking transfer, reinstatement or reemployment in order to give the City Mayor a wide latitude in the choice of key officials. ... Answering the memorandum of the Secretary of Justice, Subido contended in his own memorandum to the President of October 14, 1968 that section 23 of the Civil Service Act does not conflict with the provisions of the Police Act of 1966. "In fact, it was incorporated verbatim in the Police Manual. But what is important is that the filling of positions in the

police service including that of Chief of Police in accordance with the procedure outlined in paragraph 3 of Sec. 23 of Republic Act 2260 in relation to Sec. 4 of the Decentralization Act (Rep. Act 5185) would strengthen the police service. Vice versa, leaving the matter of promotion solely to the discretion of the Mayor without regard to the order of priorities contained in the Civil Service Law, would result in its demoralization." Nor did he think the mayor's reasons for bypassing Pineda to be valid, considering that just a few months before the mayor had appointed Pineda deputy chief of police. "If Mr. Pineda can qualify as Deputy Chief of Police in the Mayor's estimation (and thus under Sec. 17 of the Police Act, he shall automatically assume the office of Chief of Police in case a temporary vacancy occurs in said office), how can Mayor Claudio now claim in all sincerity that Mr. Pineda is not qualified to be chief of Police?" Respondents Claudio and Villa point out, on the other hand, that Subido should be held in estoppel on the basis of his approval of the very appointment of Pineda as deputy chief of police of Pasay City, where no list of those with "preferential rights" and no inquiry as to the mayor's reasons for not appointing the police officer next-in-rank in the Pasay City police department was made; and that advising the mayor that "the filling of the vacancy for Deputy Chief of Police is governed by Section 4, R.A. 5185," Subido merely issued a certification, containing the names of "five ranking qualified and eligible persons" including Pineda, and evidently did not consider as applicable the provisions on preferences of Section 23 of the Civil Service Act nor the ruling in Millares v. Subido 1now invoked by him. Subido admitted in his reply that Memorandum Circular No. 1, S. 1968, dated January 12, 1968, under which he issued "priorities," "overlooked the Millares case and relied solely on the provision of Sec. 4, Rep. Act 5185," but averred that later, after having become convinced that the Millares ruling was applicable to the filling of vacancies of heads and assistant heads of local offices under the Decentralization Law, he issued Memorandum Circular No. 21, S. 1968, dated September 5, 1968, providing for such procedure of priorities, which was the procedure in force as of the date the appointment of Villa was received in his office. As no solution to the impasse was in sight, Pineda filed the present action, contending that, under section 23 of the Civil Service Act, as interpreted in Millares, in relation to Section 4 of the Decentralization Act, it is the duty of the mayor to promote him as the ranking employee, and that only if for some "special reasons" he cannot be promoted may others be considered for transfer, reemployment or certification, "in that order". On the other hand, Claudio's position is that what controls is not section 23 of the Civil Service Act but section 8 of the Police Act of 1966, which states that a chief of police may be appointed "from the list of eligibles certified by the Civil Service Commissioner". As Villa is one of these certified, Claudio concludes that his appointment as chief of police is in order. Section 17 of the Police Act of 1966 expressly provides that "In case of vacancy caused by death, retirement, resignation, suspension or removal in a local police agency, the mayor shall fill such vacancy asprovided for in this Act," obviously referring to Section 8 thereof will states that "appointment to a local police agency shall be made by a mayor from the list of eligibles certified by the Civil Service Commission." The validity of Villa's appointment, because he is one of those mentioned in the certified list of eligibles, as required by the Police Act of 1966, could be here and now sustained, without need of further discussion, were it not for the subsequent enactment in 1967 of the Decentralization Act, particularly, Section 4 thereof, which provides:

Appointment of Heads, Assistant Heads of Local Offices and Their Subordinates. The Provincial Assessor, Provincial Agriculturist and other heads of offices entirely paid out of provincial funds and their respective assistants shall, subject to civil service law, rules and regulations, be appointed by the Provincial Governor: Provided, however, That this section shall not apply to Judges, Auditors, Fiscals, Division Superintendents of Schools, Supervisors, Principals, Provincial Treasurers, Provincial Health Officers and District Engineers. The City Assessor, City Agriculturist, City Chief of Police and City Chief of Fire Department and other heads of offices entirely paid out of city funds and their respective assistants or deputies shall, subject to civil service law, rules and regulations, be appointed by the City Mayor: Provided, however, That this section shall not apply to Judges, Auditors, Fiscals, City Superintendents of Schools, Supervisors, Principals, City Treasurers, City Health Officers and City Engineers. xxx xxx xxx

not next-in-rank employee and he has not passed the Civil Service examination for Chief of Police? The respondents Claudio and Villa formulate the issues, thus: (1) Is the appointment of the Chief of Police of Pasay City to be regulated by Section 8 of the Police Act of 1966, or by Section 4 of the Decentralization Act and the third paragraph of Section 23 of the Civil Service Law? (2) If the appointment of the Chief of Police of Pasay City is subject to the provisions of section 4 of the Decentralization Act, is it mandatory that respondent Mayor appoint Petitioner to the position? The respondent Subido, in his Answer, "submits the matter to the judicious consideration of this Honorable Court," emphasizing the urgency of the resolution of the legal issues presented, "considering that the questioned appointment of respondent Francisco A. Villa would be the first appointment under the Decentralization Act and any decision thereon would guide the future action of the Civil Service Commission and other offices concerned in the application of said law." The first two paragraphs of Section 23 of the Civil Service Act (the third paragraph we have already reproduced above, supra), read together with Section 1 of Article XII of the Philippine Constitution which directs that "[A]ppointments in the Civil Service ... shall be made only according to merit and fitness, to be determined as far as practicable by competitive examinations," provide the key for the proper application and interpretation of the "next-in-rank" rule enunciated in the third paragraph of said Sec. 23. These first two paragraphs set the guide norm that: SEC. 23. Recruitment and Selection of Employees. Opportunity for government employment shall be open to all qualified citizens and positive efforts shall be exerted to attract the best qualified to enter the service. Employees shall be selected on the basis of their fitness to perform the duties and assume the responsibilities of the positions whether in the competitive or classified or in the non-competitive or unclassified service. (Emphasis supplied) The granting of equal opportunity for government employment to all qualified citizens and the exertion of positive efforts to attract the best qualified to enter the service may be implemented effectively only through the judicious exercise of the best judgment and discretion of the appointing authority. Resolving the issue squarely presented, we hold that it is neither mandatory nor ministerial for the mayor of Pasay City to promote to the vacant position of chief of police the incumbent deputy chief of police Pineda, and that the appointment to said position of the respondent Villa, who has been certified as qualified and eligible, although an "outsider" and not the next-in-rank employee, is valid, in the same manner that the appointment of Pineda, although an "outsider" and not the next-in-rank, to the position of deputy chief of police was valid.

In case of vacancies in the offices of heads and assistant heads of local offices, the governor or mayor shall fill them by appointing from a list of the five next ranking eligible and qualified persons as certified by the Civil Service Commissioner: Provided, That these five persons shall have stated beforehand that they will assume the position if appointed. The ranking shall be based on such factors as class of province, city or municipality where the vacancy occurs, seniority, efficiency rating, extraordinary qualifications and other supplementary criteria as may be prescribed by the Civil Service Commission. (R.A. 5185) The pertinent provisions thereof to the effect that the heads of offices entirely paid out of city funds, including the chiefs of police, and their assistants or deputies, shall, "subject to civil service law, rules and regulations, be appointed by the City Mayor" and that the mayor "shall fill them by appointment from a list of the five next ranking eligible and qualified persons as certified by the Civil Service Commissioner," throw us right back to the basic Civil Service Act. It behooves us, specifically, to determine the scope and meaning of the provisions of Section 23 which deal with the "Recruitment and Selection of Employees." The contending parties have thus thrust upon this Court the basic issue of the proper application and scope of Section 23 of the Civil Service Act in relation to the provisions of the Decentralization Act of 1967 and the Police Act of 1966. The petitioner states the issues as follows: (1) Is it mandatory and ministerial upon the Mayor of Pasay City to promote to the vacant position of Chief of Police, a competitive position, petitioner Pineda, the incumbent Deputy Chief of Police, who is the competent and qualified next-in-rank employee with the appropriate civil service eligibility? (2) Is respondent Mayor's appointment of respondent Villa to the said classified position of Chief of Police null and void, considering that he is an outsider, he is

The Civil Service Act does not peremptorily require the mayor to promote the officer next in rank. Section 23 thereof does not require that vacancies must be filled by promotion, transfer, reinstatement, reemployment or certification, in that order. That would be to construe the provision not merely as a legislative prescription of qualifications but as a legislative appointment, repugnant to the Constitution. What it does purport to say is that as far as practicable the person next in rank should be promoted, otherwise the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible which is the basic requirement of the Civil Service Act, as well as of the Police Act and the Decentralization Law. To construe section 23 the way the petitioner urges it should be, would be to unduly interfere with the power and prerogatives of the local executive as reinforced by the Decentralization Act at the same time that it would frustrate the policy of the Police Act "to achieve and attain a higher degree of efficiency in the organization, administration, and operation of local police agencies" 2 and that of the Civil Service Act "to attract the best qualified to enter the service." For it is not enough that an aspirant is qualified and eligible or that he is next in rank or line for promotion, albeit by passive prescription. It is just as necessary, in order for public administration to be dynamic and responsive to the needs of the times, that the local executive be local the choice of men of his confidence, provided they are qualified and eligible, who in his best estimation are possessed of the requisite reputation, integrity, knowledgeability, energy and judgment. After all, it is the local executive, more than anyone else, who is primarily responsible for efficient governmental administration in the locality and the effective maintenance of peace and order therein, and is directly answerable to the people who elected him. Nowhere is this more true than in the sensitive area of police administration. True it is that in Millares, 3 this Court, referring to section 23 of the Civil Service Act, made the following statement: In other words, a vacant position (be it new or created by the cessation of an incumbent in office) shall be filed by promotion of the ranking officer or employee, who is competent and qualified to hold the same. And only where, for special reason or reasons of which the affected officer or employee will be notified, this mode of recruitment or selection cannot be observed, that the position may be filled either by transfer, or reemployment, or by getting from the certified list of appropriate eligibles, in that order. But that statement was not necessary, considering that, in the language of the decision itself, "no evidence was presented that there were ranking employees in the office of the City Mayor affected by the appointment of appellee to the position involved herein." There was therefore no occasion for the application of section 23 to that case. Here, the question is squarely presented, 4 and we now rule that the principle of seniority and the next-in-rank rule embodied in section 23, with its corollary requirement to set forth the "special reason or reasons" in case the officer next in rank is not appointed to the vacant position, applies only to cases of promotion. Hence, where the appointing power chooses to fill the vacancy not by promotion but by transfer, reinstatement, reemployment or certification (not necessarily in that order, as we have already said) he is under no duty whatsoever to explain his action, for the law does not so require him. The reason for this distinction is simple. When a person who is a junior jumps over his senior, the ranking is disturbed and the person next in rank is actually bypassed, and so it is reasonable to require

the appointing power to give his "special reason or reasons" for preferring his appointee to the officer next-in-rank. But where the vacancy is filled not by promotion but by transfer, the person next-in-rank is not really bypassed because the person appointed is one who holds a position of equivalent rank as the vacant position. To the appointee, the new position is hardly a higher one. As this Court correctly observed in Millares, in distinguishing promotion from transfer, "whereas the first denotes a scalar ascent of a senior officer or employee to another position, higher either in rank or salary, the second refers to a lateral movement from one position to another of equivalent rank, level or salary." 5 The same reasoning applies when the person chosen to fill the vacancy is merely being reinstated to, or reemployed in, the position which he formerly held. For it is obvious that in this case such person is the senior of the one who at the moment is next in rank. As for the person chosen by certification, it may be said that he has never been rated before and so he can be said neither to be below nor above the ranking employee in the hierarchy. It may be added that there is no valid or cogent reason to consider it mandatory and ministerial that the filling of vacancies be by promotion, transfer, reinstatement or reemployment, and certification, in that order. There is no legal fiat that those next in rank for promotion are more fit and meritorious for appointment than those moved by transfer from another unit or department, and that those applying for transfer should have "preference" to those seeking reinstatement, and the latter in turn to those who are duly certified eligibles. From the perspective of practical experience, it cannot be doubted that some next-in-rank officers or employees have risen to their seniority slots through mere passivity. And as a matter of policy, those who have previously resigned to avoid investigation of involvement in irregularities in office should certainly not be allowed to invoke "preference" when they subsequently seek reinstatement or reemployment. The only way to determine such fitness would be to hold a competitive examination among all applicants every time a vacancy occurs, which would be completely disruptive of the public service. Our Constitution recognized this and hence provided that appointments be made according to merit and fitness, to be determined only as far as practicable by competitive examination. Hence, our system of qualification through periodic appropriate examinations. Among those qualified and eligible, the appointing authority is granted the discretion and prerogative of choice of the one he deems most fit for appointment. This is not to say that seniority and rank are of no consequence. The Civil Service Act does direct, as we construe it, that as far as practicable the next in rank should be among the first considered for the vacancy, if qualified and eligible, and requires that when the vacancy is filled by promotion, the appointing authority must give the "special reason or reasons" for by passing the next-in-rank. But such official cannot claim any preferential right to appointment to the vacancy over others equally certified to be qualified and eligible for appointment by transfer, reinstatement or reemployment, or by appropriate certification, just as those applying for transfer cannot claim preference over those seeking reinstatement, etc., nor subject the appointing authority's reasons for his choice to final review and decision by the Civil Service Commissioner. To so hold as the petitioner and the respondent Commissioner contend, would be to invalidly substitute the judgment of the Commissioner of Civil Service for that of the appointing authority, in whom the prerogative of free choice resides. More, in the present case, Subido's action of questioning respondent Claudio's sincerity in not appointing petitioner to the vacant position of chief of police when he had appointed him (Pineda) as deputy chief of police just a few months before, projects the pitfalls of such a theory which would in some cases permit unauthorized interference by the Commissioner of Civil Service with the appointing authority's free exercise of his judgment and prerogative of free choice.

Of course, where there is unequivocally demonstrated an arbitrary and improvident exercise of the power of the appointing authority, as will constitute a denial of due process of law, to paraphrase the Court's ruling inMorrero v. Bocar, 6 such as where the qualifications, merit, experience and competence of an official next in rank for promotion are widely disparate over those of the actual appointee, proper remedy through judicial review would be available. For due process recognizes the free exercise by the executive of his prerogatives under the Constitution and the laws but rules out arbitrariness and oppression. 7 We do not of course lose sight of the fact that Section 4 of the Decentralization Act of 1967 does provide that In cases of vacancies in the offices of heads and assistant heads of local offices, the governor or mayor shall fill them by appointment from a list of the five next ranking eligible and qualified persons as certified by the Civil Service Commission. ... Reading this provision in the light of the Civil Service Act, the meaning emerges that in each class the Commissioner must certify, whenever there are available, five ranking, qualified and eligible persons. Thus, the Commissioner whenever practicable and possible, must certify five qualified and eligible persons for each area, i.e., five such persons for promotion, five such persons for transfer, and so on. And this has been properly implemented by the respondent Commissioner in his last Memorandum Circular No. 21, S. of 1968, dated September 5, 1968, where he announced that his office would certify not more than five eligibles and qualified persons in each list as follows: "(a) promotion list; (b) transfer list; (c) reinstatement/reemployment list; and (d) list of appropriate eligibles," 8 although he erroneously assigned priority thereto in that order, whereas we have above ruled that there is no such order of priority amongst the four said areas. We, therefore, hold that in the event of there occurring a vacancy, the officer next in rank must, as far as practicable and as the appointing authority sees fit in his best judgment and estimation, be promoted, otherwise the vacancy may be filled either by transfer, reinstatement, reemployment or certification not necessarily in that order and that it is only in cases of promotion, where an employee other than the ranking one is appointed, is the appointing power under duty to give "special reason or reasons" for his action to the Civil Service Commissioner, as provided in Section 23, third paragraph, of the Civil Service Act. As there is no question that the respondent Villa has been certified to be qualified and eligible, it is well within the ambit of the power of the respondent Claudio to appoint him chief of police of Pasay City. Consequently, the respondent Claudio owes the petitioner no duty to extend to him a promotional appointment, the performance of which may be compelled by mandamus. ACCORDINGLY, the petition for mandamus is denied, without pronouncement as to costs. A.M No. P-04-1925 December 16, 2004

DECISION PANGANIBAN, J.: Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, government employees must faithfully adhere to, hold sacred and render inviolate the constitutional principle that a public office is a public trust; that all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.1 The Case This case originated from a Complaint lodged by the court employees of the Office of the Clerk of Court (OCC) of the Regional Trial Court (RTC) of San Carlos City, Pangasinan, against Oscar T. Llamas, cash clerk II of the same Office, charging respondent with discourteous, disrespectful and unbecoming conduct. The Complaint had initially been referred for investigation, report and recommendation to Dagupan City RTC Judge Luis M. Fontanilla, who prayed for and was granted inhibition from hearing the case2 on the ground that two of the signatories of the Complaint were close to him. The case was thereafter referred to Vice-Executive Judge Silverio Q. Castillo of the same RTC,3 who likewise prayed for and was granted, on justifiable grounds, inhibition therefrom.4 The case was finally referred to Judge Crispin C. Laron of the Dagupan RTC, Branch 43.5 The Facts In a letter addressed to Chief Justice Hilario G. Davide Jr. dated January 25, 2000, herein complainants,6 all of whom are employed in the Office of the Clerk of Court of the RTC of San Carlos City, Pangasinan, labeled respondent as a "troublesome and arrogant court employee." Respondent Oscar Llamas is a brother of Judge Victor T. Llamas, who used to preside over Branch 56 of the San Carlos RTC. Animosity between Judge Llamas and the OCC personnel started when the latter, headed by Atty. Omega L. Moises, testified in an immorality case filed against the former. Respondent sympathized with his brother and showed hostility towards his co-employees. During the hearing of the instant administrative Complaint, Gemma F. Adriano -- one of the complainants -- testified that while inside the office, respondent showed signs of belligerence towards the other employees by slamming his drawer, the window jalousies, as well as the stapler and the puncher. There were occasions when he would look at them with a hostile expression that would cause anxiety to three female employees who happened to be in the office at the time. According to Adriano, respondent also became disrespectful to Atty. Moises by acting belligerently even in the latters presence. He would also frequently leave the office without permission, only to be seen drinking wine with his brother-judge during office hours. With the

COURT PERSONNEL OF THE OFFICE OF THE CLERK OF COURT OF THE REGIONAL TRIAL COURT-San Carlos City, complainants, vs. OSCAR LLAMAS, respondent.

rising tension in the office, complainants finally decided to file a Complaint against respondent. From then on, he refused to talk to them. Myrna de la Cruz, a utility worker, testified that sometime in May of 1998, she had looked for Oscar Llamas within the court premises, because a person was asking for him in connection with some cadastral cases. While going down the stairs of the Hall of Justice, Cruz sprained her foot. She finally found him drinking liquor at Annies Canteen, where he allegedly had the habit of drinking with other court personnel and with litigants. She thus felt relieved when he was transferred to the Dagupan RTC. Manuel de Guzman corroborated the testimony of his-co-complainants. He said that on January 15, 2000 (a Saturday), while on duty, respondent challenged the brother of Atty. Moises to a fistfight. On the same occasion, respondent called her (Atty. Moises) a traitor for causing the withholding of his Judiciary Development Fund (JDF) allowance for the last quarter of 1999. Apparently, she had indicated his frequent absences in his Daily Time Report (DTR), thereby preventing him from receiving the allowance. Atty. Moises added that respondent had been the cash clerk of the Office of the Clerk of Court from 1997 to 2001 until his transfer to the Municipal Trial Court in Cities (Branch 1) of Dagupan in May 2001. She corroborated the testimony of the other complainants by saying that his attitude was probably due to the fact that some of her friends at the RTC (Branch 57) had filed charges against his brother, Judge Victor T. Llamas, for immorality and grave misconduct. Atty. Moises repeatedly warned respondent about his unprofessional attitude in no less than three Memoranda. The first Memorandum called his attention to his drinking sessions during office hours and his highly hostile attitude. She would always request a member of her staff to call him whenever he was drinking outside the Justice Hall. The second Memorandum, dated December 2000, called the attention of respondent to his tardiness and frequent absences. Atty. Moises introduced in evidence several documents showing that due to his absences and tardiness, he did not receive his productivity bonus for two years, from 1997 to 1999; his JDF allowance for the last quarter of 1999; and his salary for February 2000. He was also required to refund the sum of P5,000 for the month of March 2000. The payroll showed that, for the separate periods July 1 to 15 and November 1 to 15, the sums of P3,845.92 and P801.03, respectively, were deducted from his salary. Atty. Moises testified further that on November 22, 1999, respondent altered his leave form by making it appear that he had applied for a leave from November 22 to December 2, 1999; actually, his application was only for November 23 and 24, 1999. Upon discovering the alteration, she issued forthwith the third Memorandum dated December 8, 1999. Respondent did not appear during the hearing, but submitted his Counter-Affidavit with Position Paper,7 basically denying the allegations leveled against him. He asserted that he was a quiet, humble, hardworking and cooperative employee, who performed any task assigned to him. He explained his absences by saying that he had to drive his brother, Judge Llamas, to Manila where the hearing of the immorality case was being conducted. Respondent denied ever drinking alcohol during office hours, alleging that the charges against him were bereft of evidence and had no basis whatsoever. He also attached an Affidavit executed by Jose P. Cabugao, one of the complainants. Cabugao said therein that

he had been deceived into signing the Letter-Complaint against respondent. Allegedly, complainants had been convincing other court employees to join them in their effort to destroy the reputation of Judge Llamas. Respondent also attached his letter to Chief Justice Hilario G. Davide Jr. dated November 18, 1999, requesting that the former be detailed to Dagupan City because of the hostile acts of some of herein complainants -- Atty. Moises, Emmanuel Lacandola, Manuel Marquez and Angelito Dispo. Such acts allegedly included repeatedly spitting on the desk of respondent, placing his chair on top of his desk upside down, carrying firearms inside the office, making threatening remarks against him, staring provocatively, and slamming doors or desk drawers when he was around. Respondent pointed out that the prayer for his detail or transfer had become moot in view of his transfer to the Metropolitan Trial Court of Dagupan City and his subsequent resignation from the judiciary. He added, "Granting, without necessarily admitting that [he] is guilty of misconduct, the maximum penalty imposable would be dismissal from service [which] would not be possible for the reason that respondent had already resigned from his position." 8 Evaluation and Office of the Court Administrator Recommendation of the

The Office of the Court Administrator (OCA) found the acts attributed to respondent supported by substantial evidence. It opined that "[a] cash clerk, being a judicial employee, is expected to act with prudence, restraint, courtesy and dignity. Deviation from these salutary norms undeniably constitutes misconduct prejudicial to the best interest of the service."9 The OCA asked the Court to adopt the recommendation of Investigating Judge Crispin C. Laron that respondent be dismissed from service. The Courts Ruling We agree with the findings of the OCA, but modify the penalty. Administrative Liability The acts described in the Complaint, the testimony of complainants, and the OCAs findings of fact can be lumped into the following categories: 1) discourtesy and disrespect to superiors and co-employees, 2) alcohol drinking, during office hours, 3) tardiness, 4) absenteeism and 5) falsification of the leave form. The Court notes that respondent never successfully disputed any of the foregoing charges against him. His Answer contained mere blanket denials and countercharges against complainants. While he dismissed the Complaint by alleging that it was only a malicious plot to discredit him, the Court cannot turn a blind eye to the strong evidence they have piled up against him. In her December 2, 1999 Memorandum addressed to respondent, Atty. Moises called his attention to the number of absences he had incurred since January 1999, totaling 48 as well as to 20 instances of his tardiness.10 In another Memorandum dated May 26, 1998, she reminded him that drinking liquor during office hours was considered an offense under the Civil Service Law; thus, she directed him to observe working hours and official time. 11

As regards the charge of drunkenness during official time, its veracity is difficult to determine under the circumstances. Respondent attached to his Answer the Affidavits of denial executed by the canteen-owners12 in whose stores he allegedly had his drinking sprees. Nonetheless, he could not explain away the deductions in his salary or his failure to receive his JDF and productivity pay, which had allegedly been caused by his frequent absences and tardiness. As a result of these and of his loitering around the premises of the Hall of Justice even during office hours, his co-workers had to take over and perform his designated tasks. His explanation that he incurred his absences while driving for his brother-judge deserves short shrift. As a public servant, the former owes his loyalty, not to his brother or to any other family member; but, rather, to the institution of which respondent is a part and, ultimately, to the public he is sworn to serve. In the third Memorandum dated December 9, 1999, Atty. Moises further called the attention of respondent to the unauthorized alterations or erasures in his leave form. 13 He was never able to refute the foregoing charges. However, his allegation that he applied for a leave during the dates specified, when in truth and in fact he did not, does not amount to serious dishonesty. He made the alterations to reflect the number of absences he had actually incurred, albeit without the approval of his immediate supervisor. Nevertheless, such act constitutes misconduct.14 Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, they must faithfully adhere to, hold sacred and render inviolate the constitutional principle that a public office is a public trust; that all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.15 Neither did respondent deny his brash behavior bordering on discourtesy and disrespect for Atty. Moises. By banging doors and windows, slamming office supplies, and staring at everyone with belligerence, he displayed conduct unbecoming a court employee; it degraded the dignity of the judiciary and undermined the peoples faith and confidence in it. At all times, employees of the judiciary are expected to accord respect to the person and the rights of another, even a co-employee. Their every act and word should be characterized by prudence, restraint, courtesy and dignity. Government service is people-oriented; highstrung and belligerent behavior has no place therein.16 Rude and hostile behavior often translates a personal conflict into a potent pollutant of an otherwise peaceful work environment; ultimately, it affects the quality of service that the office renders to the public. Letting personal hatred affect public performance is a violation of the principle enshrined in the Code of Conduct and Ethical Standards for Public Officials and Employees, a principle that demands that public interest be upheld over personal ones. 17 Improper behavior especially during office hours exhibits not only a paucity of professionalism at the workplace, but also great disrespect for the court itself. Such demeanor is a failure of circumspection demanded of every public official and employee.18 Thus, the Court looks "with great disfavor upon any display of animosity by any court employee"19 and exhorts every court personnel to act with strict propriety and proper decorum to earn public trust for the judiciary. Colleagues in the judiciary, including those occupying the lowliest position, are entitled to basic courtesy and respect. 20

In discharging its constitutional duty of supervising lower courts and their personnel, this Court cannot ignore the fact that the judiciary is composed essentially of human beings who have differing personalities, outlooks and attitudes; and who are naturally vulnerable to human weaknesses.21 Nevertheless, the Code of Judicial Ethics mandates that court personnel must not only be, but also be perceived to be, free from any impropriety -- with respect not only to their duties in the judicial branch, but also to their behavior anywhere else.22 Sufficiently proven were the following charges: 1) frequent unauthorized absences, loafing or frequent unauthorized absences from duty during regular office hours and 2) gross discourtesy in the course of official duties. Under Civil Service Rules and Regulations, the first carries with it, upon its first commission, the minimum penalty of suspension for six months and one day; the second, the minimum penalty of suspension for one month and one day.23 That respondent considers himself resigned from the service is of no consequence to the charges against him. The jurisdiction of the Court was acquired at the time of the filing of the Complaint; it was not lost by the resignation of respondent from his office during the pendency of the case.24 In our Resolution dated July 14, 2003, we held thus: "Considering the Court Administrators Memorandum dated June 18, 2003, on the letter of respondent stating that he had already resigned as Cash Clerk II in the Office of the Clerk of Court, Regional Trial Court, San Carlos City, Pangasinan (detailed in Municipal Trial Court in Cities, Dagupan City, Branch I) effective September 30, 2002 and inquiring among others, whether the instant administrative case should still be investigated, reporting as follows: "Section 1, Rule XII of the Omnibus Rules on Appointments and other Personnel Actions (CSC M.C. No. 40, s. 1998) provides: "An officer or employee under investigation may be allowed to resign pending decision of his case without prejudice to the continuation of the proceedings until finally terminated. "Finally, while indeed respondent tendered his resignation on September 30, 2002, verification from the Administrative Service, Office of the Court Administrator, indicates that the resignation of Mr. Llamas has not been accepted or acted upon." Since respondent has not been reporting for work and considers himself resigned from the service, the penalty of suspension is no longer viable. Thus, in lieu of suspension, the penalty of fine equivalent to his salary for a period of six months may be imposed.25 This ruling is in line with Section 19 of the Omnibus Rules Implementing Book V of Executive Order No. 292, which provides: "The penalty of transfer, or demotion, or fine may be imposed instead of suspension from one month and one day to one year except in case of fine which shall not exceed six months."

WHEREFORE, Oscar T. Llamas is found GUILTY of frequent unauthorized absences, loafing or frequent unauthorized absences from duty during regular office hours, and gross discourtesy in the performance of official duties, for which he is hereby ORDERED to PAY a fine equivalent to his salary for six (6) months. This sum may be taken from whatever sums may be due him as retirement, leaves or other benefits. SO ORDERED. Sandoval-Gutierrez, Corona, J., on leave Carpio-Morales, and Garcia, JJ., concur.

Respectfully forwarded to the Chief, MMBWD, This Port, the within papers relative to the request of MAGLEI ENTERPRISES CO., to establish and operate a Customs Manufacturing Bonded Warehouse, pursuant to CMO 39-91, to be located at 129 Jose Bautista St., Caloocan City, together with the attached report submitted by CBW Supervisor J. A. Baliwag of this Office, inviting attention to the recommendation stated therein to which the undersigned concurs.

(Sgd.) G.R. No. 154155 August 6, 2008 Atty. Ben Chief Warehousing Inspection Division5 C. Jurado

THE OMBUDSMAN, petitioner, vs. BEN C. JURADO, respondent. DECISION REYES, R.T., J.: NO less than Our Constitution guarantees the right not just to a speedy trial but to the speedy disposition of cases.1 However, it needs to be underscored that speedy disposition is a relative and flexible concept. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case.2 This is a petition for review on certiorari of the Decision of the Court of Appeals (CA) in CAG.R. SP No. 58925. The CA reversed and set aside the decision and resolution of the Ombudsman finding respondent Bureau of Customs Division Chief administratively liable for neglect of duty, penalizing him with suspension for six months without pay. The Facts Sometime in 1992, Maglei Enterprises Co., (Maglei), a partnership owned by Rose Cuyos and John Elvin C. Medina, filed an application before the Bureau of Customs for the operation of a Customs Bonded Warehouse (CBW)-Manufacturing Warehouse. As part of the evaluation of Magleis application, CBW Supervisor Juanito A. Baliwag conducted an inspection of Magleis compliance with structural requirements. Baliwag submitted a report4 recommending approval of the application. On March 16, 1992, respondent Jurado, who was then the Chief of the Warehouse Inspection Division, adopted the recommendation of Baliwag. Then he indorsed the papers of Maglei to the Chief of the Miscellaneous Manufacturing Bonded Warehouse Division (MMBWD). The indorsement letter, in full, reads: 1st Indorsement 16 March 1992
3

Magleis application was submitted to Rolando A. Mendoza, Chief of the MMBWD for his comment and recommendation. In a Memorandum (for the District Collector of Customs) dated March 20, 1992, Mendoza reported that Maglei has substantially complied with the physical and documentary requirements relative to their application for the operation of a Customs Bonded Warehouse. Mendoza further recommended that Magleis application be approved. Following the indorsements of the different divisions of the Bureau of Customs Emma M. Rosqueta (District Collector of Customs); Titus B. Villanueva (Deputy Commissioner for Assessment and Operations); and Atty. Alex Gaticales (Executive Director of the Customs SGS Import Valuation and Classification Committee) Magleis application was recommended for approval. On June 25, 1992, Maglei was finally granted the authority to establish and operate CBW No. M-1467 located at 129 J. Bautista, Caloocan City. By virtue of such authority, Maglei imported various textile materials which were then transferred to the said warehouse. The textiles were to be manufactured into car covers for exportation. Subsequently, on July 8 and 22, 1992, MMBWD Senior Storekeeper Account Officer George O. Dizon was tasked by MMBWD Chief Mendoza to check and verify the status of Magleis CBW. Dizon reported that the subject CBW was existing and operating. However, upon further verification by the Bureau of Customs, it was discovered that the purported CBW of Maglei did not exist at the alleged site in Caloocan City. Rather, what was reported located at the site was a School of the Divine Mercy. Only a small signboard bearing the name "Maglei Enterprises Company" was posted inconspicuously in the corner of the lot. Further investigation revealed that Magleis shipment of textile materials disappeared, without proof of the materials being exported or the corresponding taxes being paid. Ombudsman Disposition On August 11, 1992, the Bureau of Customs initiated a complaint against George P. Dizon, Rose Cuyos and John Elvin C. Medina for prosecution under the Tariff and Customs Code. After receiving a copy of the resolution, the Ombudsman conducted the investigation on the complaint.

On February 13, 1996, the Evaluation and Preliminary Investigation Bureau (EPIB) of the Office of the Ombudsman (OMB) recommended that the Resolution of the Bureau of Customs be reversed. The EPIB further recommended that the complaint against George P. Dizon be dismissed and another one be filed against Emma Rosqueta and Atty. Rolando Mendoza, subject to further fact-finding investigation by the Fact Finding Bureau (FFB) of the OMB. With regard to the case against Rose Cuyos and John Medina, the EPIB recommended that the charges be taken up together with those of Rosqueta and Atty. Mendoza. The case was then forwarded to the FFB. On September 29, 1997, the FFB submitted its report with the following recommendations: WHEREFORE, premises considered; the undersigned investigators respectfully recommend the following: 1. That criminal charges for violation of Section 3(e) of RA 3019 and Section 3081 of the Tariff and Customs Code be filed against the following officials namely: a. Emma M. Rosqueta Director Collector, Port of Manila b. Rolando A. Mendoza Chief, Miscellaneous Manufacturing Bonded Warehouse Division c. Alex Gaticales Executive Staff, Deputy Commissioner d. Ben C. Jurado Chief, Warehouse Inspection Division CBW Supervisor e. Juanito A. Baliwag CBW Supervisor f. George P. Dizon Senior Storekeeper All of the Bureau of Customs, and

On October 17, 1997, the OMB approved the above recommendation. On August 2, 1999, the OMB dismissed the criminal complaint for falsification of public documents and violation of Section 3(e) of Republic Act (R.A.) No. 3019 and Section 3601 of the Tariff and Customs Code filed against respondent. The complaint was dismissed on the ground of lack of prima facieevidence to charge respondent of the crime. On the other hand, on August 16, 1999, the Administrative Adjudication Bureau (AAB) of the OMB rendered judgment finding respondent administratively liable, penalizing him with suspension for six (6) months without pay. Respondents motion for reconsideration of his suspension was likewise denied by the Ombudsman. Aggrieved, respondent appealed to the CA. In his appeal, respondent argued, among others, that his right to a speedy disposition of his case had been violated; that the administrative case against him should have been dismissed following the dismissal of the criminal charges against him; and that there is no substantial evidence on record to make him administratively liable. CA Disposition In a Decision dated July 3, 2002, the CA reversed and set aside the questioned decision and resolution of the OMB. The dispositive part of the CA decision runs in this wise: Foregoing premises considered, the Petition is GIVEN DUE COURSE. Resultantly, the challenged Decision/Resolution of the Ombudsman is hereby REVERSED and SET ASIDE. No costs. SO ORDERED.7 In ruling in favor of respondent, the appellate court ratiocinated: Indeed, we are in accord with Petitioners arguments that his right to speedy disposition of cases had been violated. To be sure, Section 16, Article III of the 1987 Constitution provides thus: "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies." xxxx

g. Rose Cuyos and John Elvin C. Medina Owner, Maglei Enterprises Private Respondents 2. That records of this case be forwarded to the EPIB, this Office for the conduct of the required preliminary investigation 3. That administrative charges for dishonesty and gross misconduct be likewise filed against the above-named BOC officials before the AAB, this Office.6

In the case at bench, the incident which gave rise to the complaint against Petitioner happened on March 16, 1992. And yet it was only on November 20, 1997 or a lapse of more than five (5) years that the case relative to the said incident was filed against him. Records disclose that on August 11, 1992, the complaint only charged George O. Dizon and 2 others. Then on February 13, 1996 or after almost 4 years, the Evaluation and Preliminary Investigation Bureau of the OMB made another recommendation which ultimately included Petitioner as among those to be charged. From February 13, 1996 to November 20, 1997 or a

period of more than one (1) year, what took them so long to decide that Petitioner be included in the charges? From the foregoing unfolding of events, it is quite clear that it took the Ombudsman almost six (6) years to decide that a case be filed against Petitioner. Under such circumstances, We cannot fault Petitioner for invoking violation of his right to speedy disposition of his case. More importantly, We do not agree that Petitioner, under attendant facts and circumstances can be held liable for negligence. First of all, Petitioner as, Deputy Commissioner for Assessment and Operation, did not have the duty to make inspection on the alleged warehouse. Such duty belongs to other personnel/officers. Secondly, in Petitioners 1st Indorsement dated March 22, 1992, he merely stated thus: "Respectfully forwarded to the Chief, MMBWD, This Port, the within papers relative to the request of MAGLEI ENTERPRISES CO., to establish and operate a Customs Manufacturing Bonded Warehouse, pursuant to CMO 39-91, to be located at 129 Jose Bautista St., Caloocan City, together with the attached report submitted by CBW Supervisor J.A. Baliwag of this Office, inviting attention to the recommendation stated therein to which the undersigned concurs." (p. 185, Rollo) A careful reading of said 1st Indorsement undoubtedly shows that Petitioner invited attention to the inspectors (Supervisor Baliwag) qualified recommendation, to wit: "Approval respectfully recommended, subject to re-inspection, before transfer of imported goods." (Underscoring for emphasis.) After Petitioner made the indorsement, he no longer had any participation nor was he under obligation or duty to make a re-inspection. If afterwards damage was suffered, Petitioner cannot be faulted but rather only those who had the duty to make re-inspection. It is precisely because of such fact that the criminal complaint filed against Petitioner did not prosper. Where there is no duty or responsibility, one should not be held liable for neglect, as what has been done to Petitioner. 8 Issues Petitioner Ombudsman now comes to this Court, raising twin issues: I. WHETHER OR NOT RESPONDENTS RIGHT TO SPEEDY TRIAL WAS VIOLATED; II.

WHETHER OR NOT RESPONDENT WAS NEGLIGENT IN THE PERFORMANCE OF HIS DUTY, AS THE CHIEF OF THE WAREHOUSING INSPECTION DIVISION, DESPITE THE FACT THAT HE DID NOT ENSURE THAT THE SUPPOSED WAREHOUSE WAS NOT IN EXISTENCE.9 Our Ruling No violation to speedy disposition of cases. of respondents right

We shall first tackle the issue on speedy disposition of cases. Article III, Section 16 of the Constitution provides that, all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. The constitutional right to a "speedy disposition of cases" is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution, any party to a case may demand expeditious action from all officials who are tasked with the administration of justice.10 It bears stressing that although the Constitution guarantees the right to the speedy disposition of cases, it is a flexible concept. Due regard must be given to the facts and circumstances surrounding each case. The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. 11 Just like the constitutional guarantee of "speedy trial," "speedy disposition of cases" is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. 12 In determining whether or not the right to the speedy disposition of cases has been violated, this Court has laid down the following guidelines: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.13 Gleaned from the foregoing, We find that respondents right to the speedy disposition of cases has not been violated. First. It is undisputed that the FFB of the OMB recommended that respondent together with other officials of the Bureau of Customs be criminally charged for violation of Section 3(e) of R.A. No. 3019 and Section 3601 of the Tariff and Customs Code. The same bureau also recommended that respondent be administratively charged. Prior to the fact-finding report of the FFB of the OMB, respondent was never the subject of any complaint or investigation relating to the incident surrounding Magleis non-existent customs bonded warehouse. In fact, in the original complaint filed by the Bureau of Customs, respondent was not included as one of the parties charged with violation of the Tariff and Customs Code. With respect to respondent, there were no vexatious, capricious, and oppressive delays because he was not made to undergo any investigative proceeding prior to the report and findings of the FFB.

Simply put, prior to the report and recommendation by the FFB that respondent be criminally and administratively charged, respondent was neither investigated nor charged. That respondent was charged only in 1997 while the subject incident occurred in 1992, is not necessarily a violation of his right to the speedy disposition of his case. The record is clear that prior to 1997, respondent had no case to speak of he was not made the subject of any complaint or made to undergo any investigation. As held in Dimayacyac v. Court of Appeals:14 In the Tatad case, there was a hiatus in the proceedings between the termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985. The Court found that "political motivations played a vital role in activating and propelling the prosecutorial process" against then Secretary Francisco S. Tatad. In the Angchangco case, the criminal complaints remained pending in the Office of the Ombudsman for more than six years despite the respondents numerous motions for early resolution and the respondent, who had been retired, was being unreasonably deprived of the fruits of his retirement because of the still unresolved criminal complaints against him. In both cases, we ruled that the period of time that elapsed for the resolution of the cases against the petitioners therein was deemed a violation of the accuseds right to a speedy disposition of cases against them. In the present case, no proof was presented to show any persecution of the accused, political or otherwise, unlike in the Tatad case. There is no showing that petitioner was made to endure any vexatious process during the twoyear period before the filing of the proper informations, unlike in the Angchangco case where petitioner therein was deprived of his retirement benefits for an unreasonably long time. Thus, the circumstances present in theTatad and Angchangco cases justifying the "radical relief" granted by us in said cases are not existent in the present case."15 (Emphasis supplied) Second. Even if We were to reckon the period from when respondent was administratively charged to the point when the Ombudsman found respondent administratively liable, We still find no violation of the right to speedy disposition of cases. In making a determination of what constitutes a violation of the right to the speedy disposition of cases, this Court has time and again employed the balancing test. The balancing test first adopted by the United States Supreme Court in Barker v. Wingo16 was crucial in the Courts resolution of the recent case of Perez v. People:17 The Court went on to adopt a middle ground: the "balancing test," in which "the conduct of both the prosecution and defendant are weighed." Mr. Justice Powell, ponente, explained the concept, thus: A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Closely related to length of delay is the reason the government assigns to justify the delay.Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third factor, the defendants responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendants assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.18 (Underscoring supplied) The Court likewise held in Dela Pea v. Sandiganbayan:19 The concept of speedy disposition is relative or flexible. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are as follows: (1) the length of the delay; (2)

the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.20 To reiterate, there is a violation of the right to speedy disposition of cases when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried.21 In Tatad v. Sandiganbayan,22 this Court found the delay of almost three (3) years in the conduct of the preliminary investigation violative of the rights of the accused to due process and speedy disposition of cases. Said the Court: We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and 1987 Constitution), the inordinate delay is violative of the petitioners constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstances obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and grueling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of the preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time.23 Too, in Angchangco v. Ombudsman,24 this Court ruled that the delay of almost six (6) years in resolving the criminal charges constitutes a violation of the right of the accused to due process and speedy disposition of the cases against them.

Here, the circumstance attendant in Tatad and Angchangco are clearly absent. Records reveal that onSeptember 29, 1997, the FFB of the OMB recommended that respondent be criminally and administratively charged. Subsequently, the OMB approved the recommendation on October 17, 1997. Respondent submitted his counter-affidavit on February 2, 1998 and motion to dismiss on October 8, 1998 before the Administrative Adjudication Bureau of the OMB. On August 16, 1999, the AAB rendered a decision finding petitioner administratively liable for neglect of duty. More or less, a period of two (2) years lapsed from the fact-finding report and recommendation of the FFB until the time that the AAB rendered its assailed decision. To our mind, the time it took the Ombudsman to complete the investigation can hardly be considered an unreasonable and arbitrary delay as to deprive respondent of his constitutional right to the speedy disposition of his case. Further, there is nothing in the records to show that said period was characterized by delay which was vexatious, capricious or oppressive. There was no inordinate delay amounting to a violation of respondents constitutional rights. The assertion of respondent that there was a violation of his right to the speedy disposition of cases against him must necessarily fail. Respondent liable for neglect of duty. administratively

It is elementary that the dismissal of criminal charges will not necessarily result in the dismissal of the administrative complaint based on the same set of facts. 25 The quantum of evidence in order to sustain a conviction for a criminal case is different from the proof needed to find one administratively liable. Rule 133, Section 2 of the Rules of Court provides that for criminal cases, conviction is warranted only when the guilt is proven beyond reasonable doubt. Proof beyond reasonable doubt is defined as moral certainty, or that degree of proof which produces conviction in an unprejudiced mind.26 On the other hand, the quantum of evidence necessary to find an individual administratively liable is substantial evidence. Rule 133, Section 5 of the Rules of Court states: Sec. 5. Substantial evidence. In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Underscoring supplied) Substantial evidence does not necessarily mean preponderant proof as required in ordinary civil cases, but such kind of relevant evidence as a reasonable mind might accept as adequate to support a conclusion or evidence commonly accepted by reasonably prudent men in the conduct of their affairs.27 In Office of the Court Administrator v. Enriquez,28 the Court ruled: x x x Be that as it may, its dismissal of the criminal case on the ground of insufficiency of evidence was never meant, as respondent doggedly believed and arrogantly asserted, to foreclose administrative action against him or to give him a clean bill of health in all respects. The Sandiganbayan, in dismissing the same, was simply saying that the prosecution was unable to prove the guilt of the respondent beyond reasonable doubt, a condition sine qua non for conviction because of the presumption of innocence which the Constitution guarantees an accused. Lack or absence of proof beyond reasonable doubt does not mean an

absence of any evidence whatsoever for there is another class of evidence which, thought insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires in these cases such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.29 Verily, respondent can still be held administratively liable despite the dismissal of the criminal charges against him. We now discuss the administrative liability of respondent for neglect of duty. We opt to reexamine the records considering the divergent findings of the Ombudsman and the CA. It is undisputed that respondent was the Chief of the Warehousing Inspection Division (WID) of the Bureau of Customs. The WID is the inspection and audit arm of the District Collector of Customs. On March 16, 1992, CBW Inspector Baliwag submitted a report to respondent showing the result of the ocular inspection of the proposed warehouse of applicant Maglei. The report stated: "approval respectfully recommended subject to re-inspection before transfer of imported goods is allowed."30 On March 16, 1992, respondent, as Chief of the WID, issued a 1st Indorsement 31 concurring with the recommendation of CBW Inspector Baliwag that the application of Maglei be approved. Respondents indorsement was then submitted to the Chief of the MMBWD for comment and recommendation. The Chief of the MMBWD eventually recommended that Magleis application be approved since it has complied with all the necessary physical and documentary requirements. Following the indorsements of the different divisions of the Bureau of Customs, Maglei was eventually granted the authority to operate a CBW despite the fact that the records disclose that there was no actual warehouse to speak of. Respondent posits that since he was not the approving officer for application for CBWs nor was it his duty or obligation to conduct re-inspection of the subject warehouse premises, he cannot be held liable for neglect of duty. The CA, in its decision, declared that respondent cannot be held liable for negligence for the simple reason that it was not respondents duty to make the inspection and verification of Magleis application. We cannot agree. The finding of the Ombudsman in OMB-ADM-0-97-0656 is more in accord with the evidence on record: Evidence on record shows that on 16 March 1992, respondent Juanito Baliwag (Customs Bonded Warehouse Supervisor) submitted an Inspection Report of the same date showing the result of an ocular inspection of the proposed warehouse

of applicant Maglei Enterprises with the recommendation: "approval respectfully recommended subject to re-inspection before the transfer of imported goods is allowed" and with the observation that construction is going on for compartments for raw materials, finished products and wastages by products. On the same date, 16 March 1992, respondent Ben Jurado (Chief, Warehousing Inspection Division) issued 1stIndorsement concurring with the recommendation of CBW Inspector and co-respondent Juanito Baliwag for the approval of the application. xxxx On 08 July 1992, respondent Rolando Mendoza directed George Dizon (Documents Processor) to verify the existence and operation of several bonded warehouses including the warehouse of applicant Maglei Enterprises. On 23 July 1992, the same George Dizon was again directed by respondent Rolando Mendoza to verify the transfer of shipment covered Boat No. 13853454 in a container van with No. GSTV 824227 to the warehouse of Maglei Enterprises (CBW No. M-1467). In those two occasions, respondent George Dizon reported the existence of the applicants Warehouse located at No. 129 Jose Bautista Avenue, Caloocan City. xxxx Evidence on records likewise revealed that No. 129 Jose Bautista Avenue, Caloocan City which was given as the location address of CBW No. M-1467 is actually the address of a school, that of the School of Divine Mercy. xxxx While respondent Dizon was authorized to verify the existence of Maglei Enterprises Warehouse, it is admitted that he did not even look and see the premises of the alleged warehouse. Likewise, CBW Supervisor and corespondent Baliwag made a report on the existence of the bonded warehouse earlier on 16 March 1992 in his Compliance with Structural Requirements For Customs Bonded Warehouse Inspection Report. Both Dizon and Baliwag reported the existence of the Warehouse in their respective and separate reports. On the basis of the foregoing undisputed facts, it is apparent that the immediate cause of the injury complained of was occasioned not only by the failure of the CBW Inspectors to conduct an ocular inspection of the premises in a manner and in accordance with the existing Customs rules and regulations as well as the failure of their immediate supervisors to verify the accuracy of the reports, but also by subverting the reports by making misrepresentation as to the existence of the warehouse. xxxx Respondent, Ben Jurado, the Chief of the WID, cannot likewise escape liability for Neglect of Duty since his Office is the inspection arm of the District Collector of Customs.32

As adverted to earlier, the Warehousing Inspection Division is the inspection and audit arm of the Bureau of Customs. Respondent Jurado, as chief of the said division, was duty-bound to verify the accuracy of the reports furnished by his subordinates. We agree with the Ombudsman that respondent failed to validate the report of Baliwag and initiate, institute or recommend the conduct of appropriate investigation immediately upon discovery of the irregularity. As a supervisor, respondent was clearly negligent in the performance of his duties. In Philippine Gamefowl Commission v. Intermediate Appellate Court,33 defined the power of supervision as "overseeing or the power or authority of an officer to see that their subordinate officials perform their duties."34 The Court added that in case the subordinate fails or neglects to fulfill his or her duties, it is the supervisors responsibility to take such action or steps as prescribed by law to make them perform their duties. 35 The doctrine was reiterated in Deang v. Intermediate Appellate Court36 and Municipality of Malolos v. Libangang Malolos, Inc.37 It bears stressing that public office is a public trust.38 When a public officer takes his oath of office, he binds himself to perform the duties of his office faithfully and to use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of his duties, he is to use that prudence, caution and attention which careful men use in the management of their affairs.39 Public officials and employees are therefore expected to act with utmost diligence and care in discharging the duties and functions of their office. Unfortunately, respondent failed to measure up to this standard. Clearly, respondent should be held administratively liable for neglect of duty. Neglect of duty is the failure of an employee to give proper attention to a task expected of him, signifying "disregard of a duty resulting from carelessness or indifference."40 By merely acquiescing to the report and recommendation of his subordinate without verifying its accuracy, respondent was negligent in overseeing that the duties and responsibilities of the WID were performed with utmost responsibility. Respondent was likewise negligent when he failed, as supervisor, to initiate, institute, or recommend investigation and disciplinary proceedings against his subordinate Baliwag after the anomaly was discovered. Clearly, respondent failed to exercise the degree of care, skill, and diligence which the circumstances warrant. We are of course not unaware that as a general rule, superior officers cannot be held liable for the acts of their subordinates. However, there are exceptions, viz.: (1) where, being charged with the duty of employing or retaining his subordinates, he negligently or willfully employs or retains unfit or improper persons; or (2) where, being charged with the duty to see that they are appointed and qualified in a proper manner, he negligently or willfully fails to require of them the due conformity to the prescribed regulations; or (3) where he so carelessly or negligently oversees, conducts or carries on the business of his office as to furnish the opportunity for the default; or (4) and a fortiori where he has directed, authorized or cooperated in the wrong.41 In Advincula v. Dicen,42 the Court found a provincial agriculturist liable for misconduct despite his protestations anchored on reliance to a subordinate. In finding him liable, the Court scored the said official for failing to scrutinize each and every document proffered to him by subordinates. In Amane v. Mendoza-Arce,43 respondent clerk of court was held liable for neglect of duty for failing to discipline her subordinates and make sure that they regularly and promptly performed their duties. In the case under review, respondent was careless or

negligent in overseeing, conducting, or carrying on the business of his office as to furnish the opportunity for the default of a subordinate. WHEREFORE, the petition is GRANTED and the appealed Decision REVERSED AND SET ASIDE. The Decision of the Ombudsman in OMB-ADM-0-97-0656 finding respondent guilty of neglect of duty isREINSTATED. SO ORDERED. SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent. DECISION KAPUNAN, J.: On 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. The Committee was mandated to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress.[1] Subsequently, 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. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons. [2] Characterized as an ad-hoc body, the existence of the Commission shall terminate upon the completion of all activities related to the Centennial Celebrations.[3] Like its predecessor Committee, the Commission was tasked to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress. Per Section 6 of the Executive Order, the Commission was also charged with the responsibility to prepare, for approval of the President, a Comprehensive Plan for the Centennial Celebrations within six (6) months from the effectivity of the Executive Order. E.O. No. 128 also contained provisions for staff support and funding: Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariat to be composed of, among others, detailed personnel from the Presidential Management Staff, the National Commission for Culture and the Arts, and the National Historical Institute. Said Secretariat shall be headed by a full time Executive Director who shall be designated by the President. Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department of Tourism and the presidents Contingent Fund, in an amount to be recommended by the Commission, and approved by the President. Appropriations for succeeding years shall be incorporated in the budget of the Office of the President.

Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created.[4] Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer. On 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. Upon motion of Senator Franklin Drilon, Senator Cosetengs privilege speech was referred to the Committee on Accountability of Public Officers and Investigation (The Blue Ribbon Committee) and several other Senate Committees for investigation. On 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. On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the Committees 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 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.[5] Later, on November 5, 1999, the 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. The 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: 1. 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; 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant.[6] In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and those of his witnesses. On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of said office. In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to dismiss.

On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion was denied in an Order dated October 5, 2000. On October 25, 2000, petitioner filed the present petition for certiorari. On 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 for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594. The resolution also directed that an information for violation of the said law be filed against Laurel and Pea. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Pea. In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, commanding respondents to desist from filing any information before the Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral argument. Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because: A. EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED CORPORATION. B. THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE. C. PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.[7] In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs. Sandiganbayan,[9]where it was held that the jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioners position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him. This last contention is easily dismissed. In the Courts decision in Uy, we held that it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan. In its Resolution of February 22, 2000, the Court expounded:

The clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 (An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes) which vests upon the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction clearly serve to limit the Ombudsmans and Special Prosecutors authority to cases cognizable by the Sandiganbayan. [Emphasis in the original.] The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman to take over, at any stage, from any investigatory agency of the government, the investigation of such cases. The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The

Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office. A review of the development of our Ombudsman law reveals this intent. [Emphasis in the original.] Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. We first address the argument that petitioner, as Chair of the NCC, was not a public officer. The Constitution[10] describes the Ombudsman and his Deputies as protectors of the people, who shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. Among the awesome powers, functions, and duties vested by the Constitution[11] upon the Office of the Ombudsman is to [i]nvestigate any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise known as the Ombudsman Act of 1989. Sections 13 and 15(1) of said law respectively provide: SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people shall act promptly on complaints file in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x. The coverage of the law appears to be limited only by Section 16, in relation to Section 13,supra:

SEC 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office. In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.[12] Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public officers cited in jurisprudence[13] 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.[14] 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, continuance of the position, scope of duties, and the designation of the position as an office. [15] Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary. 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. 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 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. [16] Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as executive? We hold that 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. [17] The executive function, therefore, concerns the implementation of the policies as set forth by law. The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof:

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nations historical and cultural heritage and resources, as well as artistic creations. In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998: Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity; Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values; Whereas, the success of the Centennial Celebrations may be insured only through longrange planning and continuous developmental programming; Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning and continuous developmental programming; Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the multisectoral components from the business, cultural, and business sectors to serve as effective instruments from the launching and overseeing of this long-term project; x x x. E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider participation from the government and non-government or private organizations. It also referred to the need to rationalize the relevance of historical links with other countries. The NCC was precisely created to execute the foregoing policies and objectives, to carry them into effect. Thus, the Commission was vested with the following functions: (a) To undertake the overall study, conceptualization, formulation and implementation of programs and projects on the utilization of culture, arts, literature and media as vehicles for history, economic endeavors, and reinvigorating the spirit of national unity and sense of accomplishment in every Filipino in the context of the Centennial Celebrations. In this regard, it shall include a Philippine National Exposition 98 within Metro Manila, the original eight provinces, and Clark Air Base as its major venues; To act as principal coordinator for all the activities related to awareness and celebration of the Centennial; To serve as the clearing house for the preparation and dissemination of all information about the plans and events for the Centennial Celebrations;

(b) (c)

(d) (e)

To constitute working groups which implementation of the programs and projects;

shall

undertake

the

There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental state policy.[20] Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the holding by a municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner argues that the holding of a nationwide celebration which marked the nations 100th birthday may be likened to a national fiesta which involved only the exercise of the national governments proprietary function.[22] In Torio, we held: [Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed, was not to secure profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the town, nonetheless it is [a] private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service. As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is that it is government in essence, otherwise, the function becomes private or propriety in character. Easily, no governmental or public policy of the state is involved in the celebration of a town fiesta. Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court cautioned that there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the surrounding circumstances plus the political, social, and cultural backgrounds could produce a conclusion different from that in Torio: We came across an interesting case which shows that surrounding circumstances plus the political, social, and cultural backgrounds may have a decisive bearing on this question. The case of Pope v. City of New Haven, et al. was an action to recover damages for personal injuries caused during a Fourth of July fireworks display resulting in the death of a bystander alleged to have been caused by defendants negligence. The defendants demurred to the complaint invoking the defense that the city was engaged in the performance of a public governmental duty from which it received no pecuniary benefit and for negligence in the performance of which no statutory liability is imposed. This demurrer was sustained by the Superior Court of New Haven Country. Plaintiff sought to amend his complaint to allege that the celebration was for the corporate advantage of the city. This was denied. In affirming the order, the Supreme Court of Errors of Connecticut held inter alia: Municipal corporations are exempt from liability for the negligent performance of purely public governmental duties, unless made liable by statute.

To prioritize the refurbishment of historical sites and structures nationwide. In this regard, the Commission shall formulate schemes (e.g. lease-maintained-and-transfer, build-operate-transfer, and similar arrangements) to ensure the preservation and maintenance of the historical sites and structures;

(f) To call upon any government agency or instrumentality and corporation, and to invite private individuals and organizations to assist it in the performance of its tasks; and, (g) Submit regular reports to the President on the plans, programs, projects, activities as well as the status of the preparations for the Celebration.[18]

It bears noting the President, upon whom the executive power is vested, [19] created the NCC byexecutive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2 describes the nature of executive orders: SEC. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character inimplementation or execution of constitutional or statutory powers shall be promulgated in executive orders. [Underscoring ours.] Furthermore, the NCC was not without a role in the countrys economic development, especially in Central Luzon. Petitioner himself admitted as much in the oral arguments before this Court: MR. JUSTICE REYNATO S. PUNO: And in addition to that expounded by Former President Ramos, dont you agree that the task of the centennial commission was also to focus on the long term over all socio economic development of the zone and Central Luzon by attracting investors in the area because of the eruption of Mt. Pinatubo. FORMER VICE PRESIDENT SALVADOR H. LAUREL: I am glad Your Honor touched on that because that is something I wanted to touch on by lack of material time I could not but that is a very important point. When I was made Chairman I wanted the Expo to be in Batangas because I am a Batangeo but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery in that area by putting this Expo in Clark Field and so it was done I agreed and Your Honor if I may also mention we wanted to generate employment aside from attracting business investments and employment. And the Estrada administration decided to junk this project there 48, 40 thousand people who lost job, they were employed in Expo. And our target was to provide 75 thousand jobs. It would have really calibrated, accelerated the development of Central Luzon. Now, I think they are going back to that because they had the airport and there are plan to revive the Expo site into key park which was the original plan.

A municipality corporation, which under permissive authority of its charter or of statute, conducted a public Fourth of July celebration, including a display of fireworks, and sent up a bomb intended to explode in the air, but which failed to explode until it reached the ground, and then killed a spectator, was engaged in the performance of a governmental duty. (99 A.R. 51) This decision was concurred in by three Judges while two dissented. At any rate the rationale of the Majority Opinion is evident from [this] excerpt: July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All or nearly all of the other states have similar statutes. While there is no United States statute making a similar provision, the different departments of the government recognize, and have recognized since the government was established, July 4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic air sometimes preceded by the firing of cannon and followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. x x x Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial Celebrations was meant to commemorate the birth of our nation after centuries of struggle against our former colonial master, to memorialize the liberation of our people from oppression by a foreign power. 1998 marked 100 years of independence and sovereignty as one united nation. The Celebrations was an occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a vehicle for fostering nationhood and a strong sense of Filipino identity, an opportunity to showcase Filipino heritage and thereby strengthen Filipino values. The significance of the Celebrations could not have been lost on petitioner, who remarked during the hearing: Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love for freedom, love for country, that is the over-all goal that has to make everybody feel proud that he is a Filipino, proud of our history, proud of what our forefather did in their time. x x x. 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. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. [23] 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.[24] But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc body make said commission less of a public office.

The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office. But, says Chief Justice Marshall, if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer. At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present it can make no difference, says Pearson, C.J., 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 behavior.[25] Our conclusion that petitioner is a public officer finds support in In Re Corliss.[26] There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an office of trust as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a person holding an office of trust or profit under the United States is disqualified from being appointed an elector.) x x x. We think a Commissioner of the United States Centennial Commission holds an office of trust under the United States, and that he is therefore disqualified for the office of elector of President and Vice-President of the United States. The commission was created under a statute of the United States approved March 3, 1871. That statute provides for the holding of an exhibition of American and foreign arts, products, and manufactures, under the auspices of the government of the United States, and for the constitution of a commission, to consist of more than one delegate from each State and from each Territory of the United States, whose functions shall continue until close of the exhibition, and whose duty it shall be to prepare and superintend the execution of the plan for holding the exhibition. Under the statute the commissioners are appointed by the President of the United States, on the nomination of the governor of the States and Territories respectively. Various duties were imposed upon the commission, and under the statute provision was to be made for it to have exclusive control of the exhibit before the President should announce, by proclamation, the date and place of opening and holding the exhibition. By an act of Congress approved June 1st, 1872, the duties and functions of the commission were further increased and defined. That act created a corporation, called The Centennial Board of Finance, to cooperate with the commission and to raise and disburse the funds. It was to be organized under the direction of the commission. The seventh section of the act provides that the grounds for exhibition shall be prepared and the buildings erected by the corporation, in accordance with plans which shall have been adopted by the United States Centennial Commission; and the rules and regulations of said corporation, governing rates for entrance and admission fees, or otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be fixed and established by the United States Centennial Commission; and no grant conferring rights or privileges of any description connected with said grounds or buildings, or relating to said exhibition or celebration, shall be made without the consent of the United States Centennial Commission, and said commission shall have power to control, change, or revoke all such grants, and shall appoint all judges and examiners and award all premiums. The tenth section of the act provides that it shall be the duty of the United States Centennial Commission to supervise

the closing up of the affairs of said corporation, to audit its accounts, and submit in a report to the President of the United States the financial results of the centennial exhibition. It is apparent from this statement, which is but partial, that the duties and functions of the commission were various, delicate, and important; that they could be successfully performed only by men of large experience and knowledge of affairs; and that they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary, and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of statutory direction and authority, are not to be regarded as mere employees, agents, or committee men, but that they are, properly speaking, officers, and that the places which they hold are offices. It appears, moreover, that they were originally regarded as officers by Congress; for the act under which they were appointed declares, section 7, that no compensation for services shall be paid to the commissioners or other officers, provided for in this act, from the treasury of the United States. The only other officers provided for were the alternates appointed to serve as commissioners when the commissioners were unable to attend. Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public office, we need no longer delve at length on the issue of whether Expocorp is a private or a public corporation. Even assuming that Expocorp is a private corporation, petitioners position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair. [27] Finally, it is 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. Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads: SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows: SEC. 2. Definition of terms. As used in this Act, the term xxx

(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. [Emphasis supplied.] It is clear from Section 2 (b), 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 Ombudsmans jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters that are best resolved at trial. To illustrate, the use of the term includes in Section 2 (b) indicates that the definition is not restrictive.[28] 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 x x 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, 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 1987, [29] on 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. It bears noting that 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, thus: 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. Which of these definitions should apply, if at all? Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term compensation, which is not defined by said law, has many meanings. Under particular circumstances, compensation has been held to include allowance for personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts, salary, and wages.[30]

How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted? Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled to per diems and compensation.[31] Would such fact bear any significance? Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court from resolving them. WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Courts Resolution dated September 24, 2001 is hereby LIFTED. SO ORDERED. Puno, and Ynares-Santiago, JJ., concur. Davide, Jr., C.J., (Chairman), no part due to close relation to a party. G.R. Nos. 142801-802 July 10, 2001

affect national financial interest with the goal of regulating, controlling or preventing said activities; (c) Provide all intelligence units of operating Bureaus or Offices under the Ministry with the general framework and guidelines in the conduct of intelligence and investigating works; (d) Supervise, monitor and coordinate all the intelligence and investigation operations of the operating Bureaus and Offices under the Ministry; (e) Investigate, hear and file, upon clearance by the Minister, anti-graft and corruption cases against personnel of the Ministry and its constituents units; (f) Perform such other appropriate functions as may be assigned by the Minister or his deputies."5 In a desire to achieve harmony of efforts and to prevent possible conflicts among agencies in the course of their anti-smuggling operations, President Aquino issued Memorandum Order No. 225 on March 17, 1989, providing, among others, that the EIIB "shall be the agency of primary responsibility for anti-smuggling operations in all land areas and inland waters and waterways outside the areas of sole jurisdiction of the Bureau of Customs."6 Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive Order No. 191 entitled "Deactivation of the Economic Intelligence and Investigation Bureau."7 Motivated by the fact that "the designated functions of the EIIB are also being performed by the other existing agencies of the government" and that "there is a need to constantly monitor the overlapping of functions" among these agencies, former President Estrada ordered the deactivation of EIIB and the transfer of its functions to the Bureau of Customs and the National Bureau of Investigation. Meanwhile, President Estrada issued Executive Order No. 1968 creating the Presidential Anti-Smuggling Task Force "Aduana."9 Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada issued Executive Order No. 22310 providing that all EIIB personnel occupying positions specified therein shall be deemed separated from the service effective April 30, 2000, pursuant to a bona fide reorganization resulting to abolition, redundancy, merger, division, or consolidation of positions.11 Agonizing over the loss of their employment, petitioners now come before this Court invoking our power of judicial review of Executive Order Nos. 191 and 223. They anchor their petition on the following arguments: "A Executive Order Nos. 191 and 223 should be annulled as they are unconstitutional for being violative of Section 2(3), Article IX-B of the Philippine Constitution and/or for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

BUKLOD NG KAWANING EIIB, CESAR POSADA, REMEDIOS G. PRINCESA, BENJAMIN KHO, BENIGNO MANGA, LULU MENDOZA, petitioners, vs. HON. EXECUTIVE SECRETARY RONALDO B. ZAMORA, HON. SECRETARY JOSE PARDO, DEPARTMENT OF FINANCE, HON. SECRETARY BENJAMIN DIOKNO, DEPARTMENT OF BUDGET AND MANAGEMENT, HON. SECRETARY ARTEMIO TUQUERO, DEPARTMENT OF JUSTICE, respondents. SANDOVAL-GUTIERREZ, J.: In this petition for certiorari, prohibition and mandamus, petitioners Buklod Ng Kawaning EIIB, Cesar Posada, Remedios Princesa, Benjamin Kho, Benigno Manga and Lulu Mendoza, for themselves and in behalf of others with whom they share a common or general interest, seek the nullification of Executive Order No. 1911 andExecutive Order No. 2232 on the ground that they were issued by the Office of the President with grave abuse of discretion and in violation of their constitutional right to security of tenure. The facts are undisputed: On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No. 1273 establishing the Economic Intelligence and Investigation Bureau (EIIB) as part of the structural organization of the Ministry of Finance. 4 The EIIB was designated to perform the following functions: "(a) Receive, gather and evaluate intelligence reports and information and evidence on the nature, modes and extent of illegal activities affecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, and dollar-salting, investigate the same and aid in the prosecution of cases; (b) Coordinate with external agencies in monitoring the financial and economic activities of persons or entities, whether domestic or foreign, which may adversely

B. The abolition of the EIIB is a hoax. Similarly, if Executive Order Nos. 191 and 223 are considered to effect a reorganization of the EIIB, such reorganization was made in bad faith. C. The President has no authority to abolish the EIIB." Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a violation of their right to security of tenure; (b) tainted with bad faith as they were not actually intended to make the bureaucracy more efficient but to give way to Task Force "Aduana," the functions of which are essentially and substantially the same as that of EIIB; and (c) a usurpation of the power of Congress to decide whether or not to abolish the EIIB. Arguing in behalf of respondents, the Solicitor General maintains that: (a) the President enjoys the totality of the executive power provided under Sections 1 and 7, Article VII of the Constitution, thus, he has the authority to issue Executive Order Nos. 191 and 223; (b) the said executive orders were issued in the interest of national economy, to avoid duplicity of work and to streamline the functions of the bureaucracy; and (c) the EIIB was not "abolished," it was only "deactivated." The petition is bereft of merit.

is not true indeactivation where the office continues to exist, albeit remaining dormant or inoperative. Be that as it may, deactivation and abolition are both reorganization measures. The Solicitor General only invokes the above distinctions on the mistaken assumption that the President has no power to abolish an office. The general rule has always been that the power to abolish a public office is lodged with the legislature.16 This proceeds from the legal precept that the power to create includes the power to destroy. A public office is either created by the Constitution, by statute, or by authority of law.17 Thus, except where the office was created by the Constitution itself, it may be abolished by the same legislature that brought it into existence. 18 The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President's power of control may justify him to inactivate the functions of a particular office,19 or certain laws may grant him the broad authority to carry out reorganization measures.20 The case in point is Larin v. Executive Secretary.21 In this case, it was argued that there is no law which empowers the President to reorganize the BIR. In decreeing otherwise, this Court sustained the following legal basis, thus: "Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132 or to reorganize the BIR. We do not agree. xxx xxx

Despite the presence of some procedural flaws in the instant petition, such as, petitioners' disregard of the hierarchy of courts and the non-exhaustion of administrative remedies, we deem it necessary to address the issues. It is in the interest of the State that questions relating to the status and existence of a public office be settled without delay. We are not without precedent. In Dario v. Mison,12 we liberally decreed: "The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties to sue, for two reasons, `[b]ecause of the demands of public interest, including the need for stability in the public service,' and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants." At first glance, it seems that the resolution of this case hinges on the question - Does the "deactivation" of EIIB constitute "abolition" of an office? However, after coming to terms with the prevailing law and jurisprudence, we are certain that the ultimate queries should be a) Does the President have the authority to reorganize the executive department? and, b) How should the reorganization be carried out? Surely, there exists a distinction between the words "deactivate" and "abolish." To "deactivate" means to render inactive or ineffective or to break up by discharging or reassigning personnel,13 while to "abolish" means to do away with, to annul, abrogate or destroy completely.14 In essence, abolition denotes an intention to do away with the office wholly and permanently.15 Thus, while in abolition, the office ceases to exist, the same

Section 48 of R.A. 7645 provides that: 'Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. The heads of departments, bureaus and offices and agencies are hereby directed to identify their respective activities which are no longer essential in the delivery of public services and which may be scaled down, phased out or abolished, subject to civil service rules and regulations. X x x. Actual scaling down, phasing out or abolition of the activities shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President.' Said provision clearly mentions the acts of "scaling down, phasing out and abolition" of offices only and does not cover the creation of offices or transfer of functions. Nevertheless, the act of creating and decentralizing is included in the subsequent provision of Section 62 which provides that: 'Sec. 62. Unauthorized organizational charges. - Unless otherwise created by law or directed by the President of the Philippines, no organizational unit or changes in key positions in any department or agency shall be authorized in their respective organization structures and be funded from appropriations by this Act.' (italics ours)

The foregoing provision evidently shows that the President is authorized to effect organizational changes including the creation of offices in the department or agency concerned. xxx xxx

effected pursuant toCirculars or Orders issued for the purpose by the Office of the President.24 The law has spoken clearly. We are left only with the duty to sustain. But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very source of the power that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre,25 we ruled that reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau attached to the Department of Finance.26 It falls under the Office of the President. Hence, it is subject to the President's continuing authority to reorganize. It having been duly established that the President has the authority to carry out reorganization in any branch or agency of the executive department, what is then left for us to resolve is whether or not the reorganization is valid. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in good faith. Reorganization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more efficient.27 Pertinently, Republic Act No. 665628 provides for the circumstances which may be considered as evidence of bad faith in the removal of civil service employees made as a result of reorganization, to wit: (a) where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) where an office is abolished and another performing substantially the same functions is created;(c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) where there is a classification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices, and (e) where the removal violates the order of separation.29 Petitioners claim that the deactivation of EIIB was done in bad faith because four days after its deactivation, President Estrada created the Task Force Aduana. We are not convinced. An examination of the pertinent Executive Orders30 shows that the deactivation of EIIB and the creation of Task Force Aduana were done in good faith. It was not for the purpose of removing the EIIB employees, but to achieve the ultimate purpose of E.O. No. 191, which is economy. While Task Force Aduana was created to take the place of EIIB, its creation does not entail expense to the government. Firstly, there is no employment of new personnel to man the Task Force. E.O. No. 196 provides that the technical, administrative and special staffs of EIIB are to be composed of people who are already in the public service, they being employees of other existing agencies. Their tenure with the Task Force would only be temporary, i.e., only when the agency where they belong is called upon to assist the Task Force. Since their employment with the Task force is only by way of detail or

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states: 'Sec. 20. Residual Powers. Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law.' (italic ours) This provision speaks of such other powers vested in the President under the law. What law then gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or revoked. So far, there is yet no law amending or repealing said decrees." (Emphasis supplied) Now, let us take a look at the assailed executive order. In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to deactivate EIIB on Section 77 of Republic Act 8745 (FY 1999 General Appropriations Act), a provision similar to Section 62 of R.A. 7645 quoted in Larin, thus; "Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of the Philippines, no changes in key positions or organizational units in any department or agency shall be authorized in their respective organizational structures and funded from appropriations provided by this Act." We adhere to the precedent or ruling in Larin that this provision recognizes the authority of the President to effect organizational changes in the department or agency under the executive structure. Such a ruling further finds support in Section 78 of Republic Act No. 8760.22 Under this law, the heads of departments, bureaus, offices and agencies and other entities in the Executive Branch are directed (a) to conduct a comprehensive review of their respective mandates, missions, objectives, functions, programs, projects, activities and systems and procedures;(b) identify activities which are no longer essential in the delivery of public services and which may be scaled down, phased-out or abolished; and (c) adopt measures that will result in the streamlined organization and improved overall performance of their respective agencies.23 Section 78 ends up with the mandate that the actual streamlining and productivity improvement in agency organization and operation shall be

assignment, they retain their employment with the existing agencies. And should the need for them cease, they would be sent back to the agency concerned. Secondly, the thrust of E.O. No. 196 is to have a small group of military men under the direct control and supervision of the President as base of the government's anti-smuggling campaign. Such a smaller base has the necessary powers 1) to enlist the assistance of any department, bureau, or office and to use their respective personnel, facilities and resources; and 2) "to select and recruit personnel from within the PSG and ISAFP forassignment to the Task Force." Obviously, the idea is to encourage the utilization of personnel, facilities and resources of the already existing departments, agencies, bureaus, etc., instead of maintaining an independent office with a whole set of personnel and facilities. The EIIB had proven itself burdensome for the government because it maintained separate offices in every region in the Philippines. And thirdly, it is evident from the yearly budget appropriation of the government that the creation of the Task Force Aduana was especially intended to lessen EIIB's expenses. Tracing from the yearly General Appropriations Act, it appears that the allotted amount for the EIIB's general administration, support, and operations for the year 1995, was P128,031,000;31 for 1996, P182,156,000;32 for 1998, P219,889,000;33 and, for 1999,P238,743,000.34 These amounts were far above the P50,000,00035 allocation to the Task Force Aduana for the year 2000. While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we find the latter to have additional new powers. The Task Force Aduana, being composed of elements from the Presidential Security Group (PSG) and Intelligence Service Armed Forces of the Philippines (ISAFP),36 has the essential power to effect searches, seizures and arrests. The EIIB did not have this power. The Task Force Aduana has the power to enlist the assistance of any department, bureau, office, or instrumentality of the government, including government-owned or controlled corporations; and to use their personnel, facilities and resources. Again, the EIIB did not have this power. And, the Task Force Aduana has the additional authority to conduct investigation of cases involving ill-gotten wealth. This was not expressly granted to the EIIB.1wphi1.nt Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil Sevice Commission, 37we ruled that a reorganization in good faith is one designed to trim the fat off the bureaucracy and institute economy and greater efficiency in its operation. Lastly, we hold that petitioners' right to security of tenure is not violated. Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. Valid abolition of offices is neither removal nor separation of the incumbents.38 In the instructive words laid down by this Court in Dario v. Mison,39 through Justice Abraham F. Sarmiento: Reorganizations in this jurisdiction have been regarded as valid provided they are 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. In that event, no dismissal (in case of 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, otherwise not in good faith, no valid 'abolition' takes 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. Indeed, there is no such thing as an absolute right to hold office. 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.40 While we cast a commiserating look upon the plight of all the EIIB employees whose lives perhaps are now torn with uncertainties, we cannot ignore the unfortunate reality that our government is also battling the impact of a plummeting economy. Unless the government is given the chance to recuperate by instituting economy and efficiency in its system, the EIIB will not be the last agency to suffer the impact. We cannot frustrate valid measures which are designed to rebuild the executive department. WHEREFORE, the petition is hereby DENIED. No costs. SO ORDERED. G.R. No. 115863 March 31, 1995 AIDA D. EUGENIO, petitioner, vs. CIVIL SERVICE COMMISSION, HON. TEOFISTO T. GUINGONA, JR. & HON. SALVADOR ENRIQUEZ, JR.,respondents.

PUNO, J.: The power of the Civil Service Commission to abolish the Career Executive Service Board is challenged in this petition for certiorari and prohibition. First the facts. Petitioner is the Deputy Director of the Philippine Nuclear Research Institute. She applied for a Career Executive Service (CES) Eligibility and a CESO rank on August 2, 1993, she was given a CES eligibility. On September 15, 1993, she was recommended to the President for a CESO rank by the Career Executive Service Board. 1 All was not to turn well for petitioner. On October 1, 1993, respondent Civil Service Commission 2 passed Resolution No. 93-4359, viz: RESOLUTION NO. 93-4359 WHEREAS, Section 1(1) of Article IX-B provides that Civil Service shall be administered by the Civil Service Commission, . . .; WHEREAS, Section 3, Article IX-B of the 1987 Philippine Constitution provides that "The Civil Service Commission, as the central personnel agency of the government, is mandated to establish a career service and adopt measures to

promote morale, efficiency, integrity, responsiveness, progresiveness and courtesy in the civil service, . . ."; WHEREAS, Section 12 (1), Title I, Subtitle A, Book V of the Administrative Code of 1987 grants the Commission the power, among others, to administer and enforce the constitutional and statutory provisions on the merit system for all levels and ranks in the Civil Service; WHEREAS, Section 7, Title I, Subtitle A, Book V of the Administrative Code of 1987 Provides, among others, that The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure; WHEREAS, Section 8 (c), Title I, Subtitle A, Book V of the administrative Code of 1987 provides that "The third level shall cover Positions in the Career Executive Service"; WHEREAS, the Commission recognizes the imperative need to consolidate, integrate and unify the administration of all levels of positions in the career service. WHEREAS, the provisions of Section 17, Title I, Subtitle A. Book V of the Administrative Code of 1987 confers on the Commission the power and authority to effect changes in its organization as the need arises. WHEREAS, Section 5, Article IX-A of the Constitution provides that the Civil Service Commission shall enjoy fiscal autonomy and the necessary implications thereof; NOW THEREFORE, foregoing premises considered, the Civil Service Commission hereby resolves to streamline reorganize and effect changes in its organizational structure. Pursuant thereto, the Career Executive Service Board, shall now be known as the Office for Career Executive Service of the Civil Service Commission. Accordingly, the existing personnel, budget, properties and equipment of the Career Executive Service Board shall now form part of the Office for Career Executive Service. The above resolution became an impediment. to the appointment of petitioner as Civil Service Officer, Rank IV. In a letter to petitioner, dated June 7, 1994, the Honorable Antonio T. Carpio, Chief Presidential legal Counsel, stated: xxx xxx xxx On 1 October 1993 the Civil Service Commission issued CSC Resolution No. 93-4359 which abolished the Career Executive Service Board.

Several legal issues have arisen as a result of the issuance of CSC Resolution No. 93-4359, including whether the Civil Service Commission has authority to abolish the Career Executive Service Board. Because these issues remain unresolved, the Office of the President has refrained from considering appointments of career service eligibles to career executive ranks. xxx xxx xxx You may, however, bring a case before the appropriate court to settle the legal issues arising from issuance by the Civil Service Commission of CSC Resolution No. 93-4359, for guidance of all concerned. Thank You. Finding herself bereft of further administrative relief as the Career Executive Service Board which recommended her CESO Rank IV has been abolished, petitioner filed the petition at bench to annul, among others, resolution No. 93-4359. The petition is anchored on the following arguments: A. IN VIOLATION OF THE CONSTITUTION, RESPONDENT COMMISSION USURPED THE LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ABOLISHED THE CESB, AN OFFICE CREATED BY LAW, THROUGH THE ISSUANCE OF CSC: RESOLUTION NO. 93-4359; B. ALSO IN VIOLATION OF THE CONSTITUTION, RESPONDENT CSC USURPED THE LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ILLEGALLY AUTHORIZED THE TRANSFER OF PUBLIC MONEY, THROUGH THE ISSUANCE OF CSC RESOLUTION NO. 93-4359. Required to file its Comment, the Solicitor General agreed with the contentions of petitioner. Respondent Commission, however, chose to defend its ground. It posited the following position: ARGUMENTS FOR PUBLIC RESPONDENT-CSC I. THE INSTANT PETITION STATES NO CAUSE OF ACTION AGAINST THE PUBLIC RESPONDENT-CSC. II. THE RECOMMENDATION SUBMITTED TO THE PRESIDENT FOR APPOINTMENT TO A CESO RANK OF PETITIONER EUGENIO WAS A VALID ACT OF THE CAREER EXECUTIVE SERVICE BOARD OF THE CIVIL SERVICE COMMISSION AND IT DOES NOT HAVE ANY DEFECT.

III. THE OFFICE OF THE PRESIDENT IS ESTOPPED FROM QUESTIONING THE VALIDITY OF THE RECOMMENDATION OF THE CESB IN FAVOR OF PETITIONER EUGENIO SINCE THE PRESIDENT HAS PREVIOUSLY APPOINTED TO CESO RANK FOUR (4) OFFICIALS SIMILARLY SITUATED AS SAID PETITIONER. FURTHERMORE, LACK OF MEMBERS TO CONSTITUTE A QUORUM. ASSUMING THERE WAS NO QUORUM, IS NOT THE FAULT OF PUBLIC RESPONDENT CIVIL SERVICE COMMISSION BUT OF THE PRESIDENT WHO HAS THE POWER TO APPOINT THE OTHER MEMBERS OF THE CESB. IV. THE INTEGRATION OF THE CESB INTO THE COMMISSION IS AUTHORIZED BY LAW (Sec. 12 (1), Title I, Subtitle A, Book V of the Administrative Code of the 1987). THIS PARTICULAR ISSUE HAD ALREADY BEEN SETTLED WHEN THE HONORABLE COURT DISMISSED THE PETITION FILED BY THE HONORABLE MEMBERS OF THE HOUSE OF REPRESENTATIVES, NAMELY: SIMEON A. DATUMANONG, FELICIANO R. BELMONTE, JR., RENATO V. DIAZ, AND MANUEL M. GARCIA IN G.R. NO. 114380. THE AFOREMENTIONED PETITIONERS ALSO QUESTIONED THE INTEGRATION OF THE CESB WITH THE COMMISSION. We find merit in the petition. 3 The controlling fact is that the Career Executive Service Board (CESB) was created in the Presidential Decree (P.D.) No. 1 on September 1, 1974 4 which adopted the Integrated Plan. Article IV, Chapter I, Part of the III of the said Plan provides: Article IV Career Executive Service 1. A Career Executive Service is created to form a continuing pool of well-selected and development oriented career administrators who shall provide competent and faithful service. 2. A Career Executive Service hereinafter referred to in this Chapter as the Board, is created to serve as the governing body of the Career Executive Service. The Board shall consist of the Chairman of the Civil Service Commission as presiding officer, the Executive Secretary and the Commissioner of the Budget as ex-officio members and two other members from the private sector and/or the academic community who are familiar with the principles and methods of personnel administration. xxx xxx xxx 5. The Board shall promulgate rules, standards and procedures on the selection, classification, compensation and career development of members of the Career Executive Service. The Board shall set up the organization and operation of the service. (Emphasis supplied)

It cannot be disputed, therefore, that as the CESB was created by law, it can only be abolished by the legislature. This follows an unbroken stream of rulings that the creation and abolition of public offices is primarily a legislative function. As aptly summed up in AM JUR 2d on Public Officers and Employees, 5 viz: Except for such offices as are created by the Constitution, the creation of public offices is primarily a legislative function. In so far as the legislative power in this respect is not restricted by constitutional provisions, it supreme, and the legislature may decide for itself what offices are suitable, necessary, or convenient. When in the exigencies of government it is necessary to create and define duties, the legislative department has the discretion to determine whether additional offices shall be created, or whether these duties shall be attached to and become ex-officio duties of existing offices. An office created by the legislature is wholly within the power of that body, and it may prescribe the mode of filling the office and the powers and duties of the incumbent, and if it sees fit, abolish the office. In the petition at bench, the legislature has not enacted any law authorizing the abolition of the CESB. On the contrary, in all the General Appropriations Acts from 1975 to 1993, the legislature has set aside funds for the operation of CESB. Respondent Commission, however, invokes Section 17, Chapter 3, Subtitle A. Title I, Book V of the Administrative Code of 1987 as the source of its power to abolish the CESB. Section 17 provides: Sec. 17. Organizational Structure. Each office of the Commission shall be headed by a Director with at least one Assistant Director, and may have such divisions as are necessary independent constitutional body, the Commission may effect changes in the organization as the need arises. But as well pointed out by petitioner and the Solicitor General, Section 17 must be read together with Section 16 of the said Code which enumerates the offices under the respondent Commission, viz: Sec. 16. Offices in the Commission. The Commission shall have the following offices: (1) The Office of the Executive Director headed by an Executive Director, with a Deputy Executive Director shall implement policies, standards, rules and regulations promulgated by the Commission; coordinate the programs of the offices of the Commission and render periodic reports on their operations, and perform such other functions as may be assigned by the Commission. (2) The Merit System Protection Board composed of a Chairman and two (2) members shall have the following functions: xxx xxx xxx

(3) The Office of Legal Affairs shall provide the Chairman with legal advice and assistance; render counselling services; undertake legal studies and researches; prepare opinions and ruling in the interpretation and application of the Civil Service law, rules and regulations; prosecute violations of such law, rules and regulations; and represent the Commission before any court or tribunal. (4) The Office of Planning and Management shall formulate development plans, programs and projects; undertake research and studies on the different aspects of public personnel management; administer management improvement programs; and provide fiscal and budgetary services. (5) The Central Administrative Office shall provide the Commission with personnel, financial, logistics and other basic support services. (6) The Office of Central Personnel Records shall formulate and implement policies, standards, rules and regulations pertaining to personnel records maintenance, security, control and disposal; provide storage and extension services; and provide and maintain library services. (7) The Office of Position Classification and Compensation shall formulate and implement policies, standards, rules and regulations relative to the administration of position classification and compensation. (8) The Office of Recruitment, Examination and Placement shall provide leadership and assistance in developing and implementing the overall Commission programs relating to recruitment, execution and placement, and formulate policies, standards, rules and regulations for the proper implementation of the Commission's examination and placement programs. (9) The Office of Career Systems and Standards shall provide leadership and assistance in the formulation and evaluation of personnel systems and standards relative to performance appraisal, merit promotion, and employee incentive benefit and awards. (10) The Office of Human Resource Development shall provide leadership and assistance in the development and retention of qualified and efficient work force in the Civil Service; formulate standards for training and staff development; administer service-wide scholarship programs; develop training literature and materials; coordinate and integrate all training activities and evaluate training programs. (11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and regulations for the effective conduct or inspection and audit personnel and personnel management programs and the exercise of delegated authority; provide technical and advisory services to Civil Service Regional Offices and government agencies in the implementation of their personnel programs and evaluation systems. (12) The Office of Personnel Relations shall provide leadership and assistance in the development and implementation of policies, standards, rules and regulations

in the accreditation of employee associations or organizations and in the adjustment and settlement of employee grievances and management of employee disputes. (13) The Office of Corporate Affairs shall formulate and implement policies, standards, rules and regulations governing corporate officials and employees in the areas of recruitment, examination, placement, career development, merit and awards systems, position classification and compensation, performing appraisal, employee welfare and benefit, discipline and other aspects of personnel management on the basis of comparable industry practices. (14) The Office of Retirement Administration shall be responsible for the enforcement of the constitutional and statutory provisions, relative to retirement and the regulation for the effective implementation of the retirement of government officials and employees. (15) The Regional and Field Offices. The Commission shall have not less than thirteen (13) Regional offices each to be headed by a Director, and such field offices as may be needed, each to be headed by an official with at least the rank of an Assistant Director. As read together, the inescapable conclusion is that respondent Commission's power to reorganize is limited to offices under its control as enumerated in Section 16, supra. From its inception, the CESB was intended to be an autonomous entity, albeit administratively attached to respondent Commission. As conceptualized by the Reorganization Committee "the CESB shall be autonomous. It is expected to view the problem of building up executive manpower in the government with a broad and positive outlook." 6 The essential autonomous character of the CESB is not negated by its attachment to respondent Commission. By said attachment, CESB was not made to fall within the control of respondent Commission. Under the Administrative Code of 1987, the purpose of attaching one functionally inter-related government agency to another is to attain "policy and program coordination." This is clearly etched out in Section 38(3), Chapter 7, Book IV of the aforecited Code, to wit: (3) Attachment. (a) This refers to the lateral relationship between the department or its equivalent and attached agency or corporation for purposes of policy and program coordination. The coordination may be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency. Respondent Commission also relies on the case of Datumanong, et al., vs. Civil Service Commission, G. R. No. 114380 where the petition assailing the abolition of the CESB was dismissed for lack of cause of action. Suffice to state that the reliance is misplaced considering that the cited case was dismissed for lack of standing of the petitioner, hence, the lack of cause of action.

IN VIEW WHEREOF, the petition is granted and Resolution No. 93-4359 of the respondent Commission is hereby annulled and set aside. No costs. SO ORDERED. G.R. No. 154652 August 14, 2009

On March 24, 2000, Atty. Arnaldo M. Espinas, LWUA corporate legal counsel, sought the opinion of the Civil Service Commission (CSC) regarding the regularity of the reassignments of respondents and of De Jesus. On March 30, 2000, the petitioner, via Office Order No. 99, directed the respondents to "desist in performing and exercising the functions and activities pertaining to [their] previous positions" and relieved them of their designations or assignments as 6th Member and interim Directors of the Water Districts under their responsibility. To implement this latest Office Order, and in the respondents absence, entry was effected into their respective rooms with the help of police officers; their room locks were replaced with new ones; and their cabinet drawers were sealed with tapes.7 The CSC responded on April 3, 2000 through a legal opinion (CSC legal opinion) issued by Assistant Commissioner Adelina B. Sarmiento. It categorically ruled that the reassignments were not in order, were tainted with bad faith, and constituted constructive dismissal. 8 The legal opinion stated: Worthy of note is the provision of Section 6a of CSC MC No. 40, s. 1998 which provides that: a. Reassignment movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary. If reassignment is without the consent of the employee being reassigned it shall be allowed only for a maximum period of one year. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or if it constitutes constructive dismissal. On the basis thereof, although the reassignment is presumed regular and made in the interest of public service, there is an iota of bad faith attendant to the herein case evidenced by the fact that the reassignment was issued barely ten days after the reassigned officials filed a criminal complaint against the Administrator for violation of the Anti-Graft and Corrupt Practices Act. Moreover, while the reassigned officials used to head their specific departments, being Deputy Administrators at that, their reassignment resulted to a diminution of their respective ranks. To apply the ruling of the Court of Appeals in the Fernandez case to the herein case, it is clear that there was such a diminution in rank because the reassignment order "did not state any justifiable reason for the reassignment, has no specificity as to the time, functions, duties and responsibilities, making it a floating assignment, and removes from their supervision employees who are part of their staff and subordinates." And more importantly, the recent development wherein the reassigned officials were directed to desist from performing and exercising the functions of their respective positions constituted constructive dismissal x x x. x x x (Emphasis supplied.) On April 13, 2000, the respondents filed before the Office of the Ombudsman an administrative complaint9 for Oppression and Harassment against the petitioner and the OICs. The petitioner duly filed a counter-affidavit raising as defense his authority to terminate the respondents employment and forum shopping. The petitioner denied as well that force and intimidation were used in taking over the respondents' offices.

PRUDENCIO M. REYES, JR., Petitioner, vs. SIMPLICIO C. BELISARIO and EMMANUEL S. MALICDEM, Respondents. DECISION BRION, J.: This petition for review on certiorari1 challenges the Court of Appeals (CA) decision of November 27, 20012 and resolution of August 1, 20023 that commonly reversed the Office of the Ombudsman Decision of July 19, 2000.4The petitioner imputes error on the CA for entertaining the respondents appeal of the Ombudsmans decision, and for the reversal that followed. He maintains that the Ombudsmans decision was final and unappealable under Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman (the Ombudsman Rules)5 and the CA should not have entertained it on appeal. THE FACTS The factual antecedents, based on the records before us, are summarized below. On March 3, 2000, respondents Deputy Administrators Simplicio Belisario, Jr. and Emmanuel B. Malicdem6(respondents), along with Daniel Landingin and Rodolfo S. De Jesus, all officers of the Local Water Utilities Administration (LWUA), filed before the Office of the Ombudsman a criminal complaint against LWUA Administrator Prudencio M. Reyes, Jr. (petitioner) for violation of Section 3(e) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act. On March 16, 2000, or only 13 days after the filing of the graft charge, the petitioner issued Office Order No. 69 reassigning respondents together with De Jesus from the offices they then held to the Office of the Administrator. Supposedly, the reassigned officers were to act as a core group of a LWUA Task Force and their specific assignments were to be given by petitioner; Officers-in-Charge (OICs) were designated for the offices they vacated. The following day, March 17, 2000 a Friday, the OIC for Administration issued a directive to the Magilas Security Agency to bar the respondents from using the rooms and facilities they occupied prior to their reassignments. On Monday, March 20, 2000, the petitioner, through Office Order No. 82, further directed the respondents to "vacate [their] offices and remove [their] personal belongings and transfer the same to the former PROFUND Office which has been designated as the Office of the Special Task Force."

The Office of the Ombudsman resolved the administrative case through a decision dated July 19, 2000.10 The Ombudsman desisted from ruling on the validity of the respondents reassignments, acknowledging the primary jurisdiction of the CSC over the issue: The CSC is the central personnel agency of the government and as such it is the Office tasked with the duty of rendering opinions and rulings on all personnel and other civil service matters which shall be binding on all heads of departments, offices and agencies. x x x. Hence, this Office can hardly arrogate unto itself the task of resolving the said issue. As stated by the Supreme Court, the doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. x x x (Emphasis supplied.) but at the same time denied weight to the CSC legal opinion, contending that it was "not a final and categorical ruling" on the validity of the reassignments. On this premise, the Ombudsman declared that the reassignments enjoyed the presumption of regularity and were thus considered valid. For this reason and for lack of evidence of force or intimidation on the part of the petitioner and co-defendant OICs in the implementation of the reassignments, the Ombudsman exonerated the petitioner and his co-defendants and dismissed the administrative case against them. Meanwhile, the CSC en banc rendered Resolution No. 00172911 dated July 26, 2000 fully affirming the CSC opinion earlier given by Asst. Commissioner Sarmiento. By this action, the CSC en banc declared the reassignments invalid, tainted with bad faith, and constitutive of the respondents constructive dismissal. The CSCen banc emphasized that the LWUA Administrator has no authority under the law to issue the questioned reassignment order, and ordered the respondents reinstatement. The petitioner responded by filing a motion for reconsideration of CSC Resolution No. 001729 and thus avoided the implementation of the respondents reinstatement. In the administrative case before the Ombudsman, the respondents moved for the reconsideration of the Ombudsman's 28 July 2000 decision, attaching to their motion a copy of CSC Resolution No. 001729. Nevertheless, the Ombudsman denied the requested reconsideration,12 stressing that CSC Resolution No. 001729 was not yet final in view of the petitioners pending motion for reconsideration. The pertinent part of the Ombudsman resolution of denial reads: While it is true that the CSC en banc thru the aforecited resolution appears to have affirmed the earlier opinion of Assistant Commissioner ADELINA B. SARMIENTO that the reassignment of the complainants by respondent REYES is not in order, the same is not yet final considering the timely filing before the said Commission of a Motion for Reconsideration by respondent REYES on August 29, 2000 x x x. Certainly, this is not the final and categorical ruling which this Office had in mind when it issued the questioned DECISION. (Emphasis supplied.)

The same order expressed that under Section 7, Rule III of the Ombudsman Rules, the Ombudsmans July 28, 2000 decision thus affirmed should now be final and unappealable. The CSC en banc denied the petitioner's motion for reconsideration of Resolution No. 001729 through CSC Resolution No. 00234813 dated October 17, 2000, and thus affirmed the illegality of the reassignments and the reassignment order. On October 31, 2000, the respondents challenged the Ombudsman's rulings through a petition for review14 filed with the CA, citing among others the Ombudsmans grave abuse of discretion in issuing its rulings. The CA ruled in the respondents favor in its decision of November 27, 2001 and thus reversed the assailed Ombudsmans July 28, 2000 decision. 15 The appellate court observed that the "Ombudsman did not decide the [respondents'] complaint for Harassment and Oppression on its merits, but relied on the non-finality of the Resolution of the Civil Service Commission."16 It also found the Ombudsmans decision incongruous, as the Ombudsman recognized the CSCs jurisdiction to determine the legality of the reassignments, but did not pursue this recognition to its logical end; he simply "ignored the legal premises" when he applied the presumption of regularity to the petitioner's reassignment orders and, on this basis, absolved the petitioner and his co-defendants of the administrative charge. To quote the CA rulings on this regard: [The Ombudsman] was right the first time when it ruled in the assailed Decision that it can "hardly arrogate unto itself the task of resolving the issue" of whether the personnel actions ordered by [the petitioner] against [the respondents] were within the scope of the former's authority. It correctly ruled that the CSC is tasked with the "duty of rendering opinions and rulings on all personnel and other civil service matters." It then ruled that "unless there is a final and categorical ruling of the CSC that the reassignment of the complainants by [petitioner] Administrator Reyes is not valid, the said Order of Reassignment enjoys the presumption of regularity." Unfortunately, however, without pursuing its initial ruling to its logical conclusion, the Ombudsman ultimately ignored the legal premises presented before it and acted to absolve the [petitioner and his co-defendants], thereby sustaining the illegal reassignments of the [complainants], which only the LWUA Board of Trustees as the proper appointing power was authorized to do pursuant to Section 3.1 of Executive Order No. 286, s. 1995. (Emphasis supplied.) The CA likewise declared that the Ombudsmans exoneration of the petitioner could not have become final and unappealable pursuant to Section 7, Rule III of the Ombudsman Rules because it is void for lack of substantial evidentiary basis. Again, to quote the appellate court: [W]e cannot consider the Decision of the Ombudsman as valid. Section 27 of Republic Act 6770 otherwise known as "An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman" provides that findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. However, per our examination of the evidence on hand, the findings of fact and conclusion by the Office of the Ombudsman in the questioned Decision are not supported by substantial evidence, and in fact, havedeviated from the correct ruling it earlier made

as to the proper body to determine the validity of the reassignments of petitioners, which is the Civil Service Commission. Consequently such findings are not binding and the decision it rendered has not attained finality. (Emphasis supplied.) The appellate court denied the petitioners motion for reconsideration in its Resolution 17 of August 1, 2002. The petitioner lodged before this Court the present petition for review on certiorari18 on the sole ground that the Ombudsman's July 28, 2000 decision exonerating him of the administrative charge is final and unappealable under the express terms of Section 7, Rule III of the Ombudsman Rules. The petitioner thus argues that the CA erred in taking cognizance of the appeal and in reversing the Ombudsmans decision. The Court's Ruling The Propriety of the Recourse Taken Before the CA The threshold issue in this petition is the procedural question of whether a complainant in an administrative case before the Office of the Ombudsman has the right to appeal a judgment exonerating the respondent from liability. By statute and regulation, a decision of the Ombudsman absolving the respondent of the administrative charge is final and unappealable. Section 7, Rule III of the Ombudsman Rules provides: SECTION 7. Finality of decision. Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him (referring to the respondent) as prescribed in Section 27 of RA 6770. (Emphasis and insertion supplied.) This rule is based on Section 27 of Republic Act No. 677019 (RA No. 6770) or the Ombudsman Act, that in turn states: SECTION 27. Effectivity and Finality of Decisions. (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory. xxx Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable.20 (emphasis supplied). Notably, exoneration is not mentioned in Section 27 as final and unappealable. However, its inclusion is implicit for, as we held in Barata v. Abalos,21 if a sentence of censure, reprimand and a one-month suspension is considered final and unappealable, so should exoneration.22

The clear import of Section 7, Rule III of the Ombudsman Rules is to deny the complainant in an administrative complaint the right to appeal where the Ombudsman has exonerated the respondent of the administrative charge, as in this case. The complainant, therefore, is not entitled to any corrective recourse, whether by motion for reconsideration in the Office of the Ombudsman, or by appeal to the courts, to effect a reversal of the exoneration. Only the respondent is granted the right to appeal but only in case he is found liable and the penalty imposed is higher than public censure, reprimand, one-month suspension or fine a equivalent to one month salary. The absence of any statutory right to appeal the exoneration of the respondent in an administrative case does not mean, however, that the complainant is left with absolutely no remedy. Over and above our statutes is the Constitution whose Section 1, Article VIII empowers the courts of justice to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. This is an overriding authority that cuts across all branches and instrumentalities of government and is implemented through the petition for certiorari that Rule 65 of the Rules of Court provides. A petition for certiorari is appropriate when a tribunal, clothed with judicial or quasi-judicial authority, acted without jurisdiction (i.e., without the appropriate legal power to resolve a case), or in excess of jurisdiction (i.e., although clothed with the appropriate power to resolve a case, it oversteps its authority as determined by law, or that it committed grave abuse of its discretion by acting either outside the contemplation of the law or in a capricious, whimsical, arbitrary or despotic manner equivalent to lack of jurisdiction).23 The Rules of Court and its provisions and jurisprudence on writs of certiorari fully apply to the Office of the Ombudsman as these Rules are suppletory to the Ombudsmans Rules.24 The Rules of Court are also the applicable rules in procedural matters on recourses to the courts and hence, are the rules the parties have to contend with in going to the CA. In the present case, the respondents did not file a Rule 65 petition for certiorari, and instead filed a petition for review under Rule 43 of the Rules of Court. A Rule 43 petition for review is effectively an appeal to the CA that RA 6770 and the Ombudsman Rules do not allow in an exoneration situation as above discussed. The respondents petition for review, however, addressed the grave abuse of discretion that the Ombudsman committed in exonerating the present petitioner. This appeal to our overriding constitutional duty and the results of our own examination of the petition compel us to exercise our liberality in applying the Rules of Court and to recognize that the recourse made to the CA had the effect of a Rule 65 petition. We consider, therefore, the respondents petition before the CA as properly filed. The Grave Abuse of Discretion a. Effect of Grave Abuse of Discretion We fully support the finding of the CA that grave abuse of discretion attended the Ombudsmans decision. As discussed above, grave abuse of discretion is a circumstance beyond the legal error committed by a decision-making agency or entity in the exercise of its jurisdiction; this circumstance affects even the authority to render judgment. Grave abuse of discretion shares this effect with such grounds as the lack of substantial supporting evidence,25 and the failure to act in contemplation of law,26 among others. In the absence of any authority to take cognizance of a case and to render a decision, any resulting decision is necessarily null and void. In turn, a null decision, by its very nature, cannot become final and can be impugned at any time. 27 In the context of the Ombudsman

operations, a void decision cannot trigger the application of Section 7, Rule III of the Ombudsman Rules. This is the step-by-step flow that arises from a finding of grave abuse of discretion, in relation with the finality and uappealability of an Ombudsman decision involving the penalties o exoneration, censure, reprimand, and suspension for not more than one month. b. The Grave Abuse of Discretion in the Context of the Case The factual starting point in the consideration of this case is the propriety of the reassignments that the petitioner, as the LWUA Administrator, ordered; this event triggered the dispute that is now before us. The reassignments, alleged to be without legal basis and arbitrary, led to the highhanded implementation that the respondents also complained about, and eventually to the CSC rulings that the respondents were constructively dismissed. They led also to the charge of harassment and oppression filed against the petitioner, which charge the Ombudsman dismissed. This dismissal, found by the CA to be attended by grave abuse of discretion, is the primary factual and legal issue we have to resolve in passing upon the propriety of the actions of the Ombudsman and the CA in the case. As the CSC and Ombudsman cases developed, the validity of the reassignments was the issue presented before CSC; the latter had the authority to declare the reassignments invalid but had no authority to penalize the petitioner for his acts. The character of the petitioners actions, alleged to be harassments and to be oppressive, were brought to the Ombudsman for administrative sanctions against the petitioner; it was the Ombudsman who had the authority to penalize the petitioner for his actions against the respondents. Under this clear demarcation, neither the CSC nor the Ombudsman intruded into each others jurisdictional domain and no forum shopping issue could have succeeded because of simultaneous recourses to these agencies. While both entities had to examine and to rule on the same set of facts, they did so for different purposes and for different resulting actions. The CSC took the graft charges the respondents brought against the petitioner into account, but this was for purposes of looking at the motive behind the reassignments and of viewing the petitioners acts in their totality. The same is true in viewing the manner of the implementation of the reassignments. Largely, however, the CSC based its ruling on a legal point that the LWUA Board, not the LWUA Administrator, can order reassignments. Thus, the CSC ruled that the reassignments constituted constructive dismissal. On the other hand, the Ombudsman, also relying on the events that transpired, should have judged the petitioners actions mainly on the basis of whether they constituted acts of harassment and oppression. In making this determination, the Ombudsman could not have escaped considering the validity of the reassignments made a determination that is primarily and authoritatively for the CSC to make. The charge of harassment and oppression would have no basis if the reassignments were in fact valid as they were alleged to be the main acts of harassment and oppression that drove the commission of the petitioners other similarly-motivated acts. In this sense, the validity of the reassignments must necessarily have to be determined first as a prior question before the full consideration of the existence of harassment or oppression could take place. Stated otherwise, any finding of harassment and oppression, or their absence, rendered without any definitive ruling on the validity of the reassignments would necessarily be premature. The finding would also suffer from the lack of factual and legal bases.

We note that the Office of the Ombudsman duly noted in its decision that the CSC has primary jurisdiction over the issue of the reassignments validity, declaring that it "can hardly arrogate unto itself the task of resolving the said issue." This is a correct reading of the law as the CSC is the central personnel agency of the government whose powers extend to all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. 28 Constitutionally, the CSC has the power and authority to administer and enforce the constitutional and statutory provisions on the merit system; promulgate policies, standards, and guidelines for the civil service; subject to certain exceptions, approve all appointments, whether original or promotional, to positions in the civil service; hear and decide administrative disciplinary cases instituted directly with it; and perform such other functions that properly belong to a central personnel agency.29Pursuant to these powers, the CSC has the authority to determine the validity of the appointments and movements of civil service personnel. Along the way, however, the Ombudsmans decision diverged from its basic legal premise when it refused to apply the rule it had acknowledged that the CSC is the "administrative body of special competence" to decide on the validity of the reassignments; it refused to accord due respect to the CSC opinion and, later, to the CSC Resolution No. 001729 on the flimsy ground that these were not yet final and conclusive. On the strength of this "nonfinality" argument, the Ombudsman proceeded to declare the reassignments presumptively regular and, finding insufficient evidence of force and intimidation in the implementation of the reassignments by the petitioner and the OICs, sustained the invalid reassignments and their complementary acts. The effect, of course, was the exoneration of the petitioner and his co-defendants of the administrative charge of oppression and harassment. To the respondents and to the CA as well, the exoneration was attended by grave abuse of discretion. c. Prematurity and Arbitrariness After due consideration reflected in the discussions below, we find the Ombudsmans decision fatally flawed for prematurity and arbitrariness, particularly for its lack of legal and factual bases. As discussed above, a CSC determination of the validity of the reassignments is a ruling that the Ombudsman must consider in reaching its own conclusion on whether the reassignments and their implementation were attended by harassment or oppression. With the CSC rulings duly pleaded, the Ombudsman should have accorded these rulings due respect and recognition. If these rulings had not attained finality because of a properly filed motion for reconsideration, the Ombudsman should have at least waited so that its own ruling on the allegations of harassment and oppression would be grounded on the findings of the governmental agency with the primary authority to resolve the validity of the reassignments. An alternative course of action for the Ombudsman to ensure that his decision would have legal and factual bases and would not be tainted with arbitrariness or abuse of discretion, would have been to undertake its own examination of these reassignments from the perspective of harassment and oppression, and to make its own findings on the validity of the petitioners actions. It should have explained in clear terms and on the basis of substantial evidence on record why no harassment or oppression attended the reassigments and their implementation. Given the duly-pleaded CSC rulings, the Office of the Ombudsman should have explained why it did not need the CSCs pronouncements in making its determination, or if needed, why they should not be followed, stating clearly what

exactly was wrong with the CSC's reasoning and why, contrary to the CSCs pronouncement, the reassignments were in fact valid and regular. Unfortunately, no such determination was ever made. Instead, the Office of the Ombudsman simply relied on the presumption of regularity in the performance of duty that it claimed the petitioner enjoyed, and from this premise, ruled that no harassment or oppression transpired in the absence of force or intimidation that attended the implementation of the reassignments. As a general rule, "official acts" enjoy the presumption of regularity, and the presumption may be overthrown only by evidence to the contrary.30 When an act is official, a presumption of regularity exists because of the assumption that the law tells the official what his duties are and that he discharged these duties accordingly. But not all acts of public officers are "official acts," i.e., acts specified by law as an official duty or as a function attached to a public position, and the presumption does not apply when an officials acts are not within the duties specified by law,31 particularly when his acts properly pertain or belong to another entity, agency, or public official. In the present case, the CSC had spoken by way of an en banc resolution, no less, that the petitioner LWUA Administrators reassignment orders were illegal because, by law, the authority to reassign officers and employees of the LWUA lies with the LWUA Board; the LWUA Administrators authority is merely to recommend a reassignment to the Board. For reason of its own, the Office of the Ombudsman disregarded this clear statement of the legal allocation of authority on the matter of reassignments.1avvphi1 This omission cannot but have fatal consequences for the Ombudsmans decision, anchored as it is on the presumption that the petitioner regularly performed his duty. For, shorn of any basis in law, the petitioner could not have acted with official authority and no presumption of regularity could have been applied in his behalf. Without a valid presumption of regularity, the major linchpin in the Ombudsmans decision is totally removed and the decision is left with nothing to support itself. An administrative decision, in order to be valid, should have, among others, "something to support itself."32 It must supported by substantial evidence, or that amount of relevant evidence adequate and acceptable enough for a reasonable mind to justify a conclusion or support a decision,33 even if other minds equally reasonable might conceivably opine otherwise.34 We note in this regard that the Office of the Ombudsman, other than through its "non-finality" argument, completely failed to explain why the reassignment orders were valid and regular and not oppressive as the respondents alleged. Effectively, it failed to rebut the CSCs declaration that a constructive dismissal took place. This omission is critical because the constructive dismissal conclusion relates back to the filing of graft charges against the petitioner as motive; explains why the respondents were transferred to ad hoc positions with no clear duties; and relates forward to the manner the respondents were ejected from their respective offices. If the Ombudsman made any factual finding at all, the finding was solely on the lack of violence or intimidation in the respondents ejectment from their offices. Violence or intimidation, however, are not the only indicators of harassment and oppression as jurisprudence shows.35 They are not the sole indicators in the context of the Ombudsmans decision because the findings in this regard solely relate to the implementation aspect of the reassignments ordered. We take judicial notice that harassments and oppression do not

necessarily come in single isolated acts; they may come in a series of acts that torment, pester, annoy, irritate and disturb another and prejudice him; in the context of this case, the prejudice relates to the respondents work. Thus, a holistic view must be taken to determine if one is being harassed or oppressed by another. In this sense, and given the facts found by the CA, the Ombudsman ruling dwelling solely with the absence of violence and intimidation is a fatally incomplete ruling; it is not a ruling negating harassment and oppression that we can accept under the circumstances of this case. Effectively, it was an arbitrary ruling for lack of substantial support in evidence. The other end of the spectrum in viewing the reassignments and its related events, is the position the CSC and the CA have taken. The appellate court stated in its own decision: We likewise agree with the Civil Service Commission that respondent Administrator acted in bad faith in reassigning the petitioners barely ten (10) days after the latter filed their complaint against him for violation of the Anti-Graft and Corrupt Practices Act. No reassignment shall be undertaken if done whimsically because the law is not intended as a convenient shield for the appointing/disciplining authority to harass or suppress a subordinate on the pretext of advancing and promoting public interest (Section 6, Rule III of Civil Service Commission Memorandum Circular No. 40. S. 1998). Additionally, the reassignments involved a reduction in rank as petitioners were consigned to a "floating assignment with no specificity as to functions, duties, and responsibilities" resulting in the removal from their supervision over their regular staff, subordinates, and even offices. Finally, the subsequent Order of respondent Administrator directing petitioners to desist from performing and exercising the functions of their respective positions constituted constructive dismissal. We hold that, based on the evidence presented, respondent Administrator is guilty of harassment and oppression as charged, penalized as grave offense under Executive Order No. 292 (Civil Service Law), section 22 (n) with suspension for six (6) months and one (1) day to one (1) year." We fully agree that the reassignments the petitioner ordered were done in bad faith amounting to constructive dismissal and abuse of authority. We affirm as well the CAs ruling finding that petitioner should be liable for oppression against the respondents. d. The Appropriate Penalty Oppression is characterized as a grave offense under Sec. 52(A)(14) 36 of the Uniform Rules on Administrative Cases in the Civil Service37 and Sec. 22(n)38 of the Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws, 39 penalized with suspension of 6 months and 1 day to 1 year on the first offense.1avvphi1 Considering that the oppression found was not a simple one, but was in response to the respondents filing of an anti-graft complaint against the petitioner, the penalty we should impose should reflect the graft-related origin of this case and should be in the maximum degree. Consequently, we modify the CA decision by increasing the penalty to suspension for one (1) year, in lieu of the six (6) months and one (1) day that the appellate court imposed. If the petitioner is no longer in the service, then the suspension should automatically take the form of a fine equivalent to the petitioners one-year salary at the time of his separation from the service.

WHEREFORE, the petition is DENIED. We AFFIRM the Court of Appeals Decision and Resolution dated November 27, 2001 and August 1, 2002, respectively, with the MODIFICATION that the penalty imposed is suspension of one (1) year, or, alternatively, a fine equivalent to one-year salary if the petitioner has been separated from the service at the time of the finality of this Decision. Costs against the petitioner. SO ORDERED. G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner, vs. RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents. CONCEPCION, J.: This is an original action for prohibition with preliminary injunction. It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents herein 1 for the implementation of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn filed the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any other government agency;" that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the preservation of the rights of the parties during the pendency this case and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith issued restraining respondent their agents or representatives from implementing the decision of the Executive Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction permanent. Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later on, that the resolution said incident may require some pronouncements that would be more appropriate in a decision on the merits of the case, the same was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally, although counsel for respondents filed their memoranda. I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn Administration or any other government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these basic foods directly from those tenants, farmers, growers, producers and landowners in the Philippines who wish to dispose of their products at a price that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion, 2 is entitled to a chance to sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with public funds mainly raised by taxation, and as a rice producer and landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said funds. II. Exhaustion of administrative remedies. Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all administrative remedies available to him before coming to court". We have already held, however, that the principle requiring the previous exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal one", 3 or where the controverted act is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where the respondent is a department secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the latter, 5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency of judicial intervention.7 The case at bar fails under each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore, untenable. III. Merits of petitioner's cause of action. Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1; 8 that in cases of necessity, the President "or his subordinates may take such preventive measure for the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or emergency withoutwaiting for any special authority". Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein - on which our view need not be expressed we are unanimously of the opinion - assuming that said Republic Act No. 2207 is still in force that the two Acts are applicable to the proposed importation in question because the language of said laws is such as to include within the purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation orgovernment agency to import rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the President of the Philippines may authorize the importation of these commodities through any government agency that he may designate", is the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any government agency" from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the importation of rice and corn by any "government agency", do not apply to importations "made by the Government itself", because the latter is not a "government agency". This theory is devoid of merit. The Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein, and each and every officer and employee of our Government, our government agencies and/or agents. The applicability of said laws even to importations by the Government as such, becomes more apparent when we consider that: 1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the Philippines" and, hence, by or on behalf of the Government of the Philippines; 2. Immediately after enjoining the Rice and Corn administration and any other government agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn is left to private parties upon payment of the corresponding taxes", thus indicating that only "private parties" may import rice under its provisions; and 3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a public official and/or employees", he shall be subject to the additional penalty specified therein. A public official is an officer of the Government itself, as distinguished from officers or employees of instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the Government, unlike those of a government instrumentality which may have a personality of its own, distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employee of the Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to transactions made by the very government is patent. Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the preference in the purchase of articles for the Government." Pursuant to Section 1 thereof: The Purchase and Equipment Division of the Government of the Philippines and other officers and employees of the municipal and provincial governments and the Government of the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices, agencies, branches, and bodies of any description, including government-owned companies, authorized to requisition, purchase, or contract or make disbursements for articles, materials, and supplies for public use, public buildings, or public works shall give preference to materials ... produced ... in the Philippines or in the United States, and to domestic entities, subject to the conditions hereinbelow specified. (Emphasis supplied.) Under this provision, in all purchases by the Government, including those made by and/or for the armed forces,preference shall be given to materials produced in the Philippines. The importation involved in the case at bar violates this general policy of our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia problem" - and the alleged powers of the President as Commanderin-Chief of all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were so made as to discourage our farmers from engaging in the production of rice. Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such quantities as it may deem proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a national reserve ... be deposited by the administration throughout the country under the proper dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...". (Emphasis applied.) Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not self-executory. They merely outline the general objectives of said legislation. The means for the attainment of those objectives are subject to congressional legislation. Thus, the conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in which resources necessary for our national defense may be secured by the Government of the Philippines, but only "during a national mobilization",9which does not exist. Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in such manner as Congress may by other laws provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws. Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited10 shows that Corwin referred to the powers of the President during "war time" 11 or when he has placed the country or a part thereof under "martial law". 12 Since neither condition obtains in the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it would keep us perpetually under martial law. It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus populi est suprema lex, it is said. If there were a local shortage of rice, the argument might have some value. But the respondents, as officials of this Government, have expressly affirmed again and again that there is no rice shortage. And the importation is avowedly for stockpile of the Army not the civilian population. But let us follow the respondents' trend of thought. It has a more serious implication that appears on the surface. It implies that if an executive officer believes that compliance with a certain statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule of law.

And then, "the people" are either producers or consumers. Now as respondents explicitly admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in the compliance with said Acts. It is not for respondent executive officers now to set their own opinions against that of the Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation but under certain conditions, which have not been, and should be complied with. IV. The contracts with Vietnam and Burma It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding effective upon the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved under the American jurisprudence in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit in this pretense. The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. The American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, alsoinsist that the contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up and that of the United States. As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the

affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic, Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice, but from importing rice, except under the conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the Government to purchase rice and corn directly from our local planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves such importations to private parties. The pivotal issue in this case is whether the proposed importation which has not been consummated as yet is legally feasible. Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of such obligations as it may have contracted with the sellers of the rice in question, because, aside from the fact that said obligations may be complied with without importing the commodity into the Philippines, the proposed importation may still be legalized by complying with the provisions of the aforementioned laws. V. The writ of preliminary injunction. The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined from implementing the aforementioned proposed importation. However, the majority favors the negative view, for which reason the injunction prayed for cannot be granted. WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered. G.R. No. 157972 October 30, 2006

HRS. OF SPS. LUCIANO and CONSOLACION VENTURILLO, Represented by ROWENA B. VENTURILLO-SUCALDITO, petitioners, vs. HON. JESUS V. QUITAIN, Presiding Judge, RTC-Br. 15, 11th Judicial Region, Davao City and ENG'R. MEINRADO R. METRAN, City Engineer and Building Official of The City of Davao, respondents. DECISION TINGA, J.:

The Heirs of Spouses Luciano and Consolacion Venturillo (Heirs of Venturillo), represented by Rowena B. Venturillo-Sucaldito, assail for having been issued with grave abuse of discretion the Order1 dated April 22, 2003 of the Regional Trial Court of Davao City, Branch 15, which dismissed their petition for mandamus and denied their prayer for injunctive relief. The following statement of facts is taken from the Court's Resolution2 dated May 15, 2003: Sometime in 1942, the Spouses Luciano and Consolacion Venturillo occupied a 678-square meter lot in Poblacion, Davao City, said lot being public land. The Venturillo couple erected a house on the said property and begot 11 children, the petitioners herein, during their lifetime. In 1974, the Davao City Assessor's Office directed the Venturillos to file a Tax Declaration. They complied with the said directive and paid the required taxes. The petitioners then continued the renewal of the tax declarations and paying of taxes. Sometime in 2000, Rowena Venturillo-Sucaldito filed a sales application with the Department of Environment and Natural Resources (DENR) and the DENR wrote the City Government for its comments regarding her application. In response, respondent City Engineer sent an inspection team to check out the property. On June 8, 2000, the inspectors submitted a report recommending the approval of Sucaldito's application. No immediate action, however, was taken by respondent City Engineer on the report. On October 4, 2001, respondent City Engineer asked the petitioners to secure a building permit for the house erected on the lot, after it was shown that said structure had no building permit. The petitioners then hired an engineer who prepared the necessary plans and other documents, which were submitted to the respondent City Engineer. On October 27, 2002, the Sanggunian Barangay of Barangay 4-A, Poblacion, Davao City passed a resolution requesting the Sanggunian Panglungsud of Davao City to declare the portion of the proposed extension of Mayon St., as "suppressed road." On January 8, 2003, respondent City Engineer sent petitioners a Notice of Order of Removal. On February 13, 2003, the Zoning Administrator wrote petitioners that the area they were occupying is a road right-of-way. On March 20, 2003, the petitioners herein filed a petition for mandamus with urgent prayer for temporary restraining order (TRO) and preliminary injunction against respondent City Engineer with the RTC of Davao City, docketed as SP Civil Case No. 29597-2003. The trial court granted the temporary restraining order prayed for.

On March 25, 2003, the trial court ordered the parties in a hearing set for March 27, 2003 to determine whether the TRO should be extended for 17 days. Said hearing, however, was cancelled at the manifestation of the respondent City Engineer. On March 31, 2003, the hearing for the writ of preliminary injunction was set for April 14-15, 2003. On April 8, 2003, respondent City Engineer moved for an extension of time to file his answer to the petition. On April 15, 2003, the respondent City Engineer manifested in open court that he was not opposing the application for a writ of preliminary injunction. The trial court then ordered the petitioners to submit their formal offer of exhibits to support their application on April 21, 2003 and the City Engineer to comment upon the same within five days from receipt, after which the trial court would rule upon the application for injunction. On April 22, 2003, petitioner moved to have their tardily filed formal exhibits admitted and submitted their formal offer of exhibits. That same day, the trial court denied the issuance of the writ of preliminary injunction and dismissed the SP Civil Case No. 29597-2003. The Heirs of Venturillo allege that the trial court gravely abused its discretion when it dismissed their petition for mandamus and denied their prayer for injunction without: (1) ruling on the admissibility of their admittedly tardy formal offer of exhibits; (2) waiting for respondent City Engineer's comment or objection to said formal offer; and (3) without waiting for the answer of the City Engineer in the mandamus case. In the afore-cited Resolution dated May 15, 2003, the Court, ruling that there is a need to maintain the last, actual, peaceable, and uncontested state of things which preceded the present controversy, directed the parties to maintain the status quo. The Office of the City Legal Officer filed a Comment3 dated July 31, 2003 on behalf of respondent City Engineer Meinrado R. Metran, contending that the trial court's dismissal of the petition for mandamus and denial of the prayer for injunction do not constitute grave abuse of discretion. According to respondent, the Heirs of Venturillo were not able to establish any legal right to demand the issuance of a building permit because the lot on which their structure was constructed remains to be public land delineated as a road right-ofway. Although the Heirs of Venturillo filed a sales application with the DENR, their application was not processed. Moreover, the Heirs of Venturillo allegedly failed to comply with the indispensable requirement of filing a motion for reconsideration before they sought recourse to this Court via a petition for certiorari. Neither did they file an appeal of the trial court's final Order. The Heirs of Venturillo filed a Reply4 dated December 15, 2003 reiterating their arguments.

In the Resolution5 dated May 19, 2004, the parties were required to file their respective memoranda. Thus, respondent filed a Memorandum 6 dated July 15, 2004, while the Heirs of Venturillo filed their Memorandum 7 on September 21, 2004. The general rule is that the remedy to obtain reversal or modification of a judgment on the merits is appeal. This is true even if the error ascribed to the court which rendered judgment is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof, or grave abuse of discretion in the findings of fact or of law set out in the decision.8 In this case, the Heirs of Venturillo received the assailed Order of the trial court on April 25, 2003. They therefore had 15 days from this date, or until May 10, 2003, within which to file an appeal to the Court of Appeals under Rule 41 of the 1997 Rules of Civil Procedure (Rules of Court) or a petition for review on certiorari to this Court under Rule 45 of the same rules. However, in the guise of availing of a petition for certiorari under Rule 65 of the Rules of Court, the Heirs of Venturillo filed their petition only on May 12, 2003. It is axiomatic that the special civil action of certiorari cannot be used as a substitute for the lost or lapsed remedy of appeal.9 Even assuming that the Heirs of Venturillo have a cause of action ripe for the extraordinary writ of certiorari, they clearly disregarded the hierarchy of courts when they directly filed their petition with this Court without adducing any special and important reason or exceptional or compelling circumstance for such a recourse. Considering that the special civil action of certiorari under Rule 65 of the Rules of Court is within the concurrent original jurisdiction of the Supreme Court and the Court of Appeals, the petition should have been initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts. 10 Moreover, the Heirs of Venturillo failed to file a motion for reconsideration of the trial court's Order, depriving the latter of the opportunity to correct whatever error it may have committed. Rule 65 of the Rules of Court requires that petitioner be left with "no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law."11 A motion for reconsideration is a plain, speedy, and adequate remedy. The filing thereof is a condition precedent in order that a petition for certiorari may be given due course. 12 Although there are certain recognized exceptions to this rule, such as where the order is a patent nullity for lack of jurisdiction on the part of the court which rendered it, or where the questions raised in the certiorari proceeding have been duly raised and passed upon in the lower court,13 we find no such exception in this case which would warrant a departure from the rule. Regional Trial Courts are fully clothed with jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions. Moreover, the question of whether it should have first ruled on the admissibility of the tardy formal offer of exhibits filed by the Heirs of Venturillo, and waited for respondent's comment or objection to said formal offer and answer in the mandamus case, were not raised and passed upon by the trial court precisely because the Heirs of Venturillo failed to file a motion for reconsideration. Had they done so, the trial court would have been given the opportunity to correct any factual or fancied error attributed to it by way of re-examination of the legal and factual aspects of the case.

These procedural errors, notwithstanding, and in the interest of finally disposing of this case, we reviewed its merits and found that indeed grave abuse of discretion attended the issuance of the assailed Order of the trial court. The remedy of mandamus lies to compel the performance of a ministerial duty. 14 A purely ministerial act or duty, in contradistinction to a discretionary act, is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer, and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial.15 The issuance of a building permit may be considered a ministerial duty only when the application and the plans are in conformity with the requirements of zoning and land use, lines and grades, structural design, sanitary and sewerage, environmental health, electrical and mechanical safety as well as with other rules and regulations promulgated in accordance with the provisions of the National Building Code. 16 In this case, the Heirs of Venturillo complied with all the requirements for the procurement of a building permit enumerated under the National Building Code, such as the description of the work to be covered by the permit applied for; description and ownership of the lot on which the proposed work is to be done; the use or occupancy for which the proposed work is intended; estimated cost of the proposed work; and the plans and specifications prepared, signed and sealed by a duly licensed engineer.17 They also paid the requisite fees for the application.18 Having done so, it became incumbent upon respondent City Engineer to issue the building permit applied for. His refusal to perform an act which the law enjoins him to do, upon the full compliance by the Heirs of Venturillo of the conditions provided under the law, entitles the latter to the writ of mandamus prayed for. By the same token, the Heirs of Venturillo are entitled to a writ of injunction to prevent the threatened summary demolition of their residence. The requisites for an injunctive writ to issue are that: (1) the petitioner/applicant must have a clear and unmistakable right; (2) there is a material and substantial invasion of such right; and (3) there is an urgent and permanent necessity for the writ to prevent serious damage.19 Respondent City Engineer's refusal to issue the building permit and concomitant order for the Heirs of Venturillo to cause the demolition of their house or else the same shall be summarily demolished20 are premised on the fact that the house which the Heirs of Venturillo intended to refurbish stands in the middle of the proposed extension of Mt. Mayon Street, an area which had been declared as a road right-of-way by the City Government. It should be emphasized, however, that the Heirs of Venturillo, through their parents, have continuously possessed and occupied the land on which the house sought to be refurbished stands since 1942. This possession was with the tacit consent and authorization of the City Government. In fact, the City Assessor's Office directed the Venturillos to file tax declarations and pay real property taxes thereon which they have consistently complied with.

In Estate of Gregoria Francisco v. Court of Appeals,21 the municipal mayor of Isabela, Basilan ordered the summary demolition, without judicial authority, of a quonset building which stood on a lot owned by the Philippine Ports Authority. The municipal mayor justified the demolition as an exercise of police power and for reasons of health, safety and general welfare. The Court awarded just compensation the amount of which was for the trial court to determine in favor of the petitioner whose building was demolished by the municipality even before a proper tribunal could decide whether or not the building constituted a nuisance in law. The ruling was premised on the ground that the owner of the building was in lawful possession of the lot and the building by virtue of the permit from the authorized government agency when the demolition was affected. In the same vein, by virtue of the City Government's tacit consent, the Heirs of Venturillo are not squatters on public land but are in lawful possession thereof, including the house subject of the summary demolition order of respondent City Engineer. The Heirs of Venturillo have a clear and unmistakable legal right not to be disturbed in their lawful possession of the property unless the proper judicial tribunal has determined that the same constitutes a nuisance in law. The trial court should have issued an injunctive writ to prevent the imminent threat of summary demolition of the Heirs of Venturillo's residence without judicial proceedings. That it failed to safeguard petitioners' right to due process constitutes grave abuse of discretion. WHEREFORE, the instant petition is GRANTED. The Order dated April 22, 2003 of the Regional Trial Court of Davao City, Branch 15, is ANNULLED and SET ASIDE. The public respondent City Engineer of Davao City is DIRECTED to issue in favor of petitioners the building permit applied for. He is further ORDERED to CEASE and DESIST from enforcing the Order of Removal dated January 8, 2003. No pronouncement as to costs. SO ORDERED. G.R. No. 74720 August 31, 1987 ROBERTO IGNACIO, petitioner, vs. LEONCIO BANATE, JR., HON. AQUILINO PIMENTEL, in his capacity as Minister of Local Governments and Community Development and the CITY TREASURER OF ROXAS CITY, respondents. GUTIERREZ, JR., J.: This petition for quo warranto and prohibition with prayer for preliminary and temporary restraining order seeks to nullify the appointment or designation of private respondent Leoncio Banate, Jr., as a member of the Sangguniang Panlungsod of the City of Roxas. The petitioner was elected Barangay Captain of Barangay Tanza, Roxas City on May 17, 1982, for a term of six years which commenced on June 7,1982.

Subsequently, he was elected President of the Association of Barangay Councils or Katipunang Panlungsod Ng Mga Barangay in Roxas City, in accordance with the Local Government Code and the implementing rules and regulations of the Katipunan. By virtue of his being President of the Katipunang Panlungsod Ng Mga Barangay, he was appointed a member of the Sangguniang Panlungsod or City Council of the Roxas City by then President Marcos. As such member, he took his oath of office on June 24, 1982. On May 9, 1986, respondent Minister Aquilino Pimentel designated Leoncio Banate, Jr., as member of the Sangguniang Panlungsod of Roxas City, to replace the petitioner. The petitioner contends that respondent Banate is not qualified to be a member of the Sangguniang Panlungsod and to replace him as the representative of the Katipunan Ng Mga Barangay of Roxas City because his membership in the city council as Katipunan President is governed by the Local Government Code (BP Blg. 337), particularly Sec. 173 which provides that: Sec. 173. Composition and Compensation. (l) sangguniang panlungsod as the legislative body of the city, shall be composed of the vice-mayor, as presiding officer, the elected sangguniang panlungsod members, and the members who may be appointed by the President of the Philippines consisting of the presidents of the katipunan panlungsod ng mga barangay and the kabataang barangay city federation. xxx xxx xxx According to the petitioner, his appointment as member of the Sangguniang Panlungsod was by virtue of his having been elected by the Katipunang Panlungsod Ng Mga Barangay of said city as president thereof in accordance with BP Blg. 337 while respondent Banate is not an officer, much less President of the Katipunang Panlungsod Ng Mga Barangay of Roxas City and has not been duly elected for any of said positions. The petitioner further argues that the appointment of respondent Banate by Minister Pimentel is invalid considering that under Sec. 173 of the Local Government Code, it is the President of the Philippines and not the Minister of Local Governments who has the power and authority to appoint the President of the Katipunang Panlungsod Ng Mga Barangay as member of the Sangguniang Panlungsod. He claims that this appointment power cannot be delegated to said minister for this is a strictly personal act which the Constitution and the laws specifically ordain to be performed by the President alone. The Solicitor General countered that under the Local Government Code (BP Blg. 337), the terms of office of local government officials commenced on the first Monday of March 1980 and ended on March 28, 1986. The period was extended to June 30, 1986 by the Omnibus Election Code of 1985 (BP Blg. 881). He states that the petitioner, as an appointive local government official who assumed office under the 1973 Constitution, is covered by the provisions of Section 2, Article III of Proclamation No. 3 issued by President Corazon C. Aquino, which provides that "All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986."

With respect to the argument of the petitioner that the appointing power of the President of the Philippines cannot be delegated to Minister Pimentel, the Solicitor General replied that under the provisions of Section 2, Article III of Proclamation No. 3, dated March 25, 1986, issued by President Corazon C. Aquino, otherwise known as the Provisional Constitution, the power to delegate or appoint officers-in-charge in replacement of local government officials by then Minister Aquilino Pimentel, Jr., as alter ego of the President of the Philippines, has been upheld by this Court in several cases. We find the petition to be meritorious. It is true that Minister Pimentel, as cabinet member, is the alter ego of the President in appointing a public officer. His authority to designate or appoint local officials in an acting capacity has been upheld by this Court. (Topacio, Jr., v. Pimentel, G.R. No. 73770; Velasco v. Pimentel, G.R. No. 73811; Governors of the Philippines v. Pimentel, G. R. No. 73823; The Municipal Mayors League of the Philippines, et al., v. Pimentel, G. R. 73940; and Solis v. Pimentel, et al., G. R. No. 73970, April 10, 1986) We must stress, however, that the appointee to a Sangguniang Panlungsod who sits there as a representative of the barangays must meet the qualifications required by law for the position. An unqualified person cannot be appointed a member even in an acting capacity. It must be noted that the petitioner is an elected barangay captain of Barangay Tanza, Roxas City. As barangay captain, he was subsequently elected President of the Association of Barangay Councils of Roxas City. It was by reason of his being the president of the Association of Barangay Councils of Roxas City that the President of the Philippines appointed him as member of the Sangguniang Panlungsod. This was pursuant to Section 3, paragraph 1 of BP Blg. 51 (An Act Providing for the Elective- or Appointive Positions in Various Local Governments and for Other Purposes), which provides that: Sec. 3. Cities. There shall be in each city such elective local officials as provided in their respective charters, including the city mayor, the city vice-mayor, and the elective members of the sangguniangpanlungsod, all of whom shall be elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang panlungsod members consisting of the president of the city association of barangay councils, the president of the city federation of the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be appointed by the president wherever, as determined by the sangguniang panglungsod, said sectors are of sufficient number in the city to warrant representative. (Emphasis supplied). The aforequoted provision of law is complemented by Section 173 of the Local Government Code (BP Blg. 337) cited earlier. The private respondent in this case, not being a barangay Captain and never having been elected president of the association of barangay councils, cannot be appointed a member of the sangguniang panlungsod. He lacks the eligibility and qualification required by law. Subject to constitutional restrictions, the Congress or the legislative authority may determine the eligibility and qualification of officers and provide the method for filling them (People v. Carlos, 78 Phil. 535). The lawmaker's mandate has not been complied with.

The Authority exercised by the respondent Minister of Local Government must be read, however, in the context of the constitutional provision upon which it is based. Section 2, Article III of the Provisional Constitution of 1986, Proclamation No. 3 of President Corazon C. Aquino provides: All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986. (Emphasi supplied). The petitioner, as one who was appointed under the 1973 Constitution continues in office until the appointment and qualification of his successor. Since the appointment of his successor, respondent Banate, is not valid, the tenure of petitioner Ignacio could not be terminated on that basis alone. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby GRANTED. The appointment/designation of private respondent Banate as member of the Sangguniang Panlungsod of the City of Roxas representing the Katipunang Panlungsod Ng Mga Barangay is DECLARED NULL and VOID. Petitioner ROBERTO IGNACIO is ordered REINSTATED as member of said Sangguniang Panlungsod. SO ORDERED. G.R. No. L-1612 February 26, 1948

JORGE B. VARGAS, petitioner, vs. EMILIO RILLORAZA, JOSE BERNABE, MANUEL ESCUDERO, Judges of the People's Court, and THE SOLICITOR GENERAL OF THE PHILIPPINES, respondents. HILADO, J.: Counsel for the defense, in a motion dated August 28, 1947, assails the constitutionality of section 14 of the People's Court Act (Commonwealth Act No. 682) upon the following grounds: (a) It provides for qualification of members of the Supreme Court, other than those provided in section 6, Article VIII of the Philippine Constitution. (b) It authorizes the appointment of members of the Supreme Court who do not possess the qualifications set forth in section 6, Article VIII, of the Philippine Constitution. (c) It removes from office the members of the Supreme Court by means of a procedure other than impeachment, contrary to Article IX, of the Philippine Constitution.

(d) It deprives the Commission on Appointments of Congress of its constitutional prerogative to confirm or reject appointments to the Supreme Court. (e) It creates two Supreme Courts. (f) it impairs the rule making power of the Supreme Court, contrary to section 13, Article VIII of the Philippine Constitution. (g) It is a Bill of Attainder, for it punishes by disqualification members of the Supreme Court who rendered said public service during the Japanese occupation. (h) It denies equal protection of the laws. (i) It is an ex post pacto legislation. (j) It amends the Constitution by a procedure not sanctioned by Article XV, of the Philippine Constitution. (k) It destroys the independence of the Judiciary, and it permits the "packing" of the Supreme Court in certain cases, either by Congress or by the President. The Solicitor General, in behalf of the prosecution, opposes the motion and in support of his opposition submits these propositions: 1. Power of Congress to enact section 14 of Commonwealth Act No. 682. 2. Section 14 of Commonwealth Act No. 682 does not and is not intended to provide an additional qualification for members of the Supreme Court, much less does it amend section 6, Article VIII, of the Constitution of the Philippines. 3. Qualifications of members of the Supreme Court prescribed in section 6, Article VIII of the Constitution apply to permanent "appointees" not to temporary "designees." 4. Section 5, Article VIII of the Constitution is not applicable to temporary designations under section 14, Commonwealth Act No. 682. 5. It does not remove but merely disqualifies the members of the Supreme Court affected to sit and vote in the particular class of cases therein mentioned. 6. It does not create an additional "Special Supreme Court." 7. It does not impair the rule-making power of the Supreme Court but merely supplements the Rules of Court. 8. It is not a bill of attainder.

9. It is not an ex post pacto law. 10. It does not deny equal protection of the laws either to the Justices of the Supreme Court affected or the treason indicates concerned. 11. It does not amend any constitutional provision. 12. It does not destroy the independence of the judiciary or curtail the jurisdiction of the Supreme Court. This opposition is a reproduction by reference in the instant case of a similar pleading filed by the Solicitor General in G.R. No. L-398, People vs. Sison, pursuant to the resolution of this Court in the instant case dated October 30, 1947, granting the prayer of the Assistant Solicitor General that in the consideration of petitioner's memorandum herein of September 27, 1947. It will not be necessary for the purposes of this resolution to consider and decide all the legal questions thus raised by these conflicting contentions of the parties. For the purposes of the present resolution, the considerations presently to be set forth are deemed insufficient. Article VIII, section 4, of the Constitution ordains that the Supreme Court shall be composed of a Chief Justice and ten Associate Justices and may sit either in banc or in two divisions unless otherwise provided by law. Section 5 of the same Article provides, inter alia, that the members of the Supreme Court shall be appointed by the President with the consent of the Commission on Appointments. Section 6 of the same Article stipulates that no person may be appointed member of the Supreme Court unless he has been five years a citizen of the Philippines, is at least 40 years of age, and has for 10 years or more been a judge of a court of record or engaged in the practice of law in the Philippines. By virtue of section 9 of said Article, the members of the Supreme Court, among other judicial officials, shall not hold office during good behavior, until they reach, the age of 70 years, or become incapacitated, or become incapacitated to discharge the duties of their office. Section 13 of the same Article VIII, inter alia, enunciates procedure thereby repealed as statutes and are declared rules of court, subject to the power of the Supreme Court to alter and modify the same, and to the power of the Congress to repeal, alter, or supplement them. Art. XVI, section 2, provides that "all laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth, and thereafter they shall remain operative unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines ..." Before the adoption of the Constitution, the law on disqualification of judges was contained in the Code of Civil Procedure, sections 8 and 608. If said sections should be considered as parts of the then existing adjective legislation, Article VIII, section 13, of the constitution repealed them along with the others dealing with pleading, practice and procedure, as statutes, and declared them rules of court, subject to the power of the Supreme Court to alter and modify the same, without prejudice to the power of the Congress to repeal, alter or supplement them. In such case, when the Constitution so provided in said section 13, it sanctioned as rules of court, among other provisions, those in said sections 8 and 609 of the former Code of Civil Procedure concerning the disqualification of judges. If said sections should be deemed as pertaining to then existing substantive legislation, then they were continued as laws or statutes by the aforecited provision of Article XVI, section 2.

By virtue either of Article VIII, section 13, or Article XVI, section 2, of the constitution, therefore, the grounds for disqualifying judges, which had been held to include justices of the Supreme Court (Jurado & Co, vs. Hongkong & Shanghai Banking Corporation, 1 Phil., 395) were those established in sections 8 and 608 of the former Code of Civil Procedure. The Supreme Court later promulgated the present Rules of Court wherein Rule 123 treats of the matter of disqualification of judicial officers. The provisions of said rule have been taken from the above-cited sections 8 and 608 of the same former Code of Civil Procedure (see also II Moran, Comments on the Rules of Court, 2d ed., pp. 779-782). By reason of the fact that the aforementioned provisions of the former Code of Civil Procedure were continued by the constitution itself, either as rules of court or as laws or statutes a point we need not now decide there can be no question of unconstitutionality or repugnancy of said provisions to the constitution as regards the disqualification of judicial officers. In other words, the framers deemed it fit, right and proper that said provisions shall continue to govern the disqualification of judicial officers. Such question of unconstitutionality or repugnancy to the constitution, however, arises in relation to the disqualification of certain members of the Supreme Court provided for in section 14 of the People's Court Act which says: SEC. 14. Any Justice of the Supreme Court who held any office or position under the Philippine Executive Commission or under the government called Philippine Republic may not sit and vote in any case brought to that Court under section thirteen hereof in which the accused is a person who held any office or position under either or both the Philippine Executive Commission and the Philippine Republic or any branch, instrumentality and/or agency thereof. If, on account of such disqualification, or because of any of the grounds or disqualification of judges, in Rule 126, section 1 of the Rules of Court, or on account of illness, absence of temporary disability the requisite number of Justices necessary to constitute a quorum or to render judgment in any case is not present, the President may designate such number of Judges of First Instance, Judges-at-large of First Instance, or Cadastral Judges, having none of the disqualifications set forth in said section one hereof, as may be necessary to sit temporarily as Justice of said Court, in order to form a quorum or until a judgment in said case is reached. We propose to approach this question from the following angles: (a) whether or not the Congress had power to ass to the pre-existing grounds of disqualification of a Justice of the Supreme Court, that provided for in said section 14; (b) whether or not a person may act as a Justice of the Supreme Court who has not been duly appointed by the President and confirmed by the Commission on Appointments pursuant to the constitution , even only as a "designee"; and (c) whether or not by the method of "designation" created by the aforecited section 14 a Judge of First Instance, Judge-at-large of First Instance, or Cadastral Judge, designated by the President under the same section can constitutionally "sit temporarily as Justice" of the Supreme Court by virtue thereof. (a) We start with the principle, well known to the legal profession, that no act of the legislature repugnant to the constitution can become law (In re Guaria, 24 Phil., 37, 45; Marbury vs. Madison, 1 Cranch 175). To discover whether the above quoted section 14 of the People's Court Act is repugnant to the constitution, one of the best tests would be to compare the operation with the same section if the latter were to be allowed to produce its effects. It is self evident that before the enactment of the oft-quoted section of the People's

Court Act, it was not only the power but the bounden duty of all members of the Supreme Court to sit in judgment in all treason cases duly brought or appealed to the Court. That power and that duty arise from the above cited sections of Article VIII of the Constitution, namely, section 4, providing how the court shall be composed and how it may sit, section 9, ordaining that they shall hold office during good behavior until they reach the age of seventy years or become, incapacitated to discharge the duties of their office, and the pertinent constitutional and statutory provisions bearing on the jurisdiction, powers and responsibilities of the Supreme Court. Competently referring to the instant case, if section 14 of the People's Court Act had not been inserted therein, there can be no question that each and every member of this Court would have to sit in judgment in said case. But if said section 14 were to be effective, such members of the Court "who held any office or position under the Philippine Executive Commission or under the government called Philippine Republic" would be disqualified from sitting and voting in the instant case, because the accused herein is a person who likewise held an office or position at least under the Philippine Executive Commission. In other words, what the constitution in this respect ordained as a power and a duty to be exercised and fulfilled by said members of the People's Court Act would prohibit them from exercising and fulfilling. What the constitution directs the section prohibits. A clearer case of repugnancy of fundamental law can hardly be imagined. For repugnancy to result it is not necessary that there should be an actual removal of the disqualified Justice from his office for, as above demonstrated, were it not for the challenged section 14 there would have been anuninterrupted continuity in the tenure of the displaced Justice and in his exercise of the powers and fulfillment of the duties appertaining to his office, saving only proper cases or disqualification under Rule 126. What matters here is not only that the Justice affected continue to be a member of the Court and to enjoy the emoluments as well as to exercise the other powers and fulfill the other duties of his office, but that he be left unhampered to exercise all the powers and fulfill all the responsibilities of said office in all cases properly coming before his Court under the constitution, again without prejudice to proper cases of disqualification under Rule 126. Any statute enacted by the legislature which would impede him in this regard, in the words of this Court in In re Guaria,supra, citing Marbury vs. Madison, supra, "simply can not become law." It goes without saying that, whether the matter of disqualification of judicial officers belong to the realm of adjective, or to that of substantive law, whatever modifications, change or innovation the legislature may propose to introduce therein, must not in any way contravene the provisions of the constitution, nor be repugnant to the genius of the governmental system established thereby. The tripartite system, the mutual independence of the three departments in particular, the independence of the judiciary , the scheme of checks and balances, are commonplaces in democratic governments like this Republic. No legislation may be allowed which would destroy or tend to destroy any of them. Under Article VIII, section 2 (4) of the Constitution the Supreme Court may not be deprived of its appellate jurisdiction, among others, over those criminal cases where the penalty may be death or life imprisonment. Pursuant to Article VIII, sections 4, 5, 6, and 9 of the Constitution the jurisdiction of the Supreme Court may only be exercised by the Chief Justice with the consent of the Commission of Appointments, sitting in banc or in division, and in cases like those involving treason they must sit in banc. If according to section 4 of said Article VIII, "the Supreme Court shall be composed" of the Chief Justice and Associate Justices therein referred to, its jurisdiction can only be exercised by it as thus composed. To disqualify any of these constitutional component members of the Court particularly, as in the instant case, a majority of them is nothing short of pro tanto depriving the Court itself

of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. (Diehl vs. Crumb, 72 Okl., 108; 179 Pac., 44). And if that judge is the one designated by the constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It would seem evident that if the Congress could disqualify members of this Court to take part in the hearing and determination of certain collaboration cases it could extend the disqualification to other cases. The question is not one of degree or reasonableness. It affects the very heart of judicial independence. Willoughby's United States Constitutional Law, under the topic of separation of powers, Volume 3, pages 1622-1624, says: Upon the other hand, as we shall see, the courts have not hesitated to protect their own independence from legislative control, not simply be refusing to give effect to retroactive declaratory statutes, or to acts attempting the revision or reversal of judicial determination, but by refusing themselves to entertain jurisdiction in cases in which they have not been given the power to enforce their decrees by their own writs of execution. Thus, as already mentioned, they have refused to act where their decisions have been subject to legislative or administrative revisions. Finally, even where the extent of their jurisdiction, as to both parties litigant and subject-matter, has been subject to legislative control, the courts have not permitted themselves to be deprived of the power necessary for maintaining the dignity, the orderly course of their procedure, and the effectiveness of their writs. In order that the court may perform its judicial functions with dignity and effectiveness, it is necessary that it should possess certain powers. Among these is the right to issue certain writs, called extra-ordinary writs, such as mandamus, injunction, certiorari, prohibition, etc. and especially, to punish for contempt any disobedience to its orders. The possession of these powers the courts have jealously guarded, and in accordance with the constitutional doctrine of the separation and independence of the three departments of government, have held, and undoubtedly will continue to hold, invalid any attempt on the part of the legislature to deprive them by statute of any power the exercise of which they deem essential to the proper performance of their judicial functions. The extent of their jurisdiction, they argue, may be more or less within legislative control, but the possession of powers for the efficient exercise of that jurisdiction, whether statutory or constitutional, which they do possess, they cannot be deprived of. It has already been pointed out that the jurisdiction of the inferior Federal courts and the appellate jurisdiction of the Supreme Court are wholly within the control of Congress, depending as they do upon statutory grant. It has, however, been argued that while the extent of this jurisdiction is thus within the control of the legislature, that body may not control the manner in which the jurisdiction which is granted shall be exercised, at least to the extent of denying to the courts the authority to issue writs and take other judicial action necessary for the proper and effective execution of their functions. In other words, the argument is, that while jurisdiction is obtained by congressional grant, judicial power, when once a court is established and given a jurisdiction, at once attaches by direct force of the Constitution.

This position was especially argued by Senator Knox, Spooner and Culberson and contested by Senator Bailey during the debate upon the Repburn Railway Rate Bill of 1906. The point at issue was the constitutionality of the amendment offered by Senator Bailey providing that no rate or charge, regulation or practice, prescribed by the Interstate Commerce Commission, should be set aside or suspended by any preliminary or interlocutory decree or order of a circuit court. This position would seem to be well taken, and would apply to attempts upon the part of Congress to specify the classes of statutes whose constitutionality may be questioned by the courts, or to declare the number of justices of the Supreme Court who will be required to concur in order to render a judgment declaring the unconstitutionality of an act of Congress. In State vs. Morrill (16 Ark., 384), the Supreme Court of Arkansas declared: The legislature may regulate the exercise of, but cannot abridge, the express or necessarily implied powers granted to this court by the Constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government; and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the federal and state institutions, and a favorite theory in the government of the American people . ... The members affected by the prohibition have heretofore disqualified themselves, partly because they presumed the statute valid and partly because they would rather have no hand in the revision of the appeals, for the purpose of avoiding even a breath of suspicion as to the impartiality of their actuations. However, realizing upon a thorough analysis of the matter by counsel on both sides, the far-reaching implications which the precedent might authorize, imperilling the independence of one coordinate branch of the Government, they finally cast aside all reluctance to consider the point, and came out with practical unanimity to condemn any legislation which impinges or might impinge upon the fundamental independents powers of the judicature. Some of them have no quarrel with legislative authority to enumerate instances in which judges may not sit. They would even concede that. But, they say, let the rules be promulgated before the event happens or litigation arises. To promulgate them after, would enable the Congress in specific situations to order that Judge X shall not decide the controversy between Y and Z or that Justice M shall not sit in the appeal of P.S. and so on ad infinitum, and thus decisively influence the decision, for or against one party litigant. Such legislative power might thus be wielded to interfere with the functions of the judiciary, depriving Philippine citizens of their right of impartial awards from judges selected without any reference to the parties or interest to be affected. Unnecessary to prove or impute sinister motives behind the statutory disqualification. Enough that recognition of the power might give way to the operation of unworthy combinations or oppressive designs. Let it not be argued that the Court is the same, only the membership being different. Because Article VIII, sections 4 and 5, of the Constitution do not admit any composition of the Supreme Court other than the Chief Justice and Associate Justices therein mentioned appointed as therein provided. And the infringement is enhanced and aggravated where a majority of the members of the Court as in this case are replaced by judges of first instance. It is distinctly another Supreme Court in addition to this. And the constitution provides for only oneSupreme Court.

From all that has been said above it results that the ground for disqualification added by section 14 of Commonwealth Act No. 682 to those already existing at the time of the adoption of the Constitution and continued by it is not only arbitrary and irrational but positively violative of the organic law. (b) In the face of the constitutional requirement (Art. VIII, section 5) that the members of the Supreme Court should be appointed by the President with the consent of the Commission on Appointments, we are of the opinion that no person not so appointed may act as Justice of the Supreme Court and that the "designation" authorized in section 14 of the People's Court Act to be made by the President of any Judge of First Instance, Judge-at-large of First Instance or cadastral Judge can not possibly be a compliance with the provision requiring that appointment. An additional disqualifying circumstance of the "designee" is the lack of confirmation by or consent of the Commission on Appointments. Without intending the least reflection on the ability, learning, and integrity of any such "designee", we are merely construing and applying the fundamental law of the land. A Judge of First Instance, Judgeat-large of First Instance or Cadastral Judge, under section 149 of the Revised Administrative Code, need not be at least forty years of age, nor have more than ten years or more been a judge of a court of record or engaged in the practice of law in the Philippines (as required by section 6 of Article VIII of the Constitution), because under said section he need only have practiced law for a period of not less than five years or have held during a like period within the Philippines an office requiring a lawyer's diploma. So that it may happen that a "designee" under section 14 of the People's Court Act, sitting as a substitute Justice of the Supreme Court in particular collaboration cases, and participating therein in the deliberations and functions of the Supreme Court, like any regular Justice thereof, does not possess the required constitutional qualifications of a regular member of said Court. Here again is another point of repugnancy between the challenged section and the constitution. And if we consider the actual fact that only four of the present ten Justices of this Court are not adversely affected by the disqualification established in section 14 of the People's Court Act, we see that the "designees" constitute a majority when sitting with said four Justices, giving rise to the result that, if the composed by them all should be considered as the Supreme Court, it would be composed by four members appointed and confirmed pursuant to sections 4 and 5 of Article VIII of the Constitution and six who have not been so appointed and confirmed. The situation would not be helped any by saying that such composition of the Court is only temporary, for no temporary composition of the Supreme Court is authorized by the constitution. This tribunal, as established under the organic law, is one of the permanent institutions of the government. The clause "unless otherwise provided by law" found in said section 4 can not be construed to authorize any legislation which would alter the composition of the Supreme Court, as determined by the Constitution, for however brief a time as may be imagined. In principle, what really matters is not the length or shortness of the constitutional composition of the Court, but the very permanence an unalterability of that composition so long as the constitution which ordains it remains permanent and unaltered. We are furthermore of opinion that said clause refers to the number of Justices who were to compose the Court upon its initial organization under the Commonwealth, and the manner of its sitting; that is, that the Legislature, when providing for the initial organization of the Supreme Court under the Commonwealth, was authorized to fix a different number of Justices than eleven, and determine the manner of the Court's sitting differently from that established in section 4 of Article VIII of the Constitution, but it was and is not empowered to alter the qualifications of the Justices and the mode of their appointment, which are matters governed by sections 5 and 6 of said Article VIII wherein the clause "unless otherwise provided by law" does not ever exist, nor the provision on who shall be the component members of the Court. Such a legislation was enacted in the form of Commonwealth Acts Nos. 3 and 259, the pertinent provisions of which amended sections 133 and 134 of the Revised Administrative Code. But after liberation, the Chief Executive, by Executive Order No. 40 (41 Off. Gaz., 187) amended sections 133 and 134 of the Revised Administrative Code, as amended by section section 2 of Commonwealth Act No. 3 and

sections 1 and 2 of Commonwealth Act No. 259, and repealed all acts or parts of acts inconsistent with the provisions of said executive order; and the same Chief Executive, by Executive Order No. 86 (42 Off. Gaz., 15) further amended section 133 of the Revised Administrative Code, as thus previously amended, also repealing all acts or parts of acts inconsistent therewith. Both by virtue of Executive Order no. 40 and Executive Order No. 86, the number of Justices of the Supreme Court, as originally fixed at eleven by the Constitution, was restored. (c) However temporary or brief may be the action or participation of a judge designated under section 14 of the People's Court Act in a collaboration case of the class therein defined, there is no escaping the fact that he would be participating in the deliberations and acts of the Supreme Court, as the appellate tribunal in such a case, and if allowed to do so, his vote would count as much as that of any regular Justice of the Court. There can be no doubt that the Chief Justice and Associate Justices required by section 4 of Article VIII of the Constitution to compose the Supreme Court indeed, a "temporary member" thereof would be a misnomer, implying a position not contemplated by the constitution. Section 5 of the same Article VIII, in requiring the members of the Supreme Court to be appointed by the President with the consent of the Commission on Appointment, makes it plainly indubitable that the Chief Justice and Associate Justices who are to compose the Court and sit therein under section 4, have to be thus appointed and confirmed. As already adverted to, a mere designation under section 14 of the People's Court Act does not satisfy the Constitutional requirement of appointment, with the additional circumstance that as to such designation, the Commission on Appointments is entirely dispensed with. We find absolutely nothing in the context which may soundly be construed as authorizing, merely by legislation, any change in the constitutional composition of the Supreme Court, or the performance of its functions by any but its constitutional members. On the other hand, we have to go by the cardinal rule that "usually provisions of a constitution are mandatory rather than directory, and mandatory provisions are binding on all department of the government." (16 C.J.S., 120). The main reason for this rule is that in the Constitutions the sovereign itself speaks and is laying down rules which, for the time at least, are to control alike the government and the governed. It is an instrument of a solemn and permanent character, laying down fundamental maxims, and, ordinarily, is not supposed to concern itself with mere rules or order in unessential matters (Baker vs. Moorhead, 174 N.W., 430, 431; 103 Neb. m, 811); Court is loath to say that any language of the constitution is merely directory. Scopes vs. State, 289 S.W., 363, 366; 154 Tenn., 105; 53 A.L.R., 821). (Footnote 93, C.J.S., 120.) Under sections 4 and 5 of Article VIII of the Constitution, it is clear that the framers intended the Supreme Court to function through the members who are therein defined: and by section 6 they determined who may be appointed such members. This naturally excludes the intervention of any person or official who is not a member of the Court in the performance of its functions; and it is self-evident that the "designees" spoken of in section 14 of the People's Court Act can not be such members in view of the fact that they have not been appointed and confirmedas such pursuant to said sections 5 and 6. Hence, we do not see the way clear to the proposition that the "designees" in such a case can constitutionally "sit temporarily as Justices" of the Supreme Court.

By an act of the United States Congress dated February 6, 1905, it was provided in part as follows: Temporary judges of the Supreme Court; ... Whenever by reason of temporary disability of any judge of the Supreme Court or by reason of vacancies occurring therein, a quorum of the court shall not be present for business the Governor General of the Philippine Islands is authorized to designate a judge or judges of the court of First Instance in the islands to sit and act temporarily as judge or judges of the Supreme Court in order to constitute a quorum of said Supreme Court for business. . . . . As part of the membership of the Court believes that this provision is still in force by virtue of Article XVI, section 2, of the Constitution, and should still be applied to cases of "temporary disability ... or vacancies occurring" and preventing a quorum; while the other members are not prepared to subscribe to the same view, for the reason that the designation" thereby authorized would be "inconsistent with this constitution," in the word of the cited section, the same as the "designation" authorized by section 14 of the People's Court Act. Anyway, we need not decide the point now. This decision has been prepared before this date, and is being promulgated before the Court acts upon the Solicitor General's motion to dismiss dates February 17, 1948, for the rulings contained herein. For the foregoing consideration, it is declared and ordered: (a) that section 14 of the People's Court Act is unconstitutional in the respects specified in the body of this resolution; and (b) that this case be dealt with henceforward in pursuance of and in harmony with this resolution. So ordered. G.R. No. 87193 June 23, 1989 JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents. CRUZ, J.: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo

warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition forcertiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code. Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all

eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied. It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question. The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. OFFICE OF UNITED STATES NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOM IT MAY CONCERN: Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178. Petition No. 280225. THE DISTRICT CLERK COURT

Alien Registration No. A23 079 270. Very truly yours, WILLIAM L. WHITTAKER Clerk by: (Sgd.)

ARACELI V. BAREN Deputy Clerk This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of

the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein. That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special

Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. 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. It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love. WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected Vice-Governor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. SO ORDERED. G.R. No. 90799 October 18, 1990 AUGUSTO vs. COURT OF APPEALS, LANTING, respondents. L. CIVIL SERVICE COMMISSION, GASPAR, petitioner, and ZENAIDA F.

RESOLUTION NARVASA, J.: Augusto L. Gaspar seeks the setting aside of the Decision of the Civil Service Commission dated July 19, 1985 (affirmed by the Court of Appeals), which revoked his appointment as Administrative Officer II of the Parks Development Office, Manila, and directed the appointment of Zenaida F. Lanting as such, in his stead. Gaspar was the Chief of the Security Section of the Parks Development Office of the City of Manila when Executive Order No. 81-01 was issued by the Governor of the Metro Manila Commission on May 24, 1981. The Executive Order established a comprehensive position classification and pay plan for MMC officers and employees, and contained a provision reclassifying Gaspar's position of Chief, Security Section, to Administrative Officer II. On April 25, 1983, Gaspar was appointed to that position of Administrative Officer II, effective on October 1, 1982. Zenaida F. Lanting, then Senior Accounting Clerk in the same Parks Development Office, filed with the Merit Systems Board a protest against Gaspar's appointment as Administrative Officer II, contending that she was better qualified for, and should have been named to, the office. After due proceedings, the Merit Systems Board (MSB) revoked Gaspar's appointment and directed Lanting's appointment to the office of Administrative Officer II, in a decision rendered on November 28, 1984. Gaspar appealed to the Civil Service Commission (CSC) . After initially sustaining Gaspar (in Resolution No. 85-177, May 21, 1985), the CSC ultimately affirmed the judgment of the MSB by Resolution numbered 85-291 promulgated on July 19, 1985 and, as the MSB had done, directed "the appointment of ... Lanting to the position of Administrative Officer II in the Parks Development Office ..." The CSC said: A comprehensive evaluation of the qualifications of the parties would show that while both are at par in experience and training, Lanting has an edge over Gaspar in education. Her masteral degree in Public Administration as compared to 36 academic units in Business Administration course earned by Gaspar provide her with the required knowledge in management principles and techniques as well as substantial preparation to assume higher duties and responsibilities taking into account the supervisory nature of the position. It can therefore be concluded that Lanting is better qualified and more competent for appointment as Administrative Officer II. Such being the case, Lanting has better potentials to assume the duties and responsibilities of this contested position. There is no intimation whatever that Gaspar is not qualified for the position of Administrative Officer II. On the contrary, it seems quite evident that the Civil Service Commission considers both him and Lanting to possess the minimum qualifications for the office, but that, in the Commission's view, "Lanting has an edge over Gaspar in education" and "has better potentials to assume the duties and responsibilities of .. (the) contested position."

The same situation was presented to this Court in a case decided on August 5, 1986, Luego v. Civil Service Commission, and Felicula Tuozo. 1 It will therefore be in accordance with the doctrine therein that the appellate proceeding at bar will be resolved. In Luego, the appointment by the City Mayor of Cebu of Felimon Luego as Administrative Officer II, Administrative Division, Cebu City, was protested by Felicula Tuozo and another employee. The issue presented was Identical to that posed in the case at bar. It was, according to the Court, "starkly simple: Is the Civil Service Commission 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?" The Court ruled that under the circumstances, and in light of the relevant legal provisions, "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. No other criterion is permitted by law to be employed by the Commission when it acts on-or as the (Civil Service Decree says, 'approves' or 'disapproves' an appointment made by the proper authorities." 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; it has no authority to revoke the appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority. The doctrine has since been subsequently applied, in Central Bank of the Philippines, et al. v. Civil Service Commission, et al., G.R. Nos. 80455-56, April 10, 1989, and Maximo Gabriel v. Hon. Eufemio Domingo, et al., etc., G.R. No. 87420, September 17, 1990. 2 The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service. Given the demands of a certain job, who can do it best should be left to the Head of the office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard. In the case at bar, therefore, the respondent Commission acted beyond the scope of its authority and with grave abuse of discretion in revoking the petitioner's appointment and directing the appointment in his stead of the private respondent. WHEREFORE, Resolution No. 85-291 of the respondent Civil Service Commission, dated July 19, 1985, is SET ASIDE and the petitioner, Augusto L. Gaspar, is hereby declared to be entitled to the office of Administrative Officer II of the Parks Development Office of the City

of Manila by virtue of the appointment extended to him on April 25, 1983, effective on October 1, 1982. G.R. No. 124893 April 18, 1997 LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

qualification in her certificate of candidacy. The petition was sent by facsimile 8 and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila. On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en bancissued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. The order reads as follows: Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads: xxx xxx xxx

PUNO, J.: Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte. The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her application on the ground that petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824. On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan. 1 The Board of Election Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte. 2 The presiding judge of the Regional Trial Court, however, inhibited himself from acting on the appeal due to his close association with petitioner. 3 On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, 4 disapproved petitioner's certificate of candidacy again due to her age. 5 Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run. 6 On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be disapproved. 7 Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age 5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, copy of which is hereto attached and marked as Annex "A"; 6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course and that said candidacy must be cancelled; xxx xxx xxx the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of votes for the position of Sangguniang Kabataan [sic]. Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and legal research fees in the amount of P510.00. SO ORDERED. 9 On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76. 10 In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27, 1996. On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. 11 The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party." 12 On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon. 13

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK. I Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code. 14 The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy,viz: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election. In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself. 15 Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc. 16 It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the said Rules thus: Sec. 3. The Commission Sitting in Divisions. The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission. 17 In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996. 18 II

The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal requirements of pleadings under the COMELEC Rules of Procedure. These requirements are: Sec. 1. Filing of Pleadings. Every pleading, motion and other papers must be filed in ten (10) legible copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or protest as there are additional respondents or protestees. Sec. 2. How Filed. The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with. Sec. 3. Form of Pleadings, etc. (a) All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino. xxx xxx xxx Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of Court of the COMELEC personally, or, by registered mail. In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were filed with the COMELEC. 19 Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by registered mail. A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. 20 The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. 21 The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile. 22 Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. 23 Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELECen banc from acting on the petition and issuing the questioned order. The COMELEC en banc should have waited until it received the petition filed by registered mail.

III To write finis to the case at bar, we shall now resolve the issue of petitioner's age. The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age. 24 The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in issues of transcendental importance. 25 Its affairs were administered by a barangay youth chairman together with six barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age. 26 In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age." The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old. 27 The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan. 28 The chairman automatically becomes ex-officio member of the Sangguniang Barangay. 29 A member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office.30 Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code of 1991, viz: Sec. 424. Katipunan ng Kabataan. The katipunan ng kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary. A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the following qualifications: Sec. 428. Qualifications. An elective official of the sangguniang kabataan must be a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to election, at least fifteen (15) years but not more than twenty-one (21) years of age on the day of his election, able to read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral turpitude. Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1)

year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude. For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus: Sec. 3. Qualifications of a voter. To be qualified to register as a voter in the SK elections, a person must be: a) a citizen of the Philippines; b) fifteen (15) but not more than twenty-one (21) years of age on election day that is, he must have been born between May 6, 1975 and May 6, 1981, inclusive; and c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for at least six (6) months immediately preceding the elections. xxx xxx xxx Sec. 6. Qualifications of elective members. An elective official of the SK must be: a) a qualified voter; b) a resident in the barangay for at least one (1) year immediately prior to the elections; and c) able to read and write Filipino or any Philippine language or dialect or English. Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer (EO) whose decision shall be final. A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write.

Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner 's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections. A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "or the day of his election" is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio. 31 The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification. 32 The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution No. 2824. 33 Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election. The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each. 34 One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth the last day of the year. 35 In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day. The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on election day.

In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly stated as ". . . at least fifteen years of age or over but less than eighteen . . ." 36 This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the Local Government Code increased the age limit of members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matter open to confusion and doubt. 37 Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed power. 38 They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more than 21 years 39 and the only exception is in the second paragraph of Section 423 which reads: Sec. 423. Creation and Election. a) . . . ; b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he was elected. The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected. According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday." 40 Conversely, the SK official must not have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election. In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections. The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible. 41 In the

same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election. 42 The will of the people as expressed through the ballot cannot cure the vice of ineligibility. 43 The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected. 44 A defeated candidate cannot be deemed elected to the office. 45 Moreover, despite his claims, 46 private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate. 47 Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections. 48 Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, 49 is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months." The question of the age qualification is a question of eligibility. 50 Being "eligible" means being "legally qualified; capable of being legally chosen." 51 Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office. 52 Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman. To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office. IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term. SO ORDERED. G.R. No. L-24761 September 7, 1965

--------------------------G.R. No. L-24828 September 7, 1965 MELECIO MALABANAN, petitioners,

FELIPE N. AUREA and vs. COMMISSION ON ELECTIONS, respondent. Leon G. Maquera Ramon Barrios for respondents. RESOLUTION in his

own

behalf

as

petitioner.

PER CURIAM: Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R. No. L-24828, "Felipe N. Aurea and Melecio Malabanan vs. Commission on Elections," and it appearing: 1. That Republic Act No. 4421 requires "all candidates for national, provincial, city and municipal offices" to post a surety bond equivalent to the one-year salary or emoluments of the position to which he is a candidate, which bond shall be forfeited in favor of the national, provincial, city or municipal government concerned if the candidate, except when declared winner, fails to obtain at least 10% of the votes cast for the office to which he has filed his certificate of candidacy, there being not more than four (4) candidates for the same office;" 2. That, in compliance with said Republic Act No. 4421, the Commission on Elections had, on July 20, 1965, decided to require all candidates for President, Vice-President, Senator and Member of the House of Representatives to file a surety bond, by a bonding company of good reputation, acceptable to the Commission, in the sums of P60,000.00 and P40,000.00, for President and VicePresident, respectively, and P32,000.00 for Senator and Member of the House of Representatives; 3. That, in consequence of said Republic Act No. 4421 and the aforementioned action of the Commission on Elections, every candidate has to pay the premium charged by bonding companies, and, to offer thereto, either his own properties, worth, at least, the amount of the surety bond, or properties of the same worth, belonging to other persons willing to accommodate him, by way of counter-bond in favor of said bonding companies; 4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify from running for President, Vice-President, Senator or Member of the House of Representatives those persons who, although having the qualifications prescribed by the Constitution therefore, cannot file the surety bond

LEON G. MAQUERA, petitioner, vs. JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective capacities as Chairman and Members of the Commission on Elections, and the COMMISSION ON ELECTIONS,respondents.

aforementioned, owing to failure to pay the premium charged by the bonding company and/or lack of the property necessary for said counter-bond; 5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for provincial, city or municipal elective offices, persons who, although possessing the qualifications prescribed by law therefor, cannot pay said premium and/or do not have the property essential for the aforementioned counter-bond; 6. That said Republic Act No. 4421 has, accordingly, the effect of imposing property qualifications in order that a person could run for a public office and that the people could validly vote for him; 7. That said property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public office; and 8. That the bond required in Republic Act No. 4421 and the confiscation of said bond are not predicated upon the necessity of defraying certain expenses or of compensating services given in connection with elections, and is, therefore, arbitrary and oppressive. The Court RESOLVED, without prejudice to rendering an extended decision, to declare that said Republic Act No. 4421 is unconstitutional and hence null and void, and, hence, to enjoin respondents herein, as well as their representatives and agents, from enforcing and/or implementing said constitutional enactment. G.R. No. 137329 August 9, 2000 M.

provincial governor of Misamis Oriental, the provincial capitol being located therein; and (3) has registered as voter in the city during the period required by law, he could not be deemed "a stranger or newcomer" when he ran for and was overwhelmingly voted as city mayor. Election laws must be liberally construed to give effect to the popular mandate. The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to set aside the January 18, 1999 Resolution1 of the Commission on Elections (Comelec) en banc in SPA No. 98-298, which upheld the July 14, 1998 Resolution2 of the Comelec First Division. The assailed Resolutions ruled that Private Respondent Vicente Y. Emano possessed the minimum period of residence to be eligible to vote in Cagayan de Oro City, as well as be voted mayor thereof. The Facts The pertinent facts of the case, as culled from the records, are as follows. During the 1995 elections, Vicente Y. Emano ran for, was elected, and proclaimed provincial governor of Misamis Oriental. It was his third consecutive term as governor of the province. In his Certificate of Candidacy dated March 12, 1995, his residence was declared to be in Tagoloan, Misamis Oriental. On June 14, 1997, while still the governor of Misamis Oriental, Emano executed a Voter Registration Record in Cagayan de Oro City (geographically located in the Province of Misamis Oriental), a highly urbanized city, in which he claimed 20 years of residence. On March 25, 1998, he filed his Certificate of Candidacy for mayor of the city, stating therein that his residence for the preceding two years and five months was at 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City. Among those who ran for the mayorship of the city in 1998, along with Emano, was Erasmo B. Damasing, counsel of herein petitioners. On May 15, 1998, Petitioners Rogelio M. Torayno Sr., Generoso Q. Eligan and Jacqueline M. Serio, all residents of Cagayan de Oro City, filed a Petition before the Comelec, docketed as SPA No. 98-298, in which they sought the disqualification of Emano as mayoral candidate, on the ground that he had allegedly failed to meet the one-year residence requirement. Prior to the resolution of their Petition, the Comelec proclaimed private respondent as the duly elected city mayor. Thus, on May 29, 1998, petitioners filed another Petition before the Comelec, this time for quo warranto,3 in which they sought (1) the annulment of the election of private respondent; and (2) the proclamation of Erasmo B. Damasing, who had garnered the next highest number of votes, as the duly elected mayor of the city. In its Resolution dated July 14, 1998, the Comelec First Division denied the Petition for Disqualification. Upon petitioners' Motion for Reconsideration and Motion for Consolidation, the two cases were consolidated.4 Ruling of the Comelec As earlier stated, the Comelec en banc upheld the findings and conclusions of the First Division, holding that "[t]he records clearly show that the respondent is an actual resident of

ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE SERIO, petitioners, vs. COMMISSION ON ELECTIONS and VICENTE Y. EMANO, respondents. DECISION PANGANIBAN, J.:

The Constitution and the law requires residence as a qualification for seeking and holding elective public office, in order to give candidates the opportunity to be familiar with the needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare of their constituencies; likewise, it enables the electorate to evaluate the office seekers' qualifications and fitness for the job they aspire for. Inasmuch as Vicente Y. Emano has proven that he, together with his family, (1) had actually resided in a house he bought in 1973 in Cagayan de Oro City; (2) had actually held office there during his three terms as

Cagayan de Oro City for such a period of time necessary to qualify him to run for mayor therein. This fact is clearly established by the respondent having a house in the city which has been existing therein since 1973 and where his family has been living since then." Additionally, it ruled: "There is nothing in the law which bars an elected provincial official from residing and/or registering as a voter in a highly urbanized city whose residents are not given the right to vote for and be elected to a position in the province embracing such highly urbanized city as long as he has complied with the requirements prescribed by law in the case of a qualified voter. "Neither can the list of voters submitted as evidence for the petitioners showing that the respondent was a registered voter as of March 13, 1995 in Precinct No. 12, Barangay Poblacion, Tagoloan, Misamis Oriental bolster the petitioner's argument that the respondent is not a resident [or a] registered voter in Cagayan de Oro City since registration in said Precinct No. 12 does not preclude the respondent from registering anew in another place." Hence, this recourse5 before this Court.

Oro City for at least one (1) year for purposes of qualifying him to run for city mayor in the May 11, 1998 elections. 3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan de Oro City in the May 11, 1998 elections, who received the second highest number of votes, can be declared winner, considering that respondent Emano was disqualified to run for and hold said office and considering that his disqualification or ineligibility had been extensively brought to the attention and consciousness of the voters prior to the May 11, 1998 election as to attain notoriety, notwithstanding which they still voted for him." Petitioners are seeking the resolution of essentially two questions: (1) whether private respondent had duly established his residence in Cagayan de Oro City at least one year prior to the May 11, 1998 elections to qualify him to run for the mayorship thereof; and (2) if not, whether Erasmo Damasing, the candidate who had received the second highest number of votes, should be proclaimed mayor of the city. The Courts Ruling The Petition has no merit.

Issues Preliminary Matter: Locus Standi of Petitioners In their Memorandum, petitioners submit that the main issue is whether the "Comelec gravely abused its discretion amounting to lack of jurisdiction in issuing the questioned Resolutions." Allegedly, the resolution of this issue would depend on the following: 7 "1. Whether or not private respondent Emano's (a) remaining as governor of Misamis Oriental until he filed his certificate of candidacy for mayor of Cagayan de Oro City on March 25, 1998 in the May 11, 1998 election; (b) asserting under oath [that he was] qualified to act as governor of said province until said date; and (c) admitting, in sworn statements, [that he was] a resident of Misamis Oriental, precluded him from acquiring a bona fide domicile of choice for at least one (1) year in Cagayan de Oro City prior to the May 11, 1998 elections, as to disqualify him for being a candidate for city mayor of said City. 2. Differently stated, whether or not Emano's securing a residence certificate in Cagayan de Oro City, holding offices as governor of Misamis Oriental in the Capitol Building located in Cagayan de Oro City and having a house therein where [he had] stay[ed] during his tenure as governor, and registering as a voter in said City in June 1997, would be legally sufficient, as against the undisputed facts above enumerated, to constitute a change of his domicile of birth in Tagoloan, Misamis Oriental in favor of a new domicile of choice in Cagayan de
6

Although not raised by the parties, the legal standing of the petitioners was deliberated upon by the Court. We note that petitioners pray, among others, for judgment "declaring Atty. Erasmo B. Damasing as entitled to be proclaimed winner as mayor in the May 11, 1998 elections in Cagayan de Oro City."8 And yet, Damasing is not a party to the instant "Petition for Certiorari pursuant to Rule[s] 64 and 65" brought before us. Under the Rules of Court, a quo warranto may be brought only by (1) the solicitor general or (2) a public prosecutor or (3) a person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another.9 A reading of the Rules shows that petitioners, none of whom qualify under any of the above three categories, are without legal standing to bring this suit. However, the present Petition finds its root in two separate cases filed before the Comelec: (1) SPC 98-298 for disqualification and (2) EPC 98-62 for quo warranto. Under our election laws and the Comelec Rules of Procedure,any voter may file a petition to disqualify a candidate on grounds provided by law,10 or to contest the election of a city officer on the ground of ineligibility or disloyalty to the Republic.11 The petitioners herein, being "dulyregistered voters" of Cagayan de Oro City, therefore satisfy the requirement of said laws and rules.12 Main Issue: Residence Qualification for Candidacy Petitioners argue that private respondent maintains his domicile in Tagoloan, Misamis Oriental, not in Cagayan de Oro City, as allegedly shown by the following facts: (1) he had run and won as governor of the province of Misamis Oriental for three consecutive terms immediately preceding the 1998 elections; (2) in the pleadings he filed in connection with an election protest against him relating to the 1995 election, he had stated that he was a

resident of Tagoloan, Misamis Oriental; (3) he had fully exercised the powers and prerogatives of governor until he filed his Certificate of Candidacy for mayor on March 25, 1998. Petitioners claim that in discharging his duties as provincial governor, private respondent remained a resident of the province. They aver that residence is a continuing qualification that an elective official must possess throughout his term. Thus, private respondent could not have changed his residence to Cagayan de Oro City while he was still governor of Misamis Oriental. Petitioners further contend that the following were not sufficient to constitute a change of domicile: having a house in Cagayan de Oro City, residing therein while exercising one's office as governor (the city being the seat of government of the province), securing a residence certificate and registering as voter therein. Private respondent, on the other hand, alleges that he actually and physically resided in Cagayan de Oro City while serving as provincial governor for three consecutive terms, since the seat of the provincial government was located at the heart of that city. 13 He also avers that one's choice of domicile is a matter of intention, and it is the person concerned who would be in the best position to make a choice. In this case, Emano decided to adopt Cagayan de Oro City as his place of residence after the May 1995 elections. In fact, in January 1997, he secured his Community Tax Certificate at the City Treasurer's Office, stating therein that he was a resident of 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City. During the general registration of voters in June 1997, he registered in one of the precincts of Gusa, Cagayan de Oro City. This meant that, at the time, Emano had been a voter of the city for the minimum period required by law. No one has ever challenged this fact before any tribunal. Private respondent contends further that his transfer of legal residence did not ipso facto divest him of his position as provincial governor. First, there is no law that prevents an elected official from transferring residence while in office. Second, an elective official's transfer of residence does not prevent the performance of that official's duties, especially in private respondent's case in which the seat of government became his adopted place of residence.Third, as ruled in Frivaldo v. Comelec,14 the loss of any of the required qualifications for election merely renders the official's title or right to office open to challenge. In Emano's case, no one challenged his right to the Office of Provincial Governor when he transferred his residence to Cagayan de Oro City. Naturally, he continued to discharge his functions as such, until he filed his candidacy for mayor in March 1998. Lastly, Emano urges that the sanctity of the people's will, as expressed in the election result, must be respected. He is not, after all, a stranger to the city, much less to its voters. During his three terms as governor of Misamis Oriental, his life and actuations have been closely interwoven with the pulse and beat of Cagayan de Oro City. Public Respondent Comelec relies essentially on Romualdez-Marcos v. Comelec15 in its Memorandum16 which supports the assailed Resolutions, and which has been filed in view of the solicitor general's Manifestation and Motion in Lieu of Comment. 17 Thus, the poll body argues that "x x x the fact of residence x x x ought to be decisive in determining whether or not an individual has satisfied the Constitution's residency qualification requirement." Law on Qualifications of Local Elective Officials

The pertinent provision sought to be enforced is Section 39 of the Local Government Code (LGC) of 1991,18which provides for the qualifications of local elective officials, as follows: "SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect." Generally, in requiring candidates to have a minimum period of residence in the area in which they seek to be elected, the Constitution or the law intends to prevent the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from [seeking] an elective office to serve that community."19 Such provision is aimed at excluding outsiders "from taking advantage of favorable circumstances existing in that community for electoral gain." 20 Establishing residence in a community merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the needs of the community. This purpose is "best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice."21 Facts Showing Change of Residence In the recent en banc case Mamba-Perez v. Comelec,22 this Court ruled that private respondent therein, now Representative Rodolfo E. Aguinaldo of the Third District of Cagayan, had duly proven his change of residence from Gattaran, Cagayan (part of the First District) to Tuguegarao, Cagayan (part of the Third District in which he sought election as congressman). He proved it with the following facts: (1) in July 1990, he leased and lived in a residential apartment in Magallanes Street, Tuguegarao, Cagayan; (2) in July 1995, he leased another residential apartment in Kamias Street, Tanza, Tuguegarao, Cagayan; (3) the January 18, 1998 Certificate of Marriage between Aguinaldo and his second wife, Lerma Dumaguit; (4) the Certificate of Live Birth of his second daughter; and (5) various letters addressed to him and his family showed that he had been a resident of Tuguegarao for at least one year immediately preceding the May 1998 elections. The Court also stated that it was not "of much importance that in his [Aguinaldo's] certificates of candidacy for provincial governor in the elections of 1988, 1992, and 1995, private respondent stated that he was a resident of Gattaran."23 In the case at bar, the Comelec found that private respondent and his family had actually been residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had bought in 1973. Furthermore, during the three terms (1988-1998) that he was governor of Misamis Oriental, he physically lived in that city, where the seat of the provincial government was located. In June 1997, he also registered as voter of the same city. Based on our ruling in Mamba-Perez, these facts indubitably prove that Vicente Y. Emano was a resident of Cagayan de Oro City for a period of time sufficient to qualify him to run for public office therein. Moreover, the Comelec did not find any bad faith on the part of Emano in his choice of residence. Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city whose voters cannot participate in the provincial elections. Such political subdivisions and voting restrictions, however, are simply for the purpose of parity in representation. The classification of an area as a highly urbanized or independent component city, for that matter, does not completely isolate its residents, politics, commerce and other businesses

from the entire province -- and vice versa -- especially when the city is located at the very heart of the province itself, as in this case. Undeniably, Cagayan de Oro City was once an integral part of Misamis Oriental and remains a geographical part of the province. Not only is it at the center of the province; more important, it is itself the seat of the provincial government. As a consequence, the provincial officials who carry out their functions in the city cannot avoid residing therein; much less, getting acquainted with its concerns and interests. Vicente Y. Emano, having been the governor of Misamis Oriental for three terms and consequently residing in Cagayan de Oro City within that period, could not be said to be a stranger or newcomer to the city in the last year of his third term, when he decided to adopt it as his permanent place of residence. Significantly, the Court also declared in Mamba-Perez that "although private respondent declared in his certificates of candidacy prior to the May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third District not just for one (1) year prior to the May 11, 1998 elections but for more than seven (7) years since July 1990. His claim that he ha[s] been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao, which is the capital of the province of Cagayan." Similarly in the instant case, private respondent was actually and physically residing in Cagayan de Oro City while discharging his duties as governor of Misamis Oriental. He owned a house in the city and resided there together with his family. He even paid his 1998 community tax and registered as a voter therein. To all intents and purposes of the Constitution and the law, he is a resident of Cagayan de Oro City and eligible to run for mayor thereof. To petitioners' argument that Emano could not have continued to qualify as provincial governor if he was indeed a resident of Cagayan de Oro City, we respond that the issue before this Court is whether Emano's residence in the city qualifies him to run for and be elected as mayor, not whether he could have continued sitting as governor of the province. There was no challenge to his eligibility to continue running the province; hence, this Court cannot make any pronouncement on such issue. Considerations of due process prevent us from adjudging matters not properly brought to us. On the basis, however, of the facts proven before the Comelec, we hold that he has satisfied the residence qualification required by law for the mayorship of the city. We stress that the residence requirement is rooted in the desire that officials of districts or localities be acquainted not only with the metes and bounds of their constituencies but, more important, with the constituents themselves -- their needs, difficulties, aspirations, potentials for growth and development, and all matters vital to their common welfare. The requisite period would give candidates the opportunity to be familiar with their desired constituencies, and likewise for the electorate to evaluate the former's qualifications and fitness for the offices they seek. In other words, the actual, physical and personal presence of herein private respondent in Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to evaluate his qualifications for the mayorship. Petitioners' very legalistic, academic and technical approach to the residence requirement does not satisfy this simple, practical and common-sense rationale for the residence requirement.

Interpretation to Favor Popular Mandate There is no question that private respondent was the overwhelming choice of the people of Cagayan de Oro City.1wphi1He won by a margin of about 30,000 votes.24 Thus, we find it apt to reiterate the principle that the manifest will of the people as expressed through the ballot must be given fullest effect. In case of doubt, political laws must be interpreted to give life and spirit to the popular mandate.25 Verily, in Frivaldo v. Comelec,26 the Court held: "x x x [T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote." In the same vein, we stated in Alberto v. Comelec27 that "election cases involve public interest; thus, laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections." Indeed, "it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms."28 In sum, we hold that Respondent Comelec cannot be faulted with abuse, much less grave abuse, of discretion in upholding private respondent's election. Corollary Issue: Effect of Disqualification of Winner on Second Placer With the resolution of the first issue in the positive, it is obvious that the second one posited by petitioners has become academic and need not be ruled upon. WHEREFORE, the Petition is DISMISSED and the Resolutions AFFIRMED. Costs against petitioners. SO ORDERED. G.R. No. L-31683 January 31, 1983 ERNESTO M. DE GUZMAN, petitioner, vs. HON. ABELARDO SUBIDO, as Civil Service Commissioner, HON. NORBERTO AMORANTO, as Mayor of Quezon City, ET AL., respondents. GUTIERREZ, JR., J.: assailed Comelec

All persons appointed to positions covered by the civil service law are required by regulation to accomplish an information sheet on the prescribed form. The information sheet provides in summary outline the personal date, eligibilities, education, experiences, and other qualifications of the appointee. Included in the information sheet is a query on any criminal records of the applicant, which in later versions of the prescribed form asks if he has ever been arrested, indicted, or convicted of any crime or accused in any administrative proceeding. The issue in this petition for review is whether or not a person otherwise qualified but who admits having violated a city ordinance on jaywalking and another ordinance requiring a cochero to occupy only the seat intended for a cochero in a calesa is disqualified for appointment to the Quezon City Police Force. Petitioner Ernesto M. de Guzman was appointed patrolman in the Quezon City Police Department by Mayor Norberto S. Amoranto on August 16, 1965. He was a civil service eligible having taken and passed the civil service patrolman's examination given on November 24, 1962. He had also passed the usual character investigation conducted before appointment. As a newly appointed patrolman, the petitioner went through and successfully completed the police training course. On March 21, 1966, the petitioner's appointment was forwarded to the Commissioner of Civil Service. On August 18, 1966, or a year after the appointment and with no action on the appointment papers being taken by the respondent commissioner, the respondents city treasurer and city auditor stopped the payment of the petitioner's salaries. On May 12, 1967, the respondent commissioner returned the Petitioner's appointment papers, without action thereon, to the respondent mayor on the ground that Mr. de Guzman was disqualified for appointment under Republic Act No. 4864, the Police Act of 1966, which provides: (d) SEC. 9. General Qualifications of Appointment. No person shall be appointed to a local police agency unless he possesses the following qualifications: xxx xxx xxx (5) He must have no criminal record.'(SEC. 9 (5), Police Act of 1966) The above finding was based solely on the petitioner's own answer to question No. 15 in the information sheet: 15. Have you been accused, indicted, or tried for the violation of any law, ordinance, or regulation, before any court or tribunal? The answer given by the petitioner was: Yes. Jaywalking-paid fine P5.50; Municipal O.d. (Mla.) Sect. 1187 (cochero) paid fine of P5.00.

On September 7, 1967, the petitioner filed a petition for certiorari and mandamus with preliminary mandatory injunction with the Court of First Instance of Rizal, Branch V at Quezon city. On May 29, 1969, the lower court rendered a decision dismissing the petition. According to the court, the requirement of "no criminal record" means without any criminal record and makes no distinction whether an act violates a state law or only a municipal or city ordinance. The issue posed in this petition is presented by Mr. de Guzman, thus: Whether or not violations and/or convictions of municipal ordinances, one, for 'Jaywalking' and the other, Manila Municipal Ordinance No. 1187, prohibiting the cochero from 'occupying any part of the vehicle except the seat reserved for him', constitute 'CRIMINAL RECORD' to disqualify the petitioner under the Police Act of 1966 (Rep. Act No. 4864) from appointment to the Quezon City Police Force. We are constrained to grant the petition. The former Civil Service Act, Republic Act No. 2260, as amended, stated in its Section 23 that opportunity for government employment shag be open to all qualified citizens and positive efforts shall be exerted to attract the best qualified to enter the service. The same policy is reiterated in the Civil Service Decree, Presidential Decree No. 807, at Section 19, which superseded Republic Act No. 2260. The requirements for applicants to a policeman's position may be quite stringent but the basic policy of attracting the best qualified is not served by automatically excluding any person who in an absent minded mood or while hurrying to an urgent appointment may unwittingly have crossed a street or stepped down from the curb in violation of a jaywalking ordinance. The same thing is true of a person who may have worked his way through college as a cochero and, who, pitying his horse struggling up an incline or a bridge, leaves his seat to stand after and forward to balance the calesa load or who, alone on his way home, sits in the seat intended for passengers only to be fined for violating an obscure municipal ordinance. The petitioner cites decisions of American courts in support of his arguments: By weight of authority, the violation of a municipal ordinance, enacted by a city under legislative authority, as in the case of ordinances prohibiting and punishing gaming and the keeping of gaming houses, etc., is not a crime, in the proper sense of the term, for such ordinances are not public laws, and the punishment for their violation is imposed by the state.'(Withers v. State, 36 Ala. 252; City of Greely v. Hamman, 12 Cole., 94, 20 Pac. 1; Williams v. Augusta, 4 Ga. 509) as cited on p. 7, Francisco's Revised Penal Code, Book One, 3rd Edition. xxx xxx xxx

The common-law definition of a 'crime' as given by Blackstone, is 'an act committed or omitted in violation of a public law,' ... giving the accused the right to be heard in all 'criminal prosecutions' relates exclusively to prosecution for violation of public laws of the state, and a city ordinance is not a public law of the state, but a local law of the particular corporation, made for its internal practice and good government. (Castillo [should be Costelo] v. Feagin, 50 South 134, 135, 162 Ala. 191) There are other federal decisions which state that prosecutions to enforce penalties for violations of municipal ordinances are not criminal prosecutions and the offenses against these ordinances are not criminal cases. (City of Mobile v. McCown, Oil Co., 148 So. 402, 405; City of Mankato v. Arnold, 30 N.W. 305, 306; Village of Litchville v. Hanson, 124 N.W. 1119, 1120). We do not go so far as to sustain the arguments that only violations of statutes enacted by the national legislature can give rise to "crimes" or "a criminal record" as these terms are used in our law on local governments or the law of public officers. However, we take cognizance of the distinction in the law of municipal corporations which distinguishes between acts not essentially criminal relating to municipal regulations for the promotion of peace, good order, health, safety, and comfort of residents and acts in, intrinsically punishable as public offenses. (See cases cited in Dillon, A Treatise On The Law of Municipal Corporations, Vol. II, 5th Edition, Sections 745, 746, and 749.) A penalty imposed for the breach of a municipal regulation is not necessarily an exercise of the sovereign authority, to define crimes and provide for their punishment, delegated to a local government. In many cases, the penalty is merely intended not to render the ordinance inoperative or useless. The phrase "criminal record" governing qualifications for appointments could not have been intended by the legislature to automatically cover every violation of a municipal or city ordinance carrying a sanction of a nominal fine to enforce it. A violation of a municipal ordinance to qualify as a "crime" must involve at least a certain degree of evil doing, immoral conduct, corruption, malice, or want of principles reasonably related to the requirements of the public office. Automatic and perpetual disqualification of a person who in one unguarded moment threw a cigarette butt on the street, spat in public, deposited house garbage in a market receptacle for garbage, exceeded the speed limit for vehicles. blew his car horn near a school or hospital, or, as in this case, jaywalked, and who has paid the fine imposed by ordinance as commensurate deterrence for the act, would be unreasonable, if not oppressive. Respondent Subido should have gone deeper into the nature of the petitioner's acts instead of taking every "Yes" answer in Question 15 of the information sheet as an automatic disqualification. Under Rule VI of the Civil Service Rules and Regulations, the respondent commissioner had 180 days from receipt of the appointment papers to act on them. Inaction means the appointment is approved as properly made. The papers were returned more than a year by the commissioner after he received them.1wph1.t The appointment, not having any defect of record except the matter in issue in this case, must be deemed complete and properly made after the 180 days period. The termination of the petitioner's services was, therefore, an illegal and invalid removal. The petitioner should be reinstated, assuming he meets the physical and other requirements of the Integrated National Police under the new legislation and procedures governing police forces. In addition to being paid

any salaries for services actually rendered but not paid, the petitioner, following the formula in cases of illegal dismissals is entitled to five years backpay (Cristobal v. Melchor, 78 SCRA 175,187). WHEREFORE, the decision of the court a quo is set aside. The Integrated National Police and the respondent officials are directed to reinstate the petitioner to the Quezon City Police Force provided he meets the age, physical, and other qualifications and eligibilities for patrolman under present legislation and rules. The city government of Quezon City and the incumbent Mayor, Treasurer, and Auditor of the city are ordered to pay the petitioner any unpaid services and allowances for services actually rendered and five years backpay from the date his services were actually terminates. SO ORDERED. G.R. No. 120099 July 24, 1996 EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents. FRANCISCO, J.:p Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. (Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed duly-elected governor. Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 92-28). 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), so argued Marquez. The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise denied a reconsideration thereof. Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez, is a "fugitive from justice" as contemplated by Section 40 (e) of the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned). In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"' promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as theMARQUEZ Decision, declared that:

. . . , "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. This definition truly finds support from jurisprudence (. . .), and it may be so conceded as expressing the general and ordinary connotation of the term. 1 Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on Immigration showing that Rodriguez left the US on June 25, 1985 roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ Decision. 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." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when Rodriguez' petition forcertiorari (112889) from where the April 18, 1995 MARQUEZ Decision sprung was still then pending before the Court. On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that: 1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases 2. the parties, facts and issue involved are identical in both cases 3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from justice" 4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the two (2) cases is not procedurally flawed. Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind theMARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary evidence consisting of 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against Rodriguez, and 2. an authenticated copy of the felony complaint

which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis: The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed, respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any attached document to show when he left the United States and when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent. 2 And proceeding therefrom, the COMELEC, in the dispositive portion, declared: WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby 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 is hereby set aside. At any rate, Rodriguez again emerge as the victorious candidate in the May 8, 1995 election for the position of governor. 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. The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition forcertiorari (G.R. No. 120099) on May 16, 1995. On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation of Rodriguez, To Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089).

Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R. No. 120099). Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively). As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995. Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary Restraining Order Or Preliminary Injunction" which sought to retain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon . . . ." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion to Lift Temporary Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied. In a Resolution dated October 24, 1995, the Court . . . RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof. The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985). But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly

the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's observations in full: . . . The main opinion's definition of a "fugitive from justice" "include not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution." It proceeded to state that: This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus 275 Pacific Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. But in the majority of the cases cited, the definition of the term "fugitive from justice" contemplates other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a "fugitive from justice" as: (A) person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district. . . . Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from justice" as: . . . a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. (our emphasis) In Hughes v. Pflanz, the term was defined as: a person who, having committed within a state a crime, when sought for, to be subjected to criminal process, is found within the territory of another state. Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an: expression which refers to one having committed, or being accused, of a crime in one jurisdiction and is absent for any reason from that jurisdiction. Specifically, one who flees to avoid punishment . . . (emphasis ours)

From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person committed a "crime" or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode. Filing of charges prior to flight is not always an antecedent requirement to label one a "fugitive from justice". Mere commission of a "crime" without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word "crime" which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person "was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice." Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly(116 US 80) the United States Supreme Court held: . . . it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction (emphasis supplied) Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable language: The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice. THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE". From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the definition of a "fugitive from justice". Considering, therefore, the equally valid yet different interpretations resulting from the Supreme

Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law. The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice": . . . includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution. The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. 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 dated April 27 3 and June 26 of 1995, 4 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 the 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 MARQUEZDecision definition, is just nowhere to be found in the circumstances of Rodriguez. With that, the Court gives due credit to the COMELEC in having made the same analysis in its ". . . COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit: It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-publicized announcement to the perpetrators of the imminent filing of charges against them. And having been forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal consequence at all, it will be nothing

more than proof that even private respondent accepts that intent to evade the law is a material element in the definition of a fugitive. The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in the Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns first against the Marcos government, then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office. Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. Not justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him.

Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts? It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged "fugitive from justice" must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. The require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very functions of his office. However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-define "fugitive from justice". They espouse the broader concept of the term and culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded redefinition of"fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various definitions of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit: "Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on a general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330) It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267) In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has

proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. As a general rule a decision on a prior appeal of the same case is held to be the law of the casewhether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87). To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision. To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local petition 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. (Emphasis ours.) 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. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post. WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board and Canvassers to explain why they should not be cited in contempt) are SET ASIDE. SO ORDERED. G.R. No. L-11985 January 28, 1961

MARIANO CONDE, plaintiff-appellant, vs. THE NATIONAL TOBACCO CORPORATION and THE BOARD, OF LIQUIDATORS, defendants-appellees. DIZON, J.: Appeal by Mariano Conde from the decision of the Court of First Instance of Manila dismissing the complaint filed by him against the National Tobacco Corporation and the Board of Liquidators, without costs. It appears that on September 6, 1940 appellant was appointed Secretary-Treasurer of the National Tobacco Corporation with an annual compensation of P4,800 effective as of October 15, 1940. On August 22, 1941 he was appointed Secretary and Administrative Officer of the same company with the same annual compensation. On October 23, 1945 he was appointed Acting Secretary and Administrative Officer of the company with an annual compensation of P5,100.00. On March 18, 1946 he was appointed Acting Secretary and Administrative Officer with an increased annual compensation of P6,000.00. On September 16 of the same year he was appointed Treasurer and Chief, Credit Department, with the same annual compensation of P6,000.00. The appointment extended indicated that it was a mere "change of designation". On November 18, 1946 he was appointed Treasurer and Credit Manager with an increased annual compensation of P7,200.00 effective as of November 1st of said year. Finally, on December 21, 1948 he was appointed Treasurer with a reduced annual compensation of P6,000.00 effective as of December 16, of said year. This was in pursuance of Resolution No. 265 passed by the Board of Directors of the company on December 6, 1948, which stated, inter alia, that the reduction of the salary of appellant was for the purpose of making uniform the annual compensation of the Department Chiefs of the company. In this connection the resolution also renewed appellant of his duties as Secretary of the Board of Directors and Administrative Officer, presumably in order that his work as department chief would not be much more than that of other department chiefs. Several petitions for reconsideration filed by appellant in connection with the reduction of his annual compensation were denied by the Board of Directors. By executive order No. 372, the National Tobacco Corporation was dissolved and a Board of Liquidators was created for the purpose of settling and closing its affairs within a period of three years. Appellant also sought twice from the Board of Liquidators a reconsideration of the Board resolution reducing his annual compensation, but his petitions were denied. As a result, after his retirement from the service of the National Tobacco Corporation on January 31, 1952, he commenced the present action to recover from the latter and/or the Board of Liquidators, jointly and severally, the sum of P5,283.33, with legal interest thereon from the filing of the complaint, plus the sum of P1,750.00 for attorney's fees, and the cost of the suit. The first amount represented alleged salaries and gratuity differentials which he failed to receive by reason of the fact that the computations made for the payment of his salaries and gratuity were based on his reduced compensation of P6,000.00 per annum. The question raised by appellant in this instance may be summarized as follows: firstly, that the document Exhibit B constituted an appointment and not a mere notice of the reduction of his salary, and that, therefore, it was not valid without the approval of the Chief Executive; secondly, that the approval of the Operation Budget of the company for the first year July 1, 1948, to June 30, 1949 by the Control Committee of the Government Enterprises Council did not amount to presidential approval of Exhibit B; and lastly, that the court should have judgment in his favor by reason of the prevailing governmental practice of not applying any

reduction of salary for any particular position to the incumbent, and on the further ground that the Board of Directors of the National Tobacco Corporation had discriminated against appellant. Appellant concedes the authority of this former employee to reduce his salary or compensation, but argues that the document Exhibit B appointing him as Treasurer was never approved by the President of the Philippines and, for this reason never became legally effective. This contention is untenable. It is true that the approval of the President was necessary in the case of appointments to Positions in the National Tobacco Corporation involving a salary of P3,000.00 or more annually. It is likewise a fact that the appointments extended to appellant mentioned heretofore were submitted to and approved by the President of the Philippine, through the Chief of the Executive Officer with the exception of the last which appointed him as Treasurer only and reduced his annual compensation from P7,200.00 to P6,000.00. The rule referred to, however, would apply to appellant's case only if the document marked Exhibit B constituted in fact and in law, a real appointment and not a mere notice advising him of the reduction of his annual salary and of his duties as employee of the company. After a careful consideration of the circumstances that led to the issuance thereof, we are inclined to believe that the document was in the nature of a mere notice and, therefore, needed no presidential approval. It must be observed that the preceding appointments were as Secretary-Treasurer (Exhibit C); as Secretary and Administrative Officer (Exhibit D); as Acting Secretary and Administrative Officer (Exhibit E); as Acting Secretary and Administrative Officer (Exhibit F); as Treasurer and Chief, Credit Department (Exhibit G); and as Treasurer and Credit Manager (Exhibits A, A-1), while the one in question was as Treasurer exclusively. Appellant, therefore, was not given a new job; the so-called "appointment" merely reduced his duties and, as a consequence, made a corresponding reduction states that the change was made in pursuance of Resolution No. 265 which was adopted for the purpose of standardizing the salaries of chiefs of departments, for which reason, "the compensation of the treasurer be (was) reverted to six thousand (P6,000.00) pesos per annum effective December 16, 1948" (Exhibit 6). It is clear therefore, that exhibits 6 and B, in effect, merely took away from appellant his additional duties as credit manager, and in view of his reduced duties and to accomplish standardization of salaries, his compensation WAS REVERTED to P6,000.00 per annum. Moreover, the reduction of appellant's duties was not at all arbitrary. It was motivated principally by the fact that there had been created in the corporation a separate position with an annual compensation of P6,000.00, entrusted with the discharge of the duties of which appellant was relieved. From a technical point of view, there would seem to be less reason to uphold appellant's contention. The term" appointment" is in law equivalent to "filling a vacancy" (6 C.J.S. 89). In this case it seems obvious to us that appellant never vacated the position of Treasurer; he did not have to vacate it in order to accept the position to which he was "appointed" on December 21, 1948 (Exhibit B). In point of fact, therefore, the position of Treasurer was not vacated by him by reason of his alleged appointment as Treasurer only. The fact that the appointments extended in favor of appellant prior to the one in question were submitted to and actually approved by the Office of the President of the Philippines is explained by the fact that the appointment of September 6, 1940 was his original appointment as Secretary-Treasurer and the subsequent ones involved increases in salary or additional duties imposed upon the appointee. Their submission to the Office of the

President was in pursuance of a policy in relation to appointments in government controlled corporations involving additional expenditure and disbursement or appropriation of funds. There is no showing in the record that the same policy applied to a case of reduction of salary. But even granting that the so-called appointment required presidential approval, it may be cleaned from the record that there had been substantial compliance with this requirement. The reduction of appellant's salary, after its approval by the General Manager and the Board of Directors of the National Tobacco Corporation was carried in the Operation Budget of the corporation for the fiscal year July 1, 1948 to June 30, 1949. This Operation Budget was submitted to and approved by the Control Committee of the Government Enterprises Council, through its Chairman. This affirmative action was taken by authority of the President of the Philippines (Exhibit 8-A). It must be stated in this connection that by Executive Order No. 93 (Exhibit 15) the Government Enterprises Council and particularly the Control Committee thereof is the representative of the President in the supervision of all government-owned and controlled corporations. The act of said body, therefore, should be deemed to be an act done on behalf of the President of the Philippines himself. This must be binding upon appellant for the reason that all his appointments prior to the one in question which lie deems valid and regular were not approved by the President of the Philippines personally but by the Executive Secretary acting "by authority of the President". (Exhibits 1 to 5) With what has been stated heretofore we deem fully resolved the main questions involved in this appeal and, finding the appealed decision to be in accordance with law, the same is hereby affirmed, with costs. G.R. No. 92103 November 8, 1990 VIOLETA T. TEOLOGO, petitioner, vs. THE CIVIL SERVICE COMMISSION, DR. PRUDENCIO J. ORTIZ, DR. JOSE M. TUPAZ, JR., and MRS. RUBY G. GELVEZON, respondents. CRUZ, J.: The petitioner questions the appointment of private respondent Ruby G. Gelvezon as Chief Nurse I of the Representative Pedro Trono Memorial Hospital in Guimbal, Iloilo, as approved by the Civil Service Commission in its Resolution No. 89-321 dated May 5,1989. She claims she has a preferential right to be appointed to the said position, which she had held in an acting capacity for more than a year. She stresses that she is next-in-rank and not disqualified; Gelvezon, on the other hand, is not eligible. At the time of the challenged appointment, Gelvezon was no longer in the service, having retired as Senior Nurse of the said hospital on October 26,1986, subsequently collecting the gratuity, terminal leave and other benefits due her. She was therefore being reinstated under CSC Memorandum-Circular No. 5, s-1983, which allows the reinstatement of a retiree only under certain conditions. The required request of the Regional Health Office No. 6 for authority to reinstate her was denied by Civil Service Regional Office No. 6 (CSRO No. 6) on the ground that the vacancy could be filled by promotion of qualified personnel, "attention being invited to the attached copy of the letter protest dated September 15,1988 of Ms. Violeta Teologo," one of two other aspirants for the same position. This denial was appealed

to the Civil Service Commission by Dr. Prudencio J. Ortiz, Regional Health Director, who justified the appointment of Gelvezon on grounds of the "exigency of the service" and her superior qualifications compared to those of the other applicants. In the assailed resolution, the CSC set aside the denial of CSRO No. 6 and directed it "to take appropriate action on the appointment of Mrs. Ruby G. Gelvezon, subject to Civil Service Laws and Rules." It declared inter alia that "in the case of Mrs. Gelvezon, who is neither a retiree nor overage (57 or over), the head is not required to secure prior authority." The petitioner filed a motion for reconsideration insisting that the appointment of Gelvezon was violative of law and the pertinent administrative regulations, particularly CSC Memorandum Circular No. 5, s-1982. CSRO No. 6 also reminded the CSC that "grant of authority is a condition precedent before Mrs. Gelvezon can be reinstated in the service, considering that she retired therefrom as may be duly supported" by her application for retirement dated May 23, 1988 and its approval effective October 26, 1988. These representations were denied by the CSC in its Resolution No. 90-307, dated January 11, 1990, the dispositive portion of which read: WHEREFORE, the foregoing premises considered, the Commission resolved to deny, as it hereby denies, the instant motion for reconsideration. The earlier decision of this Commission as embodied in CSC Resolution No. 89-321 dated May 5, 1989 is therefore affirmed. However, Mrs. Ruby G. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director of Region VI, Iloilo City are hereby admonished to be more prudent and circumspect in making representations, otherwise, a repetition of a similar act in the future will be dealt with administratively. The petitioner then came to this Court, claiming that the respondent CSC had committed grave abuse of discretion in sustaining the reinstatement of private respondent Gelvezon. Required to comment, the Solicitor General begins with an assertion of his right and duty "to present to the Court the position that will legally uphold the best interest of the Government although it may run counter to a client's position" and his "specific mandate to act and represent the Republic and/or the people before any court, tribunal, body or commission in any matter, action or proceeding which, in his opinion, affects the welfare of the people as the ends of justice may require." He then declares that he cannot agree with the respondent CSC and proceeds to explain why he thinks it is in error. In the recent case of Orbos v. Civil Service Commission 1 we sustained the authority invoked here by the Solicitor General. To be fair, however, we have made it clear that whenever he disagrees with the office he is supposed to represent, as in the case at bar, we shall allow such office to file its own comment in support of its position. Such comment has been submitted by public respondent CSC. It is the contention of the Solicitor General that the abovementioned resolutions of the CSC should be reversed as contrary to law and regulations. His view is that the CSC cannot direct the appointment of Gelvezon as this would be an encroachment on the prerogative of another department, besides the fact that there is no justification for her appointment in view

of her ineligibility and the availability of other candidates. He notes especially her disqualification for the office for having misrepresented that she had merely resigned (and so needed no special authority to return) when the truth was that she had retired. It is true, as he maintains, that the CSC cannot usurp the appointing power from the appropriate authority and substitute its choice with another on the ground that the latter is better qualified. The discretion to determine this matter belongs to the appointing authority and not respondent CSC. The only function of the CSC in this regard is to ascertain whether the appointee possesses the prescribed qualifications and, if so, to attest to such fact. The only ground upon which the appointment may be disallowed is that the appointee is not qualified, not that he is in its opinion less qualified than others. The presumption is that the appointing authority is the best judge of this matter. As we said in Luego v. Civil Service Commission: 2 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. The CSC denies that it has usurped the appointing power of another department and stresses that all it did was direct CSRO No. 6 to act on the appointment made by the Health authorities. It was not making the appointment itself or ordering it to be made but merely sustaining it under the applicable civil service rules and regulations. Finding that Gelvezon possessed the prescribed qualifications and satisfied the requirements of CSC Memorandum-Circular No. 5, s-1983, it had merely approved her reinstatement as proposed by the Regional Health Director. It is not clear from the records who has appointed Gelvezon as Chief Nurse I. Dr. Jose M. Tupaz, Jr., Director of the Hospital, merely recommended her reinstatement to Dr. Prudencio M. Ortiz as Regional Health Director, who in turn requested from CSRO No. 6 authority to reinstate her. The reinstatement was presumably to be done by him. Under the law, it is the President of the Philippines or his alter ego, the Secretary of Health, who can make appointments of key personnel in the Department of Health. Yet, in the case at bar, Dr. Ortiz was asking for authority to reinstate Gelvezon as if he himself had the power to do this. It seems to us that Dr. Ortiz's request should at the very least have been coursed through or cleared by the Secretary of Health before being submitted to CSRO No. 6 with his approval. The reinstatement of Gelvezon would require a new appointment and it has not been shown that the Regional Health Director has the power to make such appointment. The presumption of regularity of official functions is not applicable because the power in question clearly belongs not to Dr. Ortiz but his superiors. But even assuming that the Regional Health Director was duly empowered to make the appointment, there were still special conditions that had to be fulfilled under MemorandumCircular No. 5, s-1983, which, significantly, was promulgated by the Civil Service Commission itself. It must be remembered that we deal here not with the appointment of a newcomer to the public service. Gelvezon is a retiree. Additional requirements are

prescribed for her appointment because it involves the reinstatement of a person who, after having left the government, has a change of heart and wishes to return. These requirements are embodied in CSC Memorandum-Circular No. 5, s-1983, reading in full as follows: MEMORANDUM CIRCULAR TO: ALL HEADS OF MINISTRIES, BUREAUS, AND AGENCIES OF THE NATIONAL AND LOCAL GOVERNMENTS, INCLUDING GOVERNMENTOWNED AND CONTROLLED CORPORATIONS. SUBJECT: Guidelines on Appointment of Persons who have Reached the age of 57 Years. Reinstatement of persons who have been Previously Retired from the Service, and Retention in the Service of Persons who have Reached the Compulsory Retirement Age of 65 Years Pursuant to Presidential Decree No. 830 dated November 27, 1975 as implemented by Letter of implementation No. 47 dated August 18, 1976, the Civil Service Commission is empowered to reinstate in the service persons who have been previously retired from the service, and to extend the services of persons who have reached the compulsory retirement age of 65 years, except Presidential appointees. To insure effective and facilitate action on requests of such nature, the following guidelines are prescribed: 1. All requests shall be made by the appointing authority concerned and directly addressed to the respective Civil Service Regional Office. CSC Regional Offices have been given authority to act on such requests. 2. Requests for authority for such appointment, reinstatement or retention shall meet the following conditions as certified by the appointing authority. a. the exigencies of the service so require; b. the officer or employee concerned possesses special qualification not possessed by other officers or employees in the agency where he is to be appointed or retained; and c. the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned, or by transfer of qualified officers or employees from other government agencies, or there are no eligibles in the appropriate register of

the Commission available for certification to the vacancy. 3. No person shall be reinstated if he has been separated from the service through delinquency or misconduct on his part or if he has been separated under LOI Nos. 11, 14, 14-A, and 14-B unless he has been granted executive clemency by the President. 4. Each request must be accompanied by a medical certificate issued by a government physician certified that the person is still physically and mentally healthy to be appointed in the service. 5. Officers or employees who have been recommended for appointment, reinstatement, or retention in the service shall not be allowed to assumed or continue in office pending receipt of authority from the Civil Service Regional Office concerned. Henceforth, all requests relating to the above matters should make reference to this Memorandum Circular. This Memorandum Circular shall take effect immediately. (SGD.) Chairman ALBINA MANALO-DANS

August 1, 1983 (Emphasis supplied). The Solicitor General maintains that the appointment of Gelvezon, assuming it has been made by the appropriate authority, nevertheless does not meet the three conditions mentioned in Paragraph 2 of the memorandum-circular. Neither is the authorization to reinstate required in Paragraph 5 sustainable under the proven facts. Like the assessment of the appointee's qualifications, the determination of whether the appointment is demanded by the exigencies of the service should be made by the appointing authorities themselves, at least in the first instance. As it is they who can best understand the needs and operations of their own offices, their findings on this matter are entitled to great respect even from this Court. We note, however, that in meeting the requirement of Paragraph 2(a), Dr. Tupas, as Director of the RPTMH merely said in his recommendation. 3 1. That the exigency of the service demands that the position should be filled. Problems in the Nursing Service have cropped up, wanting of the attendance of a nursing administrator which may assume, unmanageable magnitude if left unsolved. This same recommendation was reiterated verbatim by Dr. Ortiz in his own letter to CSRO No. 6 requesting authority to reinstate Gelvezon . 4

Its tortuous construction aside, the above-quoted statement actually says nothing. It is no more than so many cliches stringed together to satisfy the requirement, without any earnest effort to specify the problems facing the Nursing Service and why they "may assume unmanageable magnitude if left unsolved" because of the non-appointment of the recommendee. The "exigency of the service" is not explained nor is it shown why it "demands" the filling of the position. The necessity for Gelvezon sounds exaggerated. The generalization seeks more to impress than to inform and persuade. If a meaningless justification like this could suffice, the requirement might as well be discarded altogether as a useless formality. Regarding subsection (b), the respondents stress that in the examination given by the Selection, Placement and Promotion Board of the RPTMH, Gelvezon placed first with a rating of 88.25%, followed by Medalla P. Balandra with 87.5% and Violeta T. Teologo with 83.25%. This was probably the main reason for the conclusion that Gelvezon was the best candidate among the three and for the following encomium from Dr. Ortiz (again echoing Dr. Tupaz word for word): 2. Mrs. Ruby G. Gelvezon brings along with her the degree of competence, respectability and dedication to service, qualities very desirable among people in the Civil Service, especially in the Department of Health. These qualities are found wanting in the other applicants. 5 It is not explained why applicants Balandra and Teologo are "wanting" in the qualities of "competence, respectability and dedication to service" that seem to be the exclusive virtues of the private respondent. The statement is itself wanting for not stating what other special qualifications Gelvezon possessed, besides topping the examination, that were not possessed by the other candidates. The qualifications of these aspirants were not discussed at all and were probably simply dismissed as irrelevant. But they are not, of course, for the requirement is that the appointee must possess special qualifications "not possessed" by the other candidates. As we see it, the recommendation is at best an unfair commentary on Balandra and Teologo, at worst an undeserved disparagement of their credentials. These are not so far behind those of Gelvezon, especially in the case of Balandra, or even of Teologo, who had served as acting Chief Nurse and holds the degree of Bachelor of Science in Nursing. Gelvezon finished only the Graduate Nurse course. The discretion given the appointing authority is subject to stricter review where the person appointed is being returned to the government after voluntarily retiring and collecting all the benefits appurtenant to such retirement. The earlier approval of Gelvezon's retirement signifies that her services as Senior Nurse were dispensable in 1986. Suddenly she is needed again. It must take more than the usual explanation to justify her reinstatement now on the ground that her services are after all indispensable. A retiree cannot just resume where he left off without the special qualifications (not possessed by the other candidates) required in Paragraph 2(b). Even assuming that Gelvezon does have these qualifications, her appointment is still not defensible under Paragraph 2(c) because there are other candidates for the office who are eligible and available. The rule expressly allows reinstatement only "if the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned." It is true that the next-in-rank rule admits of exceptions, as we have ruled in many cases. 6 But deviation

from that rule requires special justification in the case at bar because a retiree should ordinarily not be allowed to pre-empt incumbent aspirants. The treatment of Paragraph 5 is still another matter that is not easy to understand. Contrary to the original findings of the respondent CSC, there was a need for authority to reinstate Gelvezon because she had retired from the public service four years ago. The reason for the original erroneous finding was her suppression of that material fact. Confronted later with the record, she could not deny that she had indeed not merely resigned but retired. The CSC then retracted its earlier statement and conceded that as a retiree Gelvezon was directly covered by the memorandum-circular. Nevertheless, by some queer logic, it blandly declared in its Resolution No. 90-037: ... Moreover, the Commission, in said Resolution, directed CSRO No. 6 to act on the appointment of Mrs. Gelvezon for the reason that the Commission found that said Mrs. Gelvezon merely resigned from her position and thus, CSC MC No. 5, series of 1983 does not apply to her case. By this action of the Commission, whatever defect there may be in the questioned appointment of Mrs. Gelvezon to the contested position is thus validated or rectified. The Court feels that in giving such authority, the CSC was unduly forebearing. Even if Paragraph 2 were disregarded, Gelvezon would still not qualify for the position because she had falsified her application and concealed the fact that she was a retiree. It is plain that she was less than honest. As the CSC itself later declared: A keen restudy of the case reveals that Mrs. Gelvezon actually filed an Application for Retirement under RA 1616 on May 23, 1986 effective October 26, 1986, as shown by the said document and her signature in it. More importantly, in a letter dated July 12,1988 to the Secretary of the Department of Health (DOH), the Manager of the Government Service Insurance System (GSIS), Iloilo Branch, Iloilo City, approved the said application for retirement of Mrs. Gelvezon effective October 26, 1986, which approval was docketed as Retirement Gratuity No. ILORG 003331. Hence, it can be said that a misrepresentation or suppression of fact was made by Mrs. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director as to the alleged resignation of Mrs. Gelvezon ..., (Emphasis supplied). One wonders why, despite this finding, the CSC still approved Gelvezon's appointment, deciding simply to rap her on the wrist with a mere admonition. To use the language of Rule 111, Section 23, of Civil Service Rules and Personnel Actions and Policies, she "had intentionally made a false statement of a material fact or had practiced or attempted to practice a deception or fraud in connection with her appointment." Yet the CSC brushed aside this offense as a minor infraction that deserved no sterner action than a mild reproof. Her reinstatement does not square with the high standards the CSC has itself set for the members of the Civil Service. As the constitutional body charged with the improvement of the quality of the civil service, the CSC should have been the first to question Gelvezon's appointment instead of heartily endorsing it.

Parenthetically, we note the Solicitor General's observations that Gelvezon was not really being reinstated as she had never before held the position of Chief Nurse I, having retired only as Senior Nurse, He is correct, strictly speaking, but the word out "reinstatement" was probably used in a generic sense to mean simply returning to the service. At any rate, the point is not really material because the memorandum-circular speaks of "appointment, reinstatement or retention" of the persons covered by its provisions. We hold, in sum, that as a retiree, Gelvezon could not be simply reinstated like any new appointee but had to satisfy the stringent requirements laid down by CSC MemorandumCircular No. 5, s-1983. While it is true that the appointing authority has wide discretion to determine the need to appoint and to assess the qualifications of the person to be appointed, that discretion may not be exercised ex-gratia but "in conformity to the spirit of the law and in a manner to subserve the ends of substantial justice." 7 That discretion may be reviewed and reversed in proper cases, especially where extraordinary care is required to attend its exercise, as in the case at bar. Apart from the fact that the Regional Health Director does not appear to be the official authorized to appoint the private respondent, we are not convinced that Gelvezon was the best choice under the particular circumstances of this case, not the least important of which was the shunting aside of the other candidates, who were eligible and available, besides being incumbent in the service. We also feel that while not the crucial consideration, the private respondent's disqualification should have been taken into serious account in comparing the over-all competence of the candidates instead of being dismissed as a light and forgivable misdeed. It is really curious that Gelvezon was accommodated in the disputed position despite the confluence of formidable arguments against her reinstatement. For prejudicing the rights of the other qualified candidates, the grave abuse of discretion clearly shown here should be corrected and reversed. 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. WHEREFORE, certiorari is GRANTED. CSC Resolution Nos. 89-321 and 90-037 are hereby SET ASIDE as NULL AND VOID. It is so ordered. G.R. No. L-31947 March 21, 1974 ANTONIO P. TORRES, petitioner, vs. OSCAR T. BORJA, ALEJO SANTOS, in his capacity as Acting Director of Prisons, and the HONORABLE ABELARDO SUBIDO, in his capacity as Commissioner of Civil Service, respondents. FERNANDO, J.:p

There are constitutional overtones in this certiorari proceeding to set aside the appointment of respondent Oscar T. Borja to the position of penal supervisor of the Bureau of Prisons, the other respondents being Alejo Santos, then Acting Director of Prisons, and Abelardo Subido, the then Commissioner of Civil Service, with the then Secretary of Justice, now National Defense Secretary Juan Ponce Enrile, not being proceeded against. In effect, this is a quo warranto suit, petitioner asserting a right to the contested office, alleging that his failure to be thus chosen amounted to a clear and plain disregard to constitutional requirements, both substantive and procedural. As to the former, he would invoke the merit and fitness principle enshrined in the fundamental law. 1 As to the latter, he would rely on due process in administrative proceedings in accordance with the cardinal requirements as set forth by Justice Laurel in Ang Tibay v. Court of Industrial Relations. 2 It is to the credit of petitioner's counsel, now Solicitor, Reynato S. Puno, that he could press such contention with learning and with vigor. At bottom, however, the question is really the acceptance or repudiation of the choice of a successor to a vacant position. As will be apparent, the matter was studied with care by three high-ranking public functionaries, precisely entrusted with such responsibility. It strains credulity to impute to them a failure to abide by what the Constitution commands as to the test of fitness. After all, even considering that academically petitioner had a more creditable background, respondent Borja had in his favor experience and seniority. It borders on the unorthodox, the service records of both aspirants being known, to cavil at the allegation of a lack of fullblown hearing concerning the choice of a successor to a vacancy. The standard of due process is fairness. What is proscribed by it is arbitrariness. 3Reliance on the Constitution, whether substantively or procedurally, was thus in vain. The petition must fail. The facts are not in dispute. As shown in the petition, on July 27, 1968, the position of penal supervisor in the Bureau of Prisons fell vacant. Eight days later, on August 4, 1969, respondent Santos, then its Acting Director, recommended to then Secretary of Justice Ponce Enrile that respondent Borja be the successor. Even before the retirement of the incumbent, however, on April 28, 1969, to be exact, petitioner, then training officer, had already protested the proposed promotion of respondent Borja, with the claim that he was academically better prepared as he had two degrees, Bachelor of Arts and Bachelor of Science and he had five civil service eligibilities. On July 23, 1969, there was a communication of the then Secretary Ponce Enrile to respondent Borja that the objection of petitioner to his proposed promotion as penal supervisor was well taken. 4 There was however, a second indorsement of August 11, 1969 from respondent Santos to Secretary Ponce Enrile worded thus: "It may be stated in this connection the cases of retired Penal Supervisor Gil Ofina who only finished 2nd grade civil service eligibility, and retired Penal Supervisor Jose Gatmaitan who only finished 2nd Year High School with a 1st grade civil service eligibility. Moreover, Mr. Magno Castillo, who is only a High School graduate with a 2nd grade civil service eligibility, proposed for promotion as Penal Supervisor, Iwahig Penal Colony, was allowed by that Office, and approved by the Commissioner of Civil Service not earlier than August 7, 1969." 5 On November 28, 1969, Secretary Ponce Enrile gave "due course to the appointment of Mr. Borja to the position of penal supervisor. 6 Its last sentence reads: "The letter of this Department dated July 23, 1969, is set aside accordingly." 7 After setting forth that neither petitioner nor respondent Borja were next in rank to the contested position, the Secretary made clear why it is the latter who should be preferred. Thus: "A review of the records of the case reveals that the Civil Service Commission had in the past approved the appointments of the following to positions of Penal Supervisor: 1. Gil Ofina (retired) finished only second year high school and a second grade civil service eligible; 2. Jose Gatmaitan (retired) finished only second year high school and first grade civil service eligible; and, 3. Magno Castillo a high school graduate and second grade civil service eligible. Mr. Borja is a high school graduate and a second grade and prison guard eligible. The Complaints Committee of the Department of Justice took cognizance of his outstanding performance as shown in the report of that Bureau. On the basis of the commendations and citations given him and

his performance rating of outstanding, it is believed he is fit to perform the duties and responsibilities of penal supervisor." 8 The appointment of respondent Borja was appealed to the Civil Service Commission. 9 The decision of respondent Subido turning down the appeal of petitioner came on January 29, 1970. Why there should be no reversal of the appointment of respondent Borja was therein explained in these words: "Mr. Torres is a Bachelor of Arts and in addition, he is also a Bachelor of Science in Commerce. He is a Supervisor (First Grade) Chief of Police; General Clerical; Cooperative Officer; and Patrolman (City of Manila) eligible. He has been with the Bureau of Prisons since 1951, and has held various positions such as Driver, Prison Guard, Keeper, Supervising Prison Guard and finally as Security Officer I. He attended and completed the following in-service training courses and seminars: Executive Development and Public Administration; Law Enforcement Officer's Course; Special Security Officer's Course; Correctional Administration and Treatment; Supervision Techniques in Correctional Service; Seminar on Custodial Procedures; Seminar on Performance Rating System; Seminar on "The Role of Law Enforcement Agencies in Crime Prevention and Seminar on the Treatment of Offenders." He was the recipient of a citation of Merit Award for academic excellency and for leadership. His efficiency rating for the relevant period is very satisfactory. On the other hand, Mr. Borja is a high school graduate and a 3rd class Prison Guard and a second grade eligible. He started to work for the government in 1942 as a 3rd Class Guard in the Bureau of Prisons, then he was promoted to the positions of 2nd Class Guard; 1st Class Guard; Junior Inspector; Overseer; and Security Officer which position he holds to the present. He completed in-service training courses on Supervision Techniques on Correctional Service and on Custodial Procedures. His efficiency rating for the same period is outstanding." 10 There was a motion for reconsideration for petitioner dated March 4, 1970. Thereafter on March 20 of that year, it was denied. Again respondent Subido gave the reason of the absence of any justification for a reversal. Thus: "This refers to the petition filed by Mr. Antonio P. Torres for reconsideration of the action taken by this Office in a 4th Indorsement dated January 29, 1970, approving the appointment of Mr. Oscar T. Borja as Penal Supervisor in the New Bilibid Prison, Bureau of Prisons at P4404 per annum effective August 4, 1969, and ruling his protest without merit. After a careful restudy of the record of the case, this Office finds that petitioner has not submitted any new material evidence that would warrant modification of the action taken by this Office. Wherefore, the instant petition is hereby denied. In this connection, attention is invited to Section 14 of the Civil Service Memorandum Circular No. 13, series of 1963 which states in parts: 'Only one petition for reconsideration shall be entertained.' " 11 Hence this petition for certiorari before this Court. The bare recital of the undeniable facts demonstrates wellnigh conclusively why this petition for certiorari, as set forth at the outset, is doomed to fail. In the light of the foregoing, it is apparent that the choice of respondent Borja was not contrary to but in accordance with the principle of merit and fitness. Nor do the circumstances disclose any failure to accord petitioner all the opportunity to be heard on his claim that he was entitled to the promotion sought. 1. The plea that only merit and fitness should be the gauge of promotion the public service finds support, as noted, in both the 1935 Constitution and the present Charter. That such should be the case is self-evident. It is a truism that a public office is a public trust. The test then should be, after being clear what kind of work is to be done, who can do it best. To that over mastering consideration, all else is subordinate. It cannot be too often stressed that the protection accorded a civil servant, while undoubtedly accruing to his benefit, is intended primarily to assure that with the security of tenure and rational basis for promotion, there is an inducement for individuals of the requisite skill and ability to enter public service. The standard in this specific case then should be who as between the two contenders met such criterion. It was the decision of the three administrative officials entrusted with such responsibility that respondent Borja was entitled to the promotion. It came about with the

records of both being carefully scrutinized. The very petition with its annexes is indicative that there was not the slightest favoritism or discrimination shown. Respondent Borja appeared to have both experience and seniority on his side. Moreover, he is possessed of the ability to discharge the task incumbent on a penal supervisor. He had earned the promotion then. What is more, there was no disregard of the constitutional principle of merit and fitness. It may not be inappropriate at this stage to refer to Orencia v. Ponce Enrile. 12 There, after stressing that the essential requirement for a place in the public service is the possession of the requisite ability and competence, we upheld the right to the disputed position of assistant chief of the clerks of court division of respondent Guillermina M. Gener, a member of the bar, rather than petitioner whose educational attainment was merely that of a high school graduate. It is quite obvious there is no analogy. In that decision the disparity is rather plain, the position being one in which the possession of a legal background would certainly prove more than salutary. It is not so in the case before us where the contest is over who should be penal supervisor. Whatever advantage may inhere in petitioner having finished college work, with respondent Borja merely completing his high school, is more than offset by the latter's seniority of more than nine years and the experience that was his as a junior inspector, overseer and security officer. To repeat, no infringement of the constitutional requirement as to merit and fitness is discernible. The petition must fail. 2. The invocation of procedural due process by petitioner is equally unavailing. This is not to say that under all circumstances, the insistence on the right to be heard should be rejected outright. It is to be remembered that both under the 1935 Constitution and the present Charter, an officer or employee in the Civil Service is not to be suspended or removed except for cause as provided by law. 13 It follows that for a provision of this character to be truly meaningful, and security of tenure to be really significant, the expected promotion of an employee is not excepted from the operation of the due process guarantee. There is to be no unfairness or arbitrariness. The right to be heard should not be ruled out. Audi alteram partem. The acceptance of this doctrine does not however aid petitioner. For if there is anything that is clear from the undisputed facts, it is that he was accorded full hearing. His very petition makes that clear. Included therein were his six-page protest registered as far back as April 28, 1969 to the proposed appointment of respondent Borja; 14 his seventeenpage appeal to respondent Subido after the appointment made by the then Secretary Ponce Enrile of respondent Borja, dated January 6, 1970 with annexes of its own requiring twelve pages; 15 his ten-page reply to answer dated February 23, 1970 reiterating his claim that he should be given the contested position; 16 and lastly, his fourteen-page motion for reconsideration addressed to respondent Subido dated March 4, 1970. 17 Parenthetically, it may be observed that in all such communications, petitioner was understandably far from being unduly modest, stressing the virtues possessed by him. Moreover, again understandably, he was more than just deprecatory as to the fitness of respondent Borja. It would be an affront to reason therefore to hold that under such circumstances, petitioner was not given the hearing prior to the rejection of his claim to the position so fervently sought by him. 3. The constitutional objection thus being shown to be lacking in merit, the question really boils down as to whether, considering the facts on record, this Court should set aside the decision reached after due care and circumspection by the three high-ranking executive officials that respondent Borja rather than petitioner Torres should be the appropriate choice for the position of penal supervisor. The answer is supplied by Reyes v. Abeleda. 18 There is this relevant excerpt from that decision: "It would seem fairly obvious then that the law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a deviation therefrom fatal. Far from it. If there be adherence to the concept that public office is a public trust, as there ought to be, the criterion should be what public welfare demands, what satisfies public interest. For it is axiomatic that public needs could

best be attended to by officials about whose competency and ability there is no question. To that over mastering requirement, personal ambition must of necessity yield. Discretion if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service, that, rightly construed, calls for a different conclusion. It is well worth repeating that the broad authority of a department head appears indisputable. Such is the policy of the law, a policy reflected with fidelity in the decisions of this Court." 19 Such an approach has substantially been followed. 20 WHEREFORE, the petition for certiorari is denied. No costs. G.R. No. 95425 February 26, 1992 FLORENCIO P. SALLES, petitioner, vs. NICEFORO B. FRANCISCO, CERILO FRANCISCO, HON. JOSE V. ONG and HON. PATRICIA STO. TOMAS,respondents. NOCON, J.: This is a petition for quo warranto seeking to recall, cancel and revoke the appointment of the defendant-appellee Niceforo B. Francisco as Chief Revenue Officer III. The instant petition is a result of the Decision promulgated by the Merit System and Protection Board, Civil Service Commission June 7, 1990 in MSPB Case No. 589, entitled "Florencio P. Salles vs. Niceforo B. Francisco", dismissing petitioner Florencio P. Salles' appeal from the decision dated September 25, 1989 of the Committee on Contested Appointments, Bureau of Internal Revenue, also dismissing his protest on the appointment of respondent Niceforo Francisco to the position of Chief Revenue Officer III, Fiscal Operations Branch, Revenue Region 5, Legaspi City. The undisputed facts of the case are as follows: Respondent Niceforo Francisco has been working with the Bureau of Internal Revenue since 1978 as Revenue Collector I. He was subsequently promoted to the position of Revenue Budget Examiner II effective July 31, 198l; Revenue Budget Officer effective August 1, 1985; and a year later, to the position of Revenue Fiscal Officer effective October 28, 1986. Pursuant to Executive Order No. 127 1 (Reorganizing the Ministry of Finance), the Bureau of Internal Revenue created a Fiscal Operations branch in Revenue Region 5, BIR, Legaspi City which required the appointment of a Chief Revenue Officer. A certain Fe D. Peralta was appointed by BIR Commissioner Bienvenido A. Tan to said position. On being informed of said appointment, petitioner, then a Revenue Enforcement

Officer assigned in the BIR office in Goa, Camarines Sur protested Peralta's appointment with the BIR-Reorganization Appeals Board (BIR-RAB) on the ground that the appointee did not possess the minimum qualification requirements for the position. While petitioner's protest was pending before the BIR-RAB, defendant Francisco was temporarily appointed to the position of Chief Revenue Officer III, Fiscal Operations Branch, Revenue Region 5, BIR, Legaspi City by the then BIR Commissioner Bienvenido A. Tan, Jr. effective November 1, 1987. Meanwhile, in a letter dated July 1, 1988, the protest of petitioner over the appointment of Fe D. Peralta was dismissed for having been filed out of time. Petitioner moved for reconsideration of the BIR-RAB's ruling and this time included in his protest the appointment of defendant Francisco. On July 25, 1988, the BIR-RAB thru its Chairman, informed petitioner about the Rules and Regulations embodied in Revenue Memorandum Order No. 15-88 dated March 7, 1988 and was advised to go to the Civil Service Commission. Hence, the petitioner, in his letter dated August 29, 1988 directed his appeal only against the appointment of defendant Francisco as Chief Revenue Officer III. In his appeal, he advanced the following: (1) That Defendant Francisco is holding the position in a temporary capacity; (2) That appellee is a mere college graduate while appellant is a Certified Public Accountant (CPA); (3) That he has been an Examiner III in the Commission on Audit (COA), and has attended several seminars on Government Accounting and Auditing and taught the subject. On two occasions he has been designated as Officer-in-Charge. Meanwhile, defendant Francisco's temporary appointment to the position of Chief Revenue Officer III was renewed effective November 1, 1988. On March 6, 1989, the Civil Service Commission dismissed 2 petitioner Salles' appeal for lack of merit. The Commission ruled that After a careful review of the records, in the absence of a showing or proof to the contrary, this Commission adheres with the BIR-RAB finding that, subject protest was filed beyond the reglementary period. Section 18 of the Rules on Government Reorganization provides that, "Any officer or employee aggrieved by the appointments made may file an appeal with the appointing authority within ten (l0) days from the last day of posting of the appointments by the Personnel Officer . . ." Assuming however, that the protest was filed within the period prescribed therefor, it cannot, just the same be given due course. Records show that protestant-appellant is not an incumbent of the subject position. Neither was he a holder of a higher level position than herein appellee. His position of Revenue Enforcement Officer (Grade 16) before the BIR reorganization is of the same level, rank and salary to the Revenue Fiscal Officer (Grade 16) held by herein appellee. Such being the case, in the absence of a showing that a holder of a higher level position protested subject appointment in time and/or abuse of authority or discretion was committed in issuing said appointment, the choice of the appointing authority is hereby upheld.

WHEREFORE, the instant appeal of Mr. Florencio P. Salles is hereby dismissed for lack of merit. Unfazed, petitioner Salles sent a letter dated August 14, 1989 to BIR Commissioner Jose U. Ong protesting defendant Francisco's new appointment as Chief Revenue Officer, Fiscal Operations Branch, BIR Legaspi City effective November 1, 1988. While the aforesaid protest of Salles was still unresolved by the Office of the BIR Commissioner, Commissioner Ong permanently appointed defendant Francisco to the contested position of Chief Revenue Officer III effective June 27, 1989. The Committee on Contested Appointments, Bureau of Internal Revenue, where the protest of petitioner was indorsed informed plaintiff that it found no substantial reasons to reconsider the Resolution of the Civil Service Commission in CSC Case No. 178 promulgated on March 6, 1989. Petitioner appealed said ruling to the Merit System Protection Board of the Civil Service Commission, which likewise dismissed his appeal 3 on the ground of res adjudicata. Hence, the instant petition. We find no merit in the petition. Section 19(3) of P.D. No. 807 provides: that when a vacancy occurs in a position in the second level of the Career Service as defined in Section 7, the employees in the government service who occupy the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups and who are competent, qualified and with the appropriate civil service eligibility shall be considered for promotion. Paragraph 4 of the same section likewise provides: that each department or agency shall evolve its own screening process, which may include tests of fitness, in accordance with the standards and guidelines set by the Commission and that promotion boards shall be formed to formulate criteria for evaluation, conduct tests and/or interviews, and make systematic assessment of training and experience. The position of Chief Revenue Officer III to which Francisco was appointed on June 27, 1989 falls under the second level of the career service (Sections 5 and 7, Civil Service Law). Plaintiff, however, questions defendant Francisco's appointment to the said position upon the claim that only CPAs are qualified for appointment to the said position as the functions and duties of such newly created office or position under the Reorganization Act categorically falls under Accountant positions in the Accounting Occupational Group and equivalent positions in allied occupational groups, the duties of which falls squarely within the meaning of the practice of Accountancy, as defined in the Accountancy Board Law and

the Revised Accountancy Law, and petitioner being a CPA, is the one qualified and entitled to be appointed to the position in question and not respondent Francisco. The law in point is Civil Service Memorandum Circular No. 17 S. 1987 which deals specifically on the subject "Requirements of RA 1080 (CPA) Eligibility for Appointment to Accountant and Equivalent Positions in Allied Occupational Groups in the Government" which reads as follows: Pursuant to CSC Resolution No. 87-388 dated October 20, 1987 and the pertinent provisions of Presidential Decree No. 692, otherwise known as the Revised Accountancy Law of 1976 which regulates the practice of Accountancy, the following policies relative to the appropriate civil service eligibility requirement for appointment to Accountant positions and other allied second level positions the duties of which involve practice of the accountancy profession as defined under said Decree, are hereby adopted, to wit: "1. R A 1080 (CPA) eligibility shall be required for appointment to the position of Accountant, and equivalent positions in allied occupational groups the duties of which involve the practice of Accountancy in the following government agencies: a). Executive Departments, including their bureaus/offices/regional offices/attached agencies; xxx xxx xxx 2. For Second Class or lower class cities, provinces, and municipalities, RA 1080 (CPA) eligibility shall only be required for permanent appointment to the position of Chief of the Accounting Division or other Chiefs of Divisions the duties of which involve the practice of the accountancy profession. For Accountant positions lower than the Chief of the Accounting Division or its equivalent, Career Service (Professional) eligibility may be considered, provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, major in Accounting. 3. Incumbents of positions mentioned above who have been appointed under PERMANENT STATUS before the effectivity of this Memorandum Circular on the basis of their civil service eligibilities previously considered appropriate for those positions, shall retain their permanent status. However, they may no longer be promoted to higher positions in these occupational groups requiring RA 1080 (CPA) eligibility as mentioned above until they meet such eligibility requirement. 4. In the absence of an RA 1080 (CPA) eligible and it becomes necessary in the public interest to fill a vacancy of an Accountant position and/or other positions in allied occupational groups, a non-CPA may be appointed as Temporary to the position involved provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, major in Accounting, and provided further that

such temporary appointment shall not exceed twelve (12) months and that the appointee may be replaced sooner if a qualified RA 1080 (CPA) eligible becomes actually and immediately available for employment. It is clear that R.A. 1080 (CPA) eligibility shall only be required for permanent appointment to the position of Chief of the Accounting Division or other Chiefs of Divisions, the duties of which involve the practice of the accountancy profession and that for accountant position lower than the Chief of the Accounting Division or its equivalent, the career service (Professional) eligibility may be considered, provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, Major in Accounting. In the case at bar, petitioner has not shown that the position of Chief Revenue Officer of the Fiscal Operations Branch of the BIR, Legaspi City falls within the category of Chief of the Accounting Division of the BIR. In the absence thereof, the career service (Professional) eligibility of respondent Francisco may be considered sufficient qualification for the contested position. Moreover, in the appointment or promotion of employees, the appointing authority considers not only their civil service eligibilities but also their performance, education, work experience, trainings and seminars attended, agency examination and seniority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. 4 The final choice of the appointing authority should be respected and left undisturbed The court should not substitute its own judgment to that of the appointing authority. WHEREFORE. the petition is dismissed for lack of merit. Costs against petitioner. SO ORDERED. G.R. No. 124374 December 15, 1999 ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. G.R. No. 126366 December 15, 1999

ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents. YNARES-SANTIAGO, J.: Before this Court are three, consolidated petitions 1 filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed. During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents 2 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 which was allegedly signed into law on November 15 or 16, 1972. 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 inTanada vs. Tuvera 3 the presidential decree is deemed never "in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . ." 4 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. For Quezon City CSU employees, 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"). At the heart of these petitions is Section 3 of the Ordinance which provides: Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting 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. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Emphasis ours). 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.

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. 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. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew. We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly. G.R. No. 124374 and G.R. No. 126366 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, 5 and ordering their reinstatement to their former positions in the DPOS. 6 Petitioner brought petitions for certiorari to this Court, 7 to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. 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. We agree with petitioner. 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. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. 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 orsanggunian, 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 orsanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the

City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments." 8 We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. 9 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. Expressio inius est exclusio alterius. 10 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. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for 11 that of the appointing power. This cannot be done. In a long line of cases, we have consistently ruled that 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. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. The Ordinance refers to the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for the exercise of discretion. In Farinas vs. Barba, 12 we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is adiscretionary power. When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment. 13 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. In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a discretionary power and must be performed by the officer in which it is vested." 14 The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr., to reinstate private respondents. Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. In its decision of March 21, 1996 the Court of Appeals held:

It is clear however, that Ordinance No. NC-140, absorbing the "present personnel of the Civil Security Agent Unit" in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of de jure appointments as permanent regular employees at the time, and therefore, by operation of said Ordinance private respondents were automatically absorbed in the DPOS effectively as of March 27, 1990. 15 (Emphasis ours.) The decision is based on the wrong premise. 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, 16 the private respondents' appointments in the defunct CSU were invalid ab initio. Their seniority and permanent status did not arise since they have no valid appointment. For then 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. (Emphasis ours). 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. 17 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. In Debulgado vs. Civil Service Commission 18 we held that "a void appointment cannot give rise to security of tenure on the part of the holder of the appointment." While the Court of Appeals was correct when it stated that "the abolition of an office does not mean the invalidity of appointments thereto," 19 this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The nonrenewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service Commission 20 we treated temporary appointments as follows: 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. (Emphasis ours.)

Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed. 21We note that Section 1 of Ordinance NC-140 provides: There is hereby established in the Quezon City Government the Department of Public Order and Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance. A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or "renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354 In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that "every action must be prosecuted or defended in the name of the real party in interest." 22 A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In Ralla vs. Ralla we defined interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest."23 As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action.

In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement. We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy24 which overturned our rulings in Paredes vs. Civil Service Commission 25 Mendez vs. Civil Service Commission 26 and Magpale vs. Civil Service Commission. 27 In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be over emphasized. The subject of the present case, on the other hand, is "reinstatement." We fail to see how the present petition, involving as it does the reinstatement or nonreinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply. To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judical body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review." 28 In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated functions is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," 29 not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354. WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE. The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED. No costs. SO ORDERED. G.R. No. L-25491 February 27, 1968

ROMEO G. ABELEDA, SECRETARY OF EDUCATION, DIRECTOR OF PUBLIC SCHOOLS, COMMISSIONER OF CIVIL SERVICE & CASHIER AND DISBURSING OFFICER OF THE BUREAU OF PUBLIC SCHOOLS,respondents-appellants. FERNANDO, J.: This petition, filed with the Court of First Instance of Manila, for certiorari and mandamus with preliminary injunction, calls for the determination of who, under the Civil Service Law, 1 has the right to a promotion to fill a vacancy in a competitive or classified position in the government as the person "next in rank" likewise "competent and qualified to hold the position and possessed of an appropriate civil service eligibility. . . ." The facts are not in dispute, the case having been submitted before the lower court on a stipulation of facts. Thus: "That since June 15, 1939 and continuously up to the present, the petitioner has been employed in the government, particularly, in the School Finance Division, Bureau of Public Schools, since July 25, 1940, . . . while respondent Abeleda has been in the government service since August 16, 1937, . . . , that on August 2, 1962, the petitioner was last appointed as Acting Budget Officer III at P5,376 per annum, in the School Finance Division, Bureau of Public Schools, . . . , while respondent Abeleda was last appointed as Budget Officer III in the Medical and Dental Services Division, same Bureau, at P5,376 per annum effective July 1, 1962; that in a Memorandum dated December 10, 1962, the Director of Public Schools submitted to the Secretary of Education an assignment proposal recommending the promotion of petitioner to the position of Budget Officer IV,. . . ; that in a first indorsement dated December 19, 1962 of the respondent Secretary of Education to the respondent Director of Public Schools, the former requested the latter for 'appropriate ranking lists' . . . ; that in a 3rd indorsement dated January 7, 1964, the Secretary of Education instructed the respondent Director of Public Schools to prepare an appointment proposal in favor of respondent Romeo G. Abeleda to the position of Budget Officer IV; that in the 4th indorsement dated January 23, 1964, the petitioner was informed of the respondent Secretary's action on the basic proposition for the promotional appointment of petitioner . . . ; that on February 10, 1964, petitioner filed a formal protest with respondent Commissioner of Civil Service contesting the appointment of respondent Romeo G. Abeleda to the position of Budget Officer IV in the Bureau of Public Schools, School Finance Division, . . . ; that the protest was resolved by the respondent Commissioner of Civil Service against petitioner, . . . ; that respondent Romeo G. Abeleda was promoted from Budget Officer III, School Medical and Dental Services, to Budget Officer, IV, School Finance Division, . . . ." After setting forth the facts and considering the law, the conclusion reached by the lower court was set forth thus: "In view, therefore, of the foregoing, it appearing that the petitioner has the necessary qualifications to the position of the Budget Officer IV, Division of School Finance, Bureau of Public Schools; that he is the officer next in rank in said division to that vacant position; respondent Abeleda is not of equal rank in said division, he, belonging to another independent, separate division, that in point of authority, responsibility and importance, the Budget Officer III of the School Finance Division outranks and is more important than its counterpart in the Medical and Dental Services Division, the appointment and promotion, therefore, of respondent Romeo G. Abeleda, to fill the vacant position of Budget Officer IV, School Finance Division, was in error, in violation of the Civil Service Law on the point, and in excess of the exercise of legal discretion on the part of the respondent Secretary of Education and the Commissioner of Civil Service." The lower court decision was to this effect: "1. The appointment of Romeo Abeleda as Budget Officer IV, Division of School Finance, Bureau of Public Schools, is hereby declared null and void and, therefore, set aside; 2. That the respondents Secretary of Education and Commissioner of Civil

BIENVENIDO F. REYES, petitioner-appellee, vs.

Service are ordered to approve the appointment of the petitioner, Bienvenido F. Reyes, as recommended by the Director of Public Schools." Not being satisfied with the above decision, which to his mind was an erroneous interpretation of the above legal provision and a denial of his right to said position, respondent Abeleda along with the Secretary of Education, the Director of the Bureau of Public Schools and the Commissioner of Civil Service, appealed to this Court. If the law correctly construed be applied to the above facts, the judgment of the lower court must be reversed; the appointment made in favor of respondent Abeleda by the Secretary of Education must prevail. As noted at the outset, a person next in rank, competent and qualified to hold the position and possessing an appropriate civil service eligibility is entitled to a vacancy occurring in any competitive or classified position in the government. There is the proviso however that should there be two or more persons under equal circumstances, seniority must be given preference.2 As between petitioner Reyes and respondent Abeleda, who is the person next in rank? Both as admitted in the Brief of petitioner are in the ranking list, being Budget Officers III, the petitioner in the School Finance Division and respondent Abeleda in the Medical Dental Services Division of the Bureau of Public Schools. Petitioner however, as was set forth in the stipulation of facts 3 was holding such office in an acting capacity, unlike respondent Abeleda whose tenure had permanency. Under the above circumstances it cannot be said that petitioner was the person next in rank. Even on the assumption however that both petitioner Reyes and respondent Abeleda could be considered, in the language of the law, "as persons of equal circumstances" still respondent's appointment by the Secretary of Education could not be declared illegal as the very same proviso makes clear that seniority shall be given preference. There was no denial of the statement in the Brief of respondent Abeleda about his seniority, having been appointed in the government service on August 8, 1937 while petitioner did not join the government until June 15, 1939, having been assigned thereafter to the School Finance Division on July 25, 1940. 4 Now as to the discharge of the functions of Budget Officer III. While petitioner was appointed in an acting capacity on August 21, 1962, respondent Abeleda assumed such position with a permanent status earlier, namely, on July 1, 1962. The right to the promotion then had been earned by respondent Abeleda. There was precisely compliance with, not deviation from, the applicable statutory provision, with the appointment extended to him by respondent Secretary of Education. There is this further point to consider. Referring to the very same section, this Court, in Pilar v. Secretary of Public Works and Communications, 5 speaking through Justice Dizon stressed that "the appointing power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position to be filled . . . ." Passing on the power of the Commission on Elections to appoint election registrars, this Court in Amponin v. Commission on Elections, 6 the opinion being penned by Justice Castro, could fitly summarize the law thus: "Finally, considering that the power to appoint is in essence discretionary, and that there is here absent a showing that in the exercise of the right of choice the [Commission on Elections] abused its discretion, we will not even attempt to substitute our own discretion for that exercised by [it]."

It would seem fairly obvious then that the law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a deviation therefrom fatal. Far from it. If there be adherence to the concept that public office is a public trust, as there ought to be, the criterion should be what public welfare demands, what satisfies public interest. For it is axiomatic that public needs could best be attended to by officials, about whose competency and ability there is no question. To that overmastering requirement, personal ambition must of necessity yield. Discretion if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the officers concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service, that, rightly construed, calls for a different conclusion. It is well worth repeating that the broad authority of a department head appears indisputable. Such is the policy of the law, a policy reflected with fidelity in the decisions of this Court. WHEREFORE, the judgment of the lower court is reversed and the petition for certiorari and mandamusdenied. With costs against petitioner. G.R. No. L-17745 October 31, 1963

ANTONIO VILLANUEVA, petitioner, vs. FELIX BALALLO, respondent. CONCEPCION, J.: This is an appeal from a decision of the Court of First Instance of Ilocos Sur involving purely questions of law. The main facts are set forth in said decision, from which we quote: On November 24, 1959, 14 days after the general elections of November 10, 1959, Inocencio Espiritu, the chief of police of the municipality of Santa, Ilocos Sur, resigned effective at the close of office hours on that day for the reason that he wanted to seek another job (Exh. E). Jose Burgonio, the incumbent mayor then on December 28, 1959, three days before his term expired on December 31, 1959 extended an appointment to the petitioner Antonio Villanueva as chief of police of Santa, Ilocos Sur (Exh. A). On the same date, the provincial treasurer of Ilocos Sur as deputy of the Commissioner of Civil Service and pursuant to the provision of Republic Act No. 2260 approved the appointment. On December 30, 1959, the petitioner Antonio Villanueva took his oath of office as chief of police of Santa, Ilocos Sur before the then mayor Jose Burgonio (Exh. 1). It also appears that the appointee Antonio Villanueva is a civil service eligible

having passed the examination for patrolman (qualifying) on October 2, 1937 with a rating of 86.5 per cent (Exh. J). On January 5, 1960 Jesus R. Bueno, newly elected mayor of Santa, Ilocos Sur, at the election of November 10, 1959, extended an appointment to Atty. Felix Balallo for the same position of chief of police "vice Mr. Inocencio Espiritu, resigned"(Exh. 2). The record shows that Atty. Balallo is also a civil service eligible per his application to be entered in the register of eligibles pursuant to the provisions of Republic Act No. 1080, as amended by Republic Act 1844 (Exh. 1). Before the former appointment of the petitioner Antonio Villanueva could be finally attested by the Commissioner of Civil Service on March 4, 1960 the Commissioner of Civil Service approved the appointment of the respondent Atty. Felix Balallo subject to the usual physical and medical examination and to the availability of funds, that is, provided the former incumbent Inocencio Espiritu has no more leave with pay to his credit. Since the appointment of the petitioner Antonio Villanueva he has been performing his duties as chief of police of Santa and receiving the emoluments therefor. However, the provincial auditor has annotated in the payroll that the payment of the petitioner's salary is subject to reimbursement if and when the matter is decided against him. In view of this predicament, the Commissioner of Civil Service in his 4th indorsement dated May 13, 1960 to the provincial treasurer (Exh. 5) finally decided that the attestation made by the provincial treasurer under section 20, Republic Act 2260 is not final for it is subject to review by the Commissioner of Civil Service; that the appointment made to Antonio Villanueva has been revoked upon the appointment of Atty. Felix Balallo to the same position. By virtue of the aforementioned indorsement (Exh. 5), Mayor Jesus Bueno advised the petitioner Antonio Villanueva "... to cease rendering further service in the Police Department ... and to return all the property of the said department...to the municipal treasurer." (Exh. 7). On June 3, 1960, the petitioner filed this quo warranto proceedings and as prayed for, the Court on June 6, 1960 issued the writ of preliminary mandatory injunction upon the petitioner filing a bond in the sum of P2,000. (Record pp. 91-93). In due course, the Court of First Instance of Ilocos Surrendered judgment sustaining the action taken by the Commissioner of Civil Service and, accordingly, dismissing the complaint without costs, as well as dissolving the writ of preliminary injunction issued by said court on June 7, 1960. Hence, this appeal by Villanueva. The decision appealed from is mainly based upon our rulings in Gorospe vs. Secretary of Public Works and Communications, G.R. No. L-11090 (January 31, 1959) and Cui vs. Ortiz, G. R. No. L-13753 (April 29, 1960), but these cases are not in point. The first involved an employee who had been found guilty of certain irregularities and, accordingly, ordered dismissed by the Commissioner of Civil Service, for which reason a subsequent appointment in favor of the same employee was disapproved by the Commissioner of Civil Service, said previous dismissal being a ground for the disapproval of the new appointment, under Section 5 Rule of the Civil Service Rules, reading: 5. The Commissioner may, in his discretion, refuse to examine an applicant, or to certify or attest an appointment of an eligible, who is physically unfit for the performance of the duties of the position to which he seeks appointment; or who

has been guilty of a crime, or of infamous, notoriously disgraceful, or immoral conduct, drunkenness, or dishonesty; or who has been dismissed from the service for other deliquency or misconduct; or who has intentionally made a false statement in any material fact, or practiced or attempted to practice any deception or fraud in securing his examination, registration, or appointment. Any of the foregoing disqualifications shall be good cause for the removal of the person from the service after his appointment. Indeed, if the grounds for disqualification enumerated in the foregoing provision are, likewise, grounds for removal, it follows that the refusal of the Commissioner of Civil Service to approve the appointment of Gorospe was fully justified for it would serve no useful purpose to approve the appointment and, at the same time, to remove the appointee. Petitioner herein does not fall, however, under any of the aforementioned disqualifications or causes for removal. Neither is the second case controlling in the one at bar for the appointment involved in the Cui case required the approval of the President which was not secured by him. Hence, his appointment was not completed. The appointment in the present case did not require said approval of the President. In fact, Mayor Burgonio had applied for presidential authority to fill the vacancy resulting from the resignation of Inocencio Espiritu as Chief of Police of Santa, and the Office of the President replied stating that said "authority ... is not necessary". The issue in this case hinges on the role of the Commissioner of Civil Service under the provisions of the Civil Service Act requiring his attestation to appointments made in the civil service. As stated by this Court in the Gorospe case (supra), the appointment of an employee in the civil service "must be submitted to the Commissioner of Civil Service for approval to determine whether the prospective appointee is qualified to hold the position." In the language of former Deputy Commissioner of Civil Service, Gregorio Rasalan (in his book on the Philippine Civil Service Law, pp. 27 and 28): If the appointee concerned is a civil service eligible and otherwise qualified for the position and the appointing authority has already performed all the acts necessary to make the appointment complete, a probational, promotional, transfer or reinstatement appointment may not be withdrawn without the consent of the appointee. ... Pursuant to law and regulations an appointment in the service must be submitted to the Commissioner of Civil Service for determination whether the proposed appointee is qualified to hold the position. .... When the appointee is qualified, as petitioner herein admittedly is, then the Commissioner of Civil Service has no choice but to attest to the appointment. It has been repeatedly held that an appointment becomes complete upon the performance of the last act required by law of the appointing power. The attestation required of the Commissioner of Civil Service is merely a check to assure compliance with the civil service laws. In fact, upon attestation by the provincial treasurer the appointee may collect the corresponding salaries, although subject to the condition that, if the Commissioner of Civil Service should later on properly reject the appointment by reason of lack of eligibility, as provided in said Section 5, Rule II, of the Civil Service Rules, then the appointment shall lapse, despite the aforementioned attestation by the provincial treasurer. This notwithstanding, the amounts collected by the appointee, by way of salary, prior to notice of the unfavorable action taken by the Commissioner of Civil Service, shall be deemed validly paid to said appointee. This goes to

show that the appointment in question is not only valid, but, also, complete prior to said notice, for, otherwise, said payment could not be deemed legally made. WHEREFORE, the decision appealed from is hereby reversed, and another one shall be entered granting the writ prayed for and declaring that petitioner Antonio Villanueva is the duly appointed and qualified chief of police of the Municipality of Santa, Ilocos Sur; that, as such, he is legally entitled to perform the powers and duties of said office and to receive the emoluments attached thereto; and that respondent Felix Balallo has no right to said office and, consequently, ordering him to yield the same to the aforementioned petitioner, as well as to refrain from obstructing or interfering in any manner whatsoever in the discharge by the latter of the functions of said office, with costs against said respondent. It is so ordered. G.R. No. L-39451 February 20, 1989 ISIDRO M. JAVIER, petitioner-appellee, vs. PURIFICACION C. REYES, respondents-appellant.** SARMIENTO, J.: Before the Court is a certified case involving pure questions of law. The facts, as found by the trial court, are as follows: ...It is alleged that petitioner was the duly appointed Chief of Police of Malolos, Bulacan, on November 7, 1967 by the then Mayor Victorino B. Aldaba, which appointment was confirmed and approved by the Municipal Council of the said municipality on the same date as per Resolution No. 210, Series of 1967; that the following day, petitioner took his oath of office and thereafter assumed and discharged the rights, prerogatives and duties of the office; that on January 3, 1968, pending approval and attestation of his appointment by the Civil Service Commission, respondent, who had then assumed the office of Municipal Mayor, recalled petitioner's appointment from the Civil Service Commission in her letter of said date; that not satisfied with her letter of recall, respondent summarily, arbitrarily and illegally ousted and relieved petitioner as Chief of Police and at the same time, designated Police Lt. Romualdo F. Clements, a non-eligible, as Officer-in-Charge of the Police Department, in her memorandum dated January 12, 1968, that on February 2, 1968, pursuant to the letter of recall, the Civil Service Commission returned the appointment papers of petitioner without action, duly excepted to by petitioner in his motion for reconsideration dated February 16, 1968; that on May 2, 1968, the Civil Service Commission attested and approved the appointment of petitioner as such Chief of Police, in its 3rd Indorsement, pertinent portion of which reads as follows: In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of September 26, 1967, notifying this Office that the appointment of Mr, Bayani Bernardo as Chief of Police of Malolos has not been confirmed by said Council, and as the consent of the Municipal Council is a mandatory requirement under Section 1 of Rep. Act 1551, the said appointment is considered null and void. In view thereof, the attached appointment of Mr. Isidro M. Javier has been approved as permanent under Section 24 (b) of R.A. 2260...;

that in its letter to respondent dated July 9, 1968 wherein its ruling contained in the aforequoted 3rd Indorsement was reiterated, the Civil Service Commission directed respondent "that steps be taken immediately to install Mr. Javier as Chief of Police of that Municipality (Malolos)"; that notwithstanding the aforementioned ruling and directive, respondent neglected and refused to reinstate petitioner to tile position of Chief of Police of Malolos which act is specifically enjoined upon her as Municipal Mayor and public officer, in Sec. 19, Article IV of Rep. Act 2260 otherwise known as the Civil Service Act o)f 1959; that as a result of respondent's refusal to perform the act enjoined upon her by law, petitioner was deprived of his salary since November 8, 1967 up to his ouster on January 13, 1968 and from then on up to the present; that as a further consequence of the inaction of respondent, petitioner suffered social humiliation and embarrassment, was exposed to public ridicule, causing him mental anguish thereby sustaining moral damages in the amount of P5,000.00 and was forced to engage counsel to prosecute his rights for the sum of Pl,000.00 attorney's fees. Respondent denies the material allegations of the petition and as special and affirmative defenses alleges that one Bayani Bernardo was appointed Chief of Police of Malolos by the then Mayor Jovencio C. Caluag on September 4, 1967; that likewise, Isidro M. Javier, petitioner herein, was appointed Chief of Police of the same municipality on November 8, 1967 by the then Mayor Victorino B. Aldaba, both of which appointments were approved by the Civil Service Commission; that in justifying the approval of the appointment of Bayani Bernardo, despite lack of consent of the Municipal Council, the Civil Service Commission stated in its 7th indorsement dated January 17, 1968, as follows: ...The non-retention of the phrase "With the consent of the Municipal Council " found in Section lf of the Republic Act No. 1551 (effective June 16, 1966) which, insofar as pertinent, x x x only shows the clear intention of the lawmaking body to amend the provision first above quoted by the Police Act of 1966 which vest in the Mayor the sole authority to appoint members of the police force with exception of course, of cities whose charters may require the participation of the council in such matters. Furthermore, the Decentralization Act of 1967 (effective September 12, 1967) does not require the consent of the Municipal Council on the appointment of policemen. ... that the same Commission, however, in approving the appointment of petitioner Isidro Javier, stated in its 3rd indorsement of May 2, 1968, as follows: ... In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of September 26, 1967 notifying this Office that the appointment of Mr. Bayani Bernardo Chief of Police of Malolos, Bulacan has not been confirmed by said Council as the consent of the Municipal Council is a mandatory requirement under Sec. 1 of Republic Act 1551, the said appointment is considered null and void. In view thereof, the attached appointment of Mr. Isidro M. Javier has been approved ... that in view of the obvious conflict of both actions of the Civil Service Commission which virtually renders the two appointments apparently valid, respondent is placed in a set of circumstances wherein her action in favor of either of the appointees may render her personally liable for salaries and other damages in favor of the other.

Having been granted the right to intervene, Bayani Bernardo moved to dismiss the petition on the grounds that the cause of action of petitioner has already prescribed and/or is barred by the Statute of Limitations and that the present petition is not founded on a clear, complete, undisputed and indubitable legal right. However, having been filed out of time, the motion to dismiss was not resolved and intervenor was declared in default in the order of this Court dated September 26,1969. The following facts have been admitted by the parties: that petitioner Isidro M. Javier was appointed Chief of Police of Malolos, Bulacan on November 7,1967 by the then Mayor Victorino B. Aldaba, and approved by the Civil Service Commission on May 2, 1968; that petitioner took his oath of office as such on November 8, 1967 and immediately assumed the position and discharged his duties until January 13, 1968 when he was separated from office by respondent Municipal Mayor Purificacion Reyes; that respondent recalled the said appointment of petitioner on January 3,1968 pursuant to which said appointment was returned by the Civil Service Commission returning his appointment on the basis of which the said commission reconsidered the same and approved his appointment on May 2, 1968; that since May 2, 1968 to the present, respondent has not reinstated the petitioner notwithstanding a follow-up letter circular dated July 9, 1968 of the Commission of Civil Service, directing the immediate reinstatement of petitioner; that one Bayani Bernardo was also appointed Chief of Police of Malolos, Bulacan on September 4,1967, approved by the Commissioner of Civil Service on September 17,1967; and that said appointment of Bayani Bernardo by the then Mayor Jovencio Caluag was not referred to the Police Commission for decision. (pp. 164-168, Record) 1 The legal questions involved are as follows: (1) When an appointment to the position of municipal chief of police was made by a municipal mayor and said appointment was not approved by the municipal council and such lack of approval lasted for more than ninety (90) days from the issuance of the appointment, will Sec. 8 of R.A. 4864, otherwise known as the Police Act of 1966 apply? (2) When two appointments to one and the same position were both approved by the Civil Service Commission on the basis of two legal provisions, which one will prevail over the other ? (Pp. 1-2, Appellant's Brief) 2 The Court finds that preeminently, the question is: Between the petitioner's appointment and that of Bayani Bernardo, which prevails? It shall be recalled that the petitioner was appointed Chief of Police of Malolos, Bulacan, on November 7, 1967, by then Mayor Victorino Aldaba and the following day, took his oath of office. He discharged the powers of the office until January 13, 1968 when the respondent, who had meanwhile succeeded as local chief executive, and in an apparent political maneuver, removed him in favor of Bayani Bernardo. On the other hand, Bernardo never assumed office or took his oath. It cannot be said, then, that he had accepted his appointment. Such an appointment being ineffective, we hold that the petitioner's appointment prevails.

Acceptance is indispensable to complete an appointment. The fact that Bernardo's appointment was confirmed by the Civil Service Commission does not complete it since confirmation or attestation by the Commission, although an essential part of the appointing process, 3 serves merely to assure the eligibility of the appointee. 4 Furthermore, Bernardo never contested the petitioner's right to office. He did, of course, intervene in themandamus suit, but it was a belated effort to assert his alleged rights. It is not indicative of an interested party. It was too little and too late. Bernardo's argument that he had thought it "prudent" 5 to await a clarification on the double appointments comes as a lame excuse. He should have challenged the petitioner's subsequent appointment, rather than allow events to take their course. The Court believes that he is guilty of laches. On the other hand, we cannot say the same thing as far as the petitioner is concerned. The records show that he was appointed on November 7, 1967, and the following day, November 8, 1967, he took his oath of office and discharged the duties appurtenant thereto until January 13, 1968, when the succeeding mayor, the herein respondent Purificacion Reyes, recalled his appointment and appointed another. Thereupon, the petitioner went to the Civil Service Commission to ask for reinstatement. Finally, he brought suit for mandamus. These acts amounted to acceptance and gave rise to a vested right to the office in his favor. 6 This case should be distinguished from Cristobal v. Melchor, 7 where we held that a party is not precluded by laches from pursuing reinstatement (notwithstanding the lapse of the oneyear period within which to sue on quo warranto.) In that case, we were impressed by the efforts of the dismissed employee to seek reinstatement upon assurances from his superiors that one would be forthcoming. Moreover, we said that Ingles v. Mutuc, 8 in which we ordered reinstatement, was the law of the case among the parties, although the dismissed employee was not a party thereto. In the case at bar, Bayani Bernardo never undertook steps that would have convinced us that he was interested in, or had accepted, the appointment. Let the Court say that it would have been differently minded had he done so. 9 Under the circumstances, there is no necessity in delving on the questions raised at the outset. Our findings herein render them moot, and academic. WHEREFORE, the respondent Mayor, or her successor in office, as well as the respondent, the Municipality of Malolos, Bulacan, are ORDERED to REINSTATE the petitioner to office of Chief of Police, Malolos, Bulacan, or its equivalent, or to any position equivalent in rank and pay, subject to the requirements of age and fitness, and to PAY him back salaries equivalent to five (5) years without G.R. No. 86439 April 13, 1989 MARY CONCEPCION BAUTISTA, petitioner, vs. SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents.

PADILLA, J.: The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of which appointments by the President, under the 1987 Constitution, are to be made with and without the review of the Commission on Appointments. The Mison case was the first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution which provides: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or 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. He shall also 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. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the executive department, ambassadors, other public ministers and consuls, or 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." All other appointments by the President are to be made without the participation of the Commission on Appointments. Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid and in accordance with the Constitution. The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect and obedience accorded to it by the people, especially the officials of government, who are the subjects of its commands. Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or not the appointment by the President of the Chairman of the Commission on Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the litigation, mindful that what really matters are the principles that will guide this Administration and others in the years to come.

Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the (CHR), is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. 2 The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights. It provides: (c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this case of certain elements absent in the Mison case makes necessary a closer scrutiny. The facts are therefore essential. On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion Bautista as"Acting Chairman, Commission on Human Rights." The letter of designation reads: 27 August 1987 M a d a m: You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes. Very truly yours, CORAZON C. AQUINO HON. MARY CONCEPCION BAUTISTA 3 Realizing perhaps the need for a permanent chairman and members of the Commission on Human Rights, befitting an independent office, as mandated by the Constitution, 4 the President of the Philippines on 17 December 1988 extended to petitioner Bautista a

permanent appointment as Chairman of the Commission. The appointment letter is as follows:17 December 1988 The Honorable The Chairman Commission on Human Rights Pasig, Metro Manila M a d a m: Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite their respective names in the Commission on Human Rights: MARY CONCEPCION BAUTISTA Chairman ABELARDO L. APORTADERA, JR Member SAMUEL SORIANO Member HESIQUIO R. MALLILLIN Member NARCISO C. MONTEIRO Member By virtue hereof, they may qualify and enter upon the performance of the duties of the office furnishing this Office and the Civil Service Commission with copies of their oath of office. Very truly yours, CORAZON C. AQUINO 5 It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights, requiring her to furnish the office of the President and the Civil Service Commission with copies of her oath of office. On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of office is as follows: OATH OF OFFICE I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having been appointed to the position of CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will discharge to the best of my ability all the duties and responsibilities of the office to which I have been appointed; uphold the Constitution of the Republic of the Philippines, and obey all the laws of the land without mental reservation or purpose of evasion. SO HELP ME GOD. MARY CONCEPCION BAUTISTA

SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila. MARCELO B. FERNAN Chief Justice Supreme Court of the Philippines

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman of the Commission on Human Rights which, as previously stated, she had originally held merely in an acting capacity beginning 27 August 1987. On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on Appointments requesting her to submit to the Commission certain information and documents as required by its rules in connection with the confirmation of her appointment as Chairman of the Commission on Human Rights. 7 On 10 January 1989, the Commission on Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting of the Commission on Appointments Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of the Commission on Human Rights. 8 On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating, for the reasons therein given, why she considered the Commission on Appointments as having no jurisdiction to review her appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the Commission on Appointments' Chairman reads: January 13, 1 989 SENATE PRESIDENT JOVITO R. SALONGA Chairman Commission on Appointments Senate, Manila S i r: We acknowledge receipt of the communication from the Commission on Appointments requesting our appearance on January 19, 1989 for deliberation on our appointments. We respectfully submit that the appointments of the Commission commissioners of the Human Rights Commission are not subject to confirmation by the Commission on Appointments. The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has expressly mentioned the government officials whose appointments are subject to the

confirmation of the Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those. Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it was expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The exclusion again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear denial of authority to the Commission on Appointments to review our appointments to the Commission on Human Rights. Furthermore, the Constitution specifically provides that this Commission is an independent office which:

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights" 10 and informing Secretary Macaraig that, as previously conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads: 1 February 1989 HON. CATALINO MACARAIG, JR. Executive Secretary Malacanang, Manila S i r:

a. must investigate all forms of human rights violations involving civil and political rights; b. shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which may affect human rights; c. may call on all agencies of government for the implementation of its mandate. The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power and therefore the grant of that authority to review a valid exercise of the executive power can never be presumed. It must be expressly granted. The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of Commissioners of the Commission on Human Rights. In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit myself to the Commission on Appointments for the purpose of confirming or rejecting my appointment. Very truly yours, MARY Chairman 9 CONCEPCION BAUTISTA

This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights. As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights. Very truly yours, AOUL Secretary 11 V. VICTORINO

On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista that the motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows:1 February 1989 ATTY. MARY Commission on Integrated Bar Bldg. Pasig, Metro Manila CONCEPCION Human of the BAUTISTA Rights Philippines

Dear Atty. Bautista: Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on Appointments, assembled in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission on Human Rights is respectfully conveyed. Thank you for your attention. Very truly yours, AOUL Secretary 12 V. VICTORINO

of the Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground that they have no lawful and constitutional authority to confirm and to review her appointment." 14 The prayer for temporary restraining order was "to enjoin the respondent Commission on Appointments not to proceed further with their deliberation and/or proceedings on the appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc. issued in the course of their deliberations." 15 Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from demanding courtesy resignations from officers or separating or dismissing employees of the Commission. Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal, courtesy resignation, i removal and reorganization and other similar personnel actions. 17 Respondents were likewise required to comment on said amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof. Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court required petitioner to reply to respondent Mallillin's comment . 21 Petitioner filed her reply. 22 In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of government, the Court did not issue a temporary restraining order directed against it. However, this does not mean that the issues raised by the petition, as met by the respondents' comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did not in Mison. As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by Her Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted for review and confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated. The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of office and actually assuming and discharging the functions and duties thereof, could extend another appointment to the

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news item is here quoted in full, thus Aquino names replacement for MaryCon President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by the Congressional commission on appointments. The President designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the Commission pending the resolution of Bautista's case which had been elevated to the Supreme Court. The President's action followed after Congressional Commission on Appointments Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on to her position after her appointment was not confirmed for the second time. For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if she insists to stay on her office. In effect, the President had asked Bautista to vacate her office and give way to Mallillin (Mari Villa) 13 On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad interimappointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court the present petition for certiorari with a prayer for the immediate issuance of a restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect any action of the Commission on Appointments as well as

petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments. The Court, with all due respect to both the Executive and Legislative Departments of government, and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988, 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 on 17 December 1988 as Chairman of the Commission on Human Rights was a completed act on the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23 xxx xxx xxx The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. xxx xxx xxx Some point of time must be taken when the power of the executive over an officer, not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. .... xxx xxx xxx But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. xxx xxx xxx THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989 It is respondent Commission's submission that the President, after the appointment of 17 December 1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and in fact, that no new or further appointment could

be made to a position already filled by a previously completed appointment which had been accepted by the appointee, through a valid qualification and assumption of its duties. Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that the President (with Congress agreeing) may, from time to time move power boundaries, in the Constitution differently from where they are placed by the Constitution. The Court really finds the above contention difficult of acceptance. 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. 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. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989 Under this heading, we will assume, ex gratia argumenti, 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 petitioner 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 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. Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was anad 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, can not bead interim appointments. EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL. Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there was greater reason for her removal by the President and her replacement with respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and academic. We do not agree that the petition has become moot and academic. To insist on such a posture is akin to deluding oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the substantive questions of constitutional law raised by petitioner, the records clearly show that petitioner came to this Court in timely manner and has not shown any indication of abandoning her petition. Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows: WHEREAS, the Constitution does not prescribe the term of office of the Chairman and Members of the Commission on Human Rights unlike those of other Constitutional Commissions; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order: SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows: The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in office shall be at the pleasure of the President.

SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven. (Sgd.) CORAZON C. AQUINO President of the Philippines By the President: (Sgd.) JOKER P. ARROYO Executive Secretary 24 Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 issued by the President, Sec. 2(c) of which provides:
25

was

Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointments to any vacancy shall be only for the unexpired term of the predecessor. It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and Members of the Commission on Human Rights which is seven (7) years without reappointment the later executive order (163-A) speaks of the tenure in office of the Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the President." Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated: The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no officer or employee in the Civil Service may be removed or suspended except for cause, as provided by law" (Art. XII, section 4), and this fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon the pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of his term. 27 When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision that "the term of office and other qualifications and disabilities of the Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution). As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the constitutional design to give the Commission the needed independence to perform and accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and Members of the Commission on Human Rights shall have a "term of office." Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent as the Commission on Human Rights-and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional. The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with the constitutional intent of independence for the Commission. Thus MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact that regardless of who is the President or who holds the executive power, the human rights issue is of such importance that it should be safeguarded and it should be independent of political parties or powers that are actually holding the reins of government. Our experience during the martial law period made us realize how precious those rights are and, therefore, these must be safeguarded at all times. xxx xxx xxx MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of the Commission on Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain commissioner and that commissioner is subject to the President, therefore, any human rights violations committed under the person's administration will be subject to presidential pressure. That is what we would like to avoid to make the protection of human rights go beyond the fortunes of different political parties or administrations in power. 28 xxx xxx xxx MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from executive influence because many of the irregularities on human rights violations are committed by members of the armed forces and members of the executive branch of the government. So as to insulate this body from political interference, there is a need to constitutionalize it. 29

xxx xxx xxx MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I would refer to a previous inquiry that there is still a need for making this a constitutional body free or insulated from interference. I conferred with former Chief Justice Concepcion and the acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from executive control or interferences, since many of the abuses are committed by the members of the military or the armed forces. 30 xxx xxx xxx MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to Congress, this commission will be within the reach of politicians and of public officers and that to me is dangerous. We should insulate this body from political control and political interference because of the nature of its functions to investigate all forms of human rights violations which are principally committed by members of the military, by the Armed Forces of the Philippines. 31 xxx xxx xxx MR. GARCIA. The critical factor here is political control, and normally, when a body is appointed by Presidents who may change, the commission must remain above these changes in political control. Secondly, the other important factor to consider are the armed forces, the police forces which have tremendous power at their command and, therefore, we would need a commission composed of men who also are beyond the reach of these forces and the changes in political administration. 32 xxx xxx xxx MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to function effectively, must be invested with an independence that is necessary not only for its credibility but also for the effectiveness of its work. However, we want to make a distinction in this Constitution. May be what happened was that it was referred to the wrong committee. In the opinion of the committee, this need not be a commission that is similar to the three constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be in that article. 33 xxx xxx xxx MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is not involved in the project. How sure are we that the next President of the Philippines will be somebody we can trust? Remember, even now there is a growing concern about some of the bodies, agencies and commission created by President Aquino. 34 xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is giving less importance to a truly fundamental need to set up a body that will effectively enforce the rules designed to uphold human rights. 35 PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be removed from office before the expiration of her seven (7) year term. She certainly can 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, 36 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 or informations 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. 37 This is due process in action. This is the way of a government of laws and not of men. A FINAL WORD It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human Rights (pending decision in this case) instead of appointing another permanent Chairman. The latter course would have added only more legal difficulties to an already difficult situation. WHEREFORE, the petition is GRANTED. Petitioner 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. The temporary restraining order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or terminating personnel of the Commission on Human Rights is made permanent. SO ORDERED. G.R. No. L-20864 August 23, 1963

This is a quo warranto proceeding originally filed with this Court and involves the position of Chairman of the Board of Directors of the National Waterworks and Sewerage Authority. The petitioner, Elpidio Valencia, was, on 4 October 1961, "designated Acting Chairman" of the board of directors of the said Authority by the then President of the Philippines, Carlos P. Garcia. Allegedly upon information that the then President Garcia had extended him an ad interim appointment, petitioner took an oath of office "to the position of Chairman Ad Interim, Board of Directors. National Waterworks and Sewerage Authority". This oath of office was couched in the usual manner, in both form and substance, and was subscribed and sworn to by the petitioner on 25 October 1961 before President Garcia. On 27 April 1962, the Commission on Appointments confirmed the appointment of Secretary Valencia "as Chairman of the Board . . . for a term expiring 20 July 1967 . . .". On 2 June 1962, however, respondent Secretary of National Defense Macario Peralta, Jr. was appointed ad interim to the same position by President Diosdado Macapagal. Thereafter, the petitioner ceased to attend any board meeting, and on 9 February 1963, he instituted the present petition. The petitioner challenges the legality of the respondent's appointment on the ground that the position in controversy is not vacant, since he (the petitioner) has not resigned nor has he been removed for cause; and inasmuch as he assumed office on 25 October 1961, his tenure will expire on 25 October 1967, a term of six years, as fixed in Section 3 of Republic Act No. 1383. In a verified answer the Solicitor General interposed the following defenses: (a) that the only Appointment extended to the petitioner was as "acting" chairman, dated 4 October 1961, and it was in such "acting" capacity that the petitioner accepted the said office; (b) that the respondent denies, for lack of sufficient information, that the petitioner took the oath of office upon the information made to him by the then President Garcia that the latter had extended an ad interim appointment to the former; (c) that the confirmation by the Commission on Appointments produced no legal effect there being no valid appointment; and (d) that while an ad interimappointment was prepared for the petitioner on 25 December 1961 but antedated 6 November 1961, it was never released to the petitioner, and the original is still with the Office of the President, wide from the coverage of said unreleased appointment by Administrative Order No. 2 of President Macapagal withdrawing and recalling all "midnight appointments" made by the former President.1wph1.t We fail to see any merit in petitioner's case. The only choice of which there is any reliable evidence on record is his designation as Acting Chairman of the NAWASA Board of Directors. This designation, being of revocable and temporary character, could not ripen into a permanent appointment, even if it was subsequently confirmed by the Commission on Appointments, because confirmation presupposes a valid nomination or recess appointment, of which there is no trace. Neither does the fact that on 25 October 1961 petitioner Valencia subscribed an oath of office as ad interim appointee to the position help his case, since the oath clearly does not correspond to the temporary designation as Acting Chairman that was accorded him. Petitioner argues that his oath and confirmation imply a prior ad interim appointment. We are of the opinion that it was incumbent upon this petitioner to clearly prove under what kind of appointment he obtained title to the office, if any, and when such appointment was made. Indeed, the better rule requires some kind of written memorial that could render title to public

ELPIDIO VALENCIA, petitioner, vs. MACARIO PERALTA, JR., respondent. REYES, J.B.L., J.:

office indubitable; for, as pointed out in People vs. Murray, 70 N.Y. 521 (cited in Mechem, Public Offices, pp. 50-51): It would be unfortunate if the title to office of one upon whose official acts public interests and private rights hinged, did or could be made to depend upon the verbal declarations and statements of the person having the power to make the appointment, to be proved by parol and liable to be forgotten, misunderstood or misreported, subject to all the contingencies and infirmities which are incident to verbal evidence or evidence by parol, so pregnant of mischief and misfortune as to have led to the enactment of the statute of frauds. It will not be presumed that the Legislature, while making void contracts involving trifling pecuniary interests, unless evidenced by some writing, intended that important civil offices should be conferred without a commission or any writing, but simply by a verbal statement of an individual in any form which by the bystanders should be understood as expressing a present intent to make the appointment; and a liberal interpretation will be given to the statutes bearing upon the subject if necessary to avoid any such conclusion. . . . . . . . . . Affecting the public, and not merely private rights, and being done under the authority of the sovereign power and not under individual authority, it should be authenticated in a way that the public may know when and in what manner the duty has been performed. These reasons apply with greater force to an appointment being merely drawn by inference or conjecture. Nowhere is the danger of relying on alleged verbal or implied designations to office made clear as in the case now before us. While the petitioner took his oath of office as ad interim appointee on 25 October 1961, the letter of transmission received by the Commission on Appointments recited as follows: Hon. Elpidio Valencia, as Chairman of the Board of Directors of the National Waterworks and Sewerage Authority, for a term expiring July 20, 1967, date of appointment November 6, 1961"; and the Secretary of the Commission has, in turn, certified that said body, on 27 April 1962, confirmed petitioner's appointment of 6 November 1961. In addition, the certificate of the Office of the President states that the draft of petitioner's ad interim appointment, dated 6 November 1961, was processed on 25 December 1961, but was not released and is still in that office. Since there could not be two appointments for the same position, we are now faced with a most intriguing situation: If an ad interim appointment existed, either it preceded the petitioner's oath of office of 25 October 1961, and it lapsed because it was not confirmed by the Commission on Appointments, or else the appointment was only made on 6 November 1961, was duly confirmed, but also lapsed because petitioner Valencia never took a qualifying oath of office under it. Certainly he could not have qualified by taking an oath of office on 25 October, ten days before the appointment was extended. To cap it all, there is on record only one written designation of petitioner, but is mere Acting Chairman, dated 4 October 1961, that was not a permanent appointment, and was revocable at any time by the Chief Executive, and actually revoked by his subsequent designation of respondent Peralta.

With the confusion surrounding petitioner's case, the Court has no alternative but to declare that the petitioner has failed to establish title to the office he claims. WHEREFORE, the petition for a writ of quo warranto is denied, with cost against petitioner. So ordered. G.R. No. 92403 April 22, 1992 VICTOR A. AQUINO, petitioner, vs. CIVIL SERVICE COMMISSION and LEONARDA D. DE LA PAZ, respondents. MEDIALDEA, J.: This petition for certiorari with prayer for the issuance of a restraining order seeks to nullify the resolutions issued by the respondent Civil Service Commission, namely: (1) Resolution No. 88-820 dated November 7, 1988 reversing the decision of the Merit Systems Protection Board dated February 5, 1988 which sustained the decision of the Secretary of Education, Culture and Sports dated May 4, 1987 upholding the appointment of Mr. Victor A. Aquino as Supply Officer I in the DECS, Division of San Pablo City; and (2) Resolution No. 90-224 dated February 27, 1990 denying the motion for reconsideration with prayer for issuance of temporary restraining order for lack of merit. The antecedent facts are as follows: Petitioner Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of San Pablo City, was designated on July 20, 1984 as Officer-in-Charge of the Division Supply Office by the DECS Regional Director Saturnino R. Magturo (Annex "H", petition, p. 55, Rollo) in view of the retirement of the Supply Officer I, Mr. Jose I. Aviquivil. Prior to such designation, or from the period February 16, 1984 to June 16, 1984, petitioner was designated as Property Inspector and In-Charge of the Supply Office performing the duties and responsibilities of the Supply Officer I (p. 55, Rollo). Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of City Schools of San Pablo City, Milagros Tagle, issued a promotional appointment to private respondent Leonarda D. de la Paz as Supply Officer I in the DECS Division of San Pablo City. She assumed and performed the duties and functions of the position and received the compensation and benefits therefor. At the time of her appointment, private respondent was then holding the position of Clerk II, Division of City Schools of San Pablo City. From August 25, 1976 to September 1983, she was designated as Assistant to the Supply Officer (DECS decision, p. 31, Rollo). The Civil Service Regional Office IV approved her appointment as permanent "provided that there is 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" (Annex "A", Comment of CSC, p 164, Rollo).

One (1) month after, or on October 20, 1986 petitioner filed a protest with the DECS Secretary questioning the qualification and competence of private respondent for the position of Supply Officer I. In a decision dated May 4, 1987, DECS Secretary Lourdes R. Quisumbing sustained the protest of petitioner and revoked the appointment of private respondent as Supply Officer I thus: From the foregoing comparative statement of the qualifications of Mr. Aquino and Mrs. de la Paz, apparently the former has a decided advantage over the latter in terms of education, experience and training. Further examination of the comparative statement shows that Mrs. de la Paz has had no relevant in-service training course attended and completed. Accordingly, therefore, Mr. Aquino is preferred to Mrs. de la Paz for appointment as Supply Officer I. xxx xxx xxx Based on all the foregoing and as records further show that Mr. Aquino is competent and qualified to hold the subject position and possesses the eligibility requirement, this Office finds the instant protest meritorious and hereby rules and so rules that Mr. Aquino be appointed Supply Officer I in place of Mrs. de la Paz, whose appointment thereto is deemed revoked. (p. Annex "C", pp. 30-31, Rollo) Private respondent then filed her petition for reconsideration of the aforequoted DECS decision but the same was denied by Secretary Quisumbing in a Resolution dated August 11, 1967. On the bases of the aforementioned rulings of the DECS Secretary, petitioner Aquino was issued a permanent appointment dated August 11, 1987 as Supply Officer I by the DECS Regional Director Pedro San Vicente effective October 26, 1987. On the date of effectivity of his appointment, petitioner assumed the duties and functions of the position. The said appointment was approved by the Civil Service Regional Office IV on October 27, 1987. For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal with motion to maintainstatus quo to the Merit Systems Protection Board (MSPB) which, on February 5, 1988, rendered a decision upholding the appointment of Aquino as Supply Officer I (Annex "D", petition pp. 33-35, Rollo). From the decision of the MSPB, private respondent appealed to public respondent Civil Service Commission (CSC). In Resolution No, 88-820 dated November 7, 1988, public respondent CSC found the appeal of private respondent meritorious, thus revoking the appointment of petitioner Aquino and restoring private respondent de la Paz to her position as Supply Officer I, DECS, Division of San Pablo City under her previously approved appointment (Annex "B", petition, pp. 2629, Rollo).

From said decision, petitioner filed a motion for reconsideration with prayer for issuance of a temporary restraining order. Finding no merit to the motion for reconsideration filed by petitioner, public respondent CSC issued Resolution No. 90-224 dated February 27, 1990 denying said motion (Annex "A", petition, pp. 21- 24, Rollo). Hence, this petition seeking the reversal of public respondent Commission's action on petitioner's appointment. Two (2) interrelated issues on the extent of authority of the Civil Service Commission to pass upon the contested appointments were raised by petitioner which could be simplified into whether or not public respondent Civil Service Commission committed grave abuse of discretion in revoking the appointment of petitioner Victor A. Aquino as Supply Officer I in the DECS Division of San Pablo City as it found private respondent Leonarda de la Paz better qualified. In assailing the two (2) CSC Resolutions revoking his appointment, petitioner invokes the ruling of this Court in the case of Santiago v. Civil Service Commission, G.R. No. 81467, October 27, 1989, 178 SCRA 733 and Galura v.Civil Service Commission, G.R. 85812, June 1, 1989 (En Banc resolution) that the Civil Service Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position for that would have constituted an encroachment on the discretion vested solely in the appointing authority. The Civil Service Commission cannot exceed its power by substituting its will for that of the appointing authority. In support of petitioner's cause, the Solicitor General stresses the wide latitude of discretion given to the appointing authority in the selection and appointment of qualified persons to vacant positions in the civil service which was emphasized by the Court as rationale for the rule laid down in Luego v. Civil Service Commission, G.R. No. 69137, August 5, 1986, 143 SCRA 327, Central Bank v. CSC, G.R. No. 80455-56, April 10, 1989, 171 SCRA 744, Patagoc v. CSC, G.R. No. 90229, May 14, 1990, 185 SCRA 411, that public respondent CSC, not being the "appointing power" in contemplation of law, has no authority to revoke an appointment on the ground that another person is more qualified for a particular position and that the Commission has no authority to direct the appointment of a substitute of its choice. We have consistently applied the above doctrine in many cases with similar factual circumstances, but we see no compelling reason to apply the same in the instant case. In the cases cited above, We ruled that the Civil Service Commission has no authority to revoke an appointment simply because it (CSC) believed that another person is better qualified than the appointee for it would constitute an encroachment on the discretion solely vested on the appointing authority. The situation is different as in the instant case, where the Civil Service Commission revokedthe appointment of the successful protestant, petitioner herein, principally because the right to security of tenure of the prior appointee, private respondent herein, to the contested position had already attached (see CSC decision, pp. 28-29, Rollo). It must be noted that public respondent CSC did not direct the appointment of a substitute of its choice. It merely restored the appointment of private respondent who was first appointed to the contested position. The records show that private respondent was issued a permanent appointment on September 19, 1986 as Supply Officer I in the DECS Division of San Pablo City effective September 30, 1986. On the basis of the of said appointment which was approved by the Civil Service Regional Office No. IV, private respondent assumed and performed the duties

and functions of the position as Supply Officer I and received the compensation and benefits of the said position in accordance with the mandate of Section 9 par.(h) of the Civil Service Law (P.D. 807, as amended). In consonance with the doctrine laid down in Villanueva v. Balallo, G.R. No. L-17745, October 31, 1963, 9 SCRA 407, that an appointment is complete when the last act required of the appointing power has been performed, but later qualified in Favis v. Rupisan, G.R. No. L-22823, May 19, 1966, 17 SCRA 190, that the acts of the head of a department or office making the appointment and the Commissioner of Civil Service acting together, though not concurrently, but consecutively, are necessary to make an appointment complete, the permanent appointment extended to private respondent, under the circumstances of the case, is deemed complete. As such, she is entitled to the protection of the law against unjust removal. The conclusion of respondent Commission in the questioned decision that private respondent is more qualified than petitioner merely supports the validity of the restoration of private respondent to her previously approved appointment considering that she meets the prescribed qualification standards required of the position of Supply Officer I and the appropriate civil service eligibility, to wit: EDUCATION: Bachelor's degree with training in Supply Management EXPERIENCE: None required ELIGIBILITY: Supply Officer; Career Service (Professional) It is well-settled that 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 (Mitra v. Subido, G.R No. L-21691, September 15, 1967, 21 SCRA 127. There is also authority for the rule that when the appointing power has once acted and the appointee has accepted the office and done what is required of him upon its acceptance, his title to the office becomes complete, and he can then be removed only in the regular way (Mechem, Law of Public Offices and Officers, Sec. 461, p. 294, citing Marbury v. Madison, 1 Cranch (U.S.) 137). The appointing power can not effect his removal indirectly by rescinding or revoking his appointment after it is complete. There is thus reasonable ground for the rule that the moment the discretionary power of appointment has been exercised and the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority on the ground merely that the protestant is more qualified than the first appointee, subject however to the condition that the first appointee should possess the minimum qualifications required by law. Otherwise, the security of tenure guaranteed by Article IX-B, Section 2 par. (3) of the 1987 Constitution would be rendered meaningless if the appointing authority is allowed to flip-flop in exercising its discretionary power of appointment. While a protest is a made of action that may be availed of by the aggrieved party to contest the appointment made, the protest must be "for cause" or predicated on those grounds provided for under Section 19 par. (6) of the Civil Service Law (P.D. 807), namely: (1) that the appointee is not qualified; (2) that the appointee is not the next-in-rank; and (3) in case of appointment by transfer, reinstatement, or by original appointment, that the protestant is not satisfied with the written special reason or reasons given by the appointing authority.

We have defined the concept of "for cause" in connection with removal of public officers in the case of De los Santos v. Mallare, G.R. No. L-3881, August 31, 1950, 87 Phil. 289, as follows: "It means for reasons which the law and sound public policy recognized as sufficient warrant for removal, that is legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public." The ground relied upon by petitioner in his protest that he is more qualified than private respondent in terms of education, experience and training does not fall within the meaning of "for cause" contemplated by Article IX-B, Section 2 par. (3) of the 1987 Constitution which would warrant the revocation, if not removal, of the appointment of private respondent. Neither does it fall under the grounds of appeal contemplated under Section 19 par. (6) of the Civil Service Law (P.D. 807). Therefore, the protest of petitioner did not adversely affect the approval of the appointment of private respondent. Even on the assumption that the revocation of private respondent's appointment was validly exercised by DECS Secretary Quisumbing, still the appointment extended to petitioner was tainted with irregularity as it was issued before the finality of the decision on the protest in violation of CSC Resolution No. 83-343 which prohibits the issuance of an appointment to protestant (petitioner) if the protest case is not yet finally resolved, since there is no vacancy in the position pending resolution of the protest case. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appointment validly terminated (Costin v. Quimbo, G.R. No. L-32271, January 27, 1983, 120 SCRA 159). An appointment to an office which is not vacant is null and void ab initio (Morata v. Court of Appeals, G.R. No. L-18975, May 25, 1964, 11 SCRA 42). CSC Resolution No. 83-343 provides, thus: An appointment though contested shall take effect immediately upon issuance if the appointee assumes the duties of the position and (the) appointee is entitled to receive the salary attached to the position. Likewise such appointment shall become ineffective in case the protest is finally resolved in favor of the protestant, in which case the protestee shall be reverted to his former position. (p. 223,Rollo) Records reveal that the decision of the DECS Secretary revoking the appointment of private respondent was rendered on May 4, 1987 and the motion for reconsideration filed by private respondent was denied on August 11, 1987. The appointment issued to petitioner as Supply Officer I was dated August 11, 1987 and he assumed the position on October 26, 1987 (date of effectivity of his appointment) as reported by the Schools Division Superintendent of San Pablo City (pp. 77-78, Rollo). From all indications, the appointment of petitioner dated August 11, 1987 was issued with undue haste before the finality of the denial of the motion for reconsideration. While it is true that the appointing authority has a wide latitude of discretion in making his choice in the selection and appointment of qualified persons to vacant positions in the civil service, we cannot, however, give a stamp of approval to such a procedural irregularity in extending appointments, as in the instant case, to the prejudice of the right to security of tenure of the incumbent to the position.

ACCORDINGLY, the petition is DENIED. The decision dated May 4, 1987 and the resolution dated August 11, 1987 of the respondent Civil Service Commission are hereby AFFIRMED. The Secretary of the Department of Education, Culture and Sports is hereby directed to restore private respondent Leonarda de la Paz to her previously approved appointment as Supply Officer I, DECS, Division of San Pablo City. SO ORDERED. G.R. No. 79974 December 17, 1987

The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves. The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide. Section 16, Article VII of the 1987 Constitution says:

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs. SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor. PADILLA, J.: Once more the Court is called upon to delineate constitutional boundaries. 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 the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments. Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this suit. By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987. This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution. The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated inGold Creek Mining Corp. vs. Rodriguez, 1 that:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or 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. He shall also 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. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are: First, 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; 2 Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3 Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone. The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. 5 The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President with or without the consent (confirmation) of the

Commission on Appointments? 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 expressly stated in the first group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos: In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6 It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that xxx xxx xxx (3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. (4) The President shall havethe 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. xxx xxx xxx (7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers and consuls ... Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint. However, the Batasang Pambansa may by law vest in the Prime

Minister, members of the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their respective offices. Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices. 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. Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, 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 Commission on Appointments for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank. 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, read as follows: Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and 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. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis supplied]. The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames discussed on the floor of the Commission the proposed text 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. ThusMr. Rama: ... May I ask that Commissioner Monsod be recognized The President: We will call Commissioner Davide later. Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this morning.

xxx xxx xxx On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels. xxx xxx xxx 8 (Emphasis supplied.) In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 of the section from the same requirement. The records of the deliberations of the Constitutional Commission show the following: MR. ROMULO: I ask that Commissioner Foz be recognized THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words "and bureaus," and on line 28 of the same page, to change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et cetera. MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the words "and bureaus" on line 26. MR. FOZ: That is correct. MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a deletion? MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further confirmation of presidential appointment of heads of bureaus would subject them to political influence. MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as distinguished from staff directors who only stay in the office. MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors. xxx xxx xxx

MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President? MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation by the Commission on Appointments. MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro? MR. FOZ: Yes. MR. MAAMBONG: Thank you. THE PRESIDENT: Is this clear now? What is the reaction of the Committee? xxx xxx xxx MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote. MR. DE CASTRO: Thank you. MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on Appointment. Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . . . THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears none; the amendments is approved. xxx xxx xxx MR. ROMULO: Madam President. THE PRESIDENT: The Acting Floor Leader is recognized. THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.

MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments. MR. DAVIDE: Madam President. THE PRESIDENT: Commissioner Davide is recognized. xxx xxx xxx MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after "captain" we insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION? FR. BERNAS: It is a little vague. MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are vested in the President, as a matter of fact like those of the different constitutional commissions. FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments which constitutionally require confirmation of the Commission on Appointments, MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed. FR. BERNAS: Will Commissioner Davide restate his proposed amendment? MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION. FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS CONSTITUTION"? MR. DAVIDE: Yes, Madam President, that is modified by the Committee. FR. BERNAS: That will clarify things. THE PRESIDENT: Does the Committee accept? MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not require confirmation by the Commission on Appointments, like the members of the judiciary and the Ombudsman. MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas.

THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and Davide. xxx xxx xxx THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the amendment, as amended, is approved 10 (Emphasis supplied). 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. It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII readingHe (the President) shall also 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 . . . . (Emphasis supplied) with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on Appointments. Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said second sentence means that the President, in addition to nominating and, with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination by the President and appointment by the President with the consent of the Commission on Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of different language in two (2) sentences proximate to each other underscores a difference in message conveyed and perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences. 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. But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable effects thereof. Besides, 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. As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads: The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied]. and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the Commission on Appointments. The respondents, on the other hand, submit that the third sentence abovequoted, merely declares that, as to lower-ranked officers, the vest their appointment in the President, in the courts, or in the departments, agencies, commissions, or boards in the government. submitted for the use of the word "alone" in said third sentence. of Sec. 16, Article VII, Congress may by law heads of the various No reason however is

...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [Emphasis supplied]. The above provision in the 1935 Constitution appears immediately after the provision which makes practically all presidential appointments subject to confirmation by the Commission on Appointments, thus3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein provided for, and those whom he may be authorized by law to appoint; ... In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments, In the 1987 Constitution, however, as already pointed out, 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. Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments. Coming now to the immediate question before the Court, 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. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments.

The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII thereof

Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows: DIZON, J.: 601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed by the proper department head. Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows: Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines (Emphasis supplied.) Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs. After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments. Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the office and to receive all the salaries and emoluments pertaining thereto. WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs. SO ORDERED. G.R. No. L-20618 May 25, 1965

HERMENEGILDO R. ROSALES, petitioner, vs. FLAVIANO YENKO, respondent.

On July 26, 1958, former President Carlos P. Garcia appointed petitioner ad interim Chairman of the Board of Examiners for Chemists for a term expiring July 15, 1961. This appointment was submitted to, and was confirmed by, the Commission on Appointments and petitioner duly qualified and discharged the duties of the office. On July 16, 1961, petitioner was reappointed as Acting Chairman of the same Board. On November 6 of the same year, President Garcia signed petitioner's ad interim appointment to the same office for another term expiring on July 15, 1964. This ad interim appointment, however, was not released and delivered to petitioner, as conclusively indicated by the fact that the original thereof remained in the Office of the President. Respondent, however, admits that a copy thereof was transmitted to the Commission on Appointments on December 26, 1961, on the basis of which said Commission took cognizance of the appointment and confirmed it on May 17, 1962. Then on July 31, 1962, the Commissioner of Civil Service informed petitioner that his last ad interim appointment had been recalled, withdrawn, and declared without effect by virtue of Administrative Order No. 2, dated December 31, 1961, and on November 5, 1962, President Diosdado Macapagal appointed respondent Yenko as Acting Chairman of the Board of Examiners for Chemists, who thereafter assumed the functions and duties of said office. On December 14, 1962, petitioner filed the petition now before Us praying that we: 1. Declare null and void the designation of respondent as Acting Chairman of the Board of Examiners for Chemists; 2. Declare as valid, legal and subsisting petitioner's appointment as Chairman of the Board of Examiners for Chemist for a term expiring on July 15, 1964, which appointment has been duly confirmed by the Commission on Appointments; 3. By way of provisional remedy, issue a writ of preliminary injunction enjoining, restraining respondent from performing any act pursuant to his appointment aforementioned; 4. Permanently prohibit respondent from assuming said office and from performing any of the duties and obligations thereof during the term of office of petitioner; 5. Sentence respondent to pay for the costs of this suit; 6. Grant such other relief as may be deemed just and equitable under the premises. It will be noticed that the petition under consideration does not allege that the original of the last ad interim appointment was transmitted to, and was received by, petitioner obviously

because said original was never released by the Office of the President. Neither does it allege that, upon receipt thereof, petitioner had accepted the appointment and duly qualified for the position by taking the corresponding oath of office. In relation to the above matters, petitioner merely alleges that by virtue of his designation as Acting Chairman and later by virtue of the last ad interim appointment, "petitioner performed the duties and obligations of Chairman" of the Board of Examiners for Chemists and enjoyed all the rights and privileges appurtenant thereto. Further on this matter, in an affidavit attached to his memorandum as Annex A, petitioner could go no further than to state that on November 9, 1961, the then Acting Executive Secretary Edilberto Gallares notified him by telephone that his last ad interim appointment had already been signed by President Garcia and was ready for submission to the Commission on Appointments, and that on a subsequent social occasion in Malacaang President Garcia himself told him that his ad interim appointment had already been signed by him. These allegations are not sufficient to take the place of a clear allegation and proof that the ad interim appointment aforesaid was not only signed but was released to petitioner, and that by virtue thereof, he had accepted it and duly qualified for the position. We are of the opinion, therefore, that, on the basis of petitioner's own allegations, his last ad interim appointment was incomplete and that, as a result, there was in fact and in law no ad interim appointment that could be validly transmitted to, and acted upon by, the Commission on Appointments on May 17, 1962.1wph1.t WHEREFORE, petitioner having failed to allege and prove that he is rightfully entitled to the Office of Chairman of the Board of Examiners for Chemists, the petition under consideration is hereby dismissed, without costs. [G.R. No. 139251. August 29, 2002] MA. ERLY P. ERASMO, petitioner, CORPORATION, respondent. vs. HOME INSURANCE & GUARANTY

On February 24, 1993 petitioner 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.[10] In the meantime, petitioner appealed the status of her temporary appointment to the Civil Service Commission (CSC), which on March 12, 1993, issued Resolution No. 93-990, holding that a 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.[11] On June 10, 1993, respondent, through its President, Fernando M. Miranda, Jr., wrote petitioner, informing her that by operation of law, your appointment shall be deemed terminated and shall automatically cease to have further force and effect at the close of office hours on the expiration of your appointment. She was also advised that the pendency of the administrative case against her precludes any renewal of her appointment.[12] Petitioner, through counsel, then sought the opinion of the Executive Director of the Career Executive Service Board who, on August 31, 1993, replied that a temporary appointment to a CES position can be revoked at any time by the appointing authority, without waiting for a specific period to lapse; that the filing of an administrative case does not automatically revoke the appointment nor does it affect the validity of the temporary appointment; and that for the termination to be effective, there must be a categorical and/or positive act of termination of service.[13] Encouraged by said opinion, petitioner wrote respondent seeking reinstatement to her previous position with back wages, but her request was denied. She was also informed that the position that she vacated has already been filled up and approved by the CSC on a permanent basis.[14] When the investigating committee of the HIGC recommended the dismissal of the charges against petitioner on June 29, 1995,[15] the latter again wrote respondent asking that she be allowed to continue to discharge her duties and responsibilities as VP for TS/GCIG, alleging that respondent furnished her with a copy of the report of the investigation committee only eight (8) months thereafter. Again, respondent denied her demands.[16] One (1) year after, petitioner wrote the Chairperson of the CSC, appealing her case.[17] The CSC dismissed her appeal on February 3, 1998 per Resolution No. 980182. According to the CSC: (1) petitioner is not protected by the security of tenure clause under the Constitution because she was holding her position of Vice-President under a temporary status; (2) her appeal was filed beyond the 15-day reglementary period; and (3) the appointing authority cannot generally be compelled to issue an appointment. [18] On petition for review, the Court of Appeals affirmed the CSCs resolution and dismissed the petition for lack of merit.[19] Petitioner now comes before this Court alleging the following errors committed by the appellate court: I THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT A PERMANENT CIVIL SERVICE EMPLOYEE, LIKE THE PETITIONER WHO WORKED WITH RESPONDENT HIGC CONTINUOUSLY FOR TWELVE (12) YEARS HOLDING VARIOUS MANAGERIAL POSITIONS AND WHO ACCEPTED A PROMOTIONAL APPOINTMENT AS HIGCS VICE PRESIDENT OF TS/GCIG SUBJECT TO HER COMPLIANCE OF CIVIL

DECISION AUSTRIA-MARTINEZ, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court contesting the Decision of the Court of Appeals dated June 30, 1999 in CA-G.R. SP No. 47037 which affirmed the decision of the Civil Service Commission dismissing the appeal of petitioner Ma. Erly P. Erasmo and denying her request for reinstatement, payment of back wages and other benefits.[1] Petitioner started working with respondent Home Insurance & Guaranty Corporation (HIGC) in 1982 as a consultant on the Project Evaluation Department,[2] and held various positions therein, including Manager of Project Evaluation Department (April 1, 1982 to December 31, 1985),[3] Manager of Accounts Management (January 1, 1986 to April 1987),[4] Assistant Vice-President of Accounts Management (May 1987 to July 1988),[5] Manager II of Guaranty and Credit Insurance Department (August 1988 to March 15, 1992),[6] and Officer-in-Charge of Technical Service/Guaranty and Credit Insurance Group (TS/GCIG) (March 16 to June 14, 1992),[7] until finally, she was promoted to VicePresident of TS/GCIG on June 15, 1992.[8] 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. [9]

SERVICE ELIGIBILITY WHICH PETITIONER DULY COMPLIED WITH, IS STILL TERMINABLE AT THE PLEASURE AND DISCRETION OF THE APPOINTING POWER. II THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE APPROVAL OF THE PERMANENT APPOINTMENT OF PETITIONERS SUCCESSOR TO THE POSITION OF VICE PRESIDENT OF RESPONDENTS TS/GCIG AS PER BOARD RESOLUTION NO.55-1993 RATIFIED PETITIONERS SEPARATION FROM THE HIGC. III THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE DOCTRINE ENUNCIATED IN THE CASE OF ACHACOSO VS. MACARAIG, 195 SCRA 235 (MARCH 13, 1991) APPLIES TO PETITIONER. IV THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PETITIONER IS NOT ENTITLED TO BE REVERTED TO THE POSITION SHE WAS OCCUPYING PRIOR TO HER APPOINTMENT AS VICE PRESIDENT FOR TS/GCIG ON THE GROUND THAT HIGC HAS EXERCISED ITS PREROGATIVE IN RESPECT OF PETITIONERS TENURE BY NOT RENEWING HER TEMPORARY APPOINTMENT, AND HER CONTINUANCE IN HIGC SERVICE, BY NOT REAPPOINTING HER TO HER FORMER POSITION. V THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS APPEAL IN THE CIVIL SERVICE COMMISSION WAS FILED BEYOND THE REGLEMENTARY PERIOD.[20] The principal issue to be resolved in this case is whether or not petitioner is entitled to be reinstated to the position of Vice-President of TS/GCIG of respondent HIGC. We answer in the negative. The facts of this case indubitably show that petitioners promotional appointment as Vice-President of TS/GCIG is merely temporary in nature. Her appointment papers dated June 11, 1992 clearly indicate it.[21] 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,[22] and petitioner does not enjoy security of tenure. In the recent case of Matibag v. Benipayo, we reiterated the long standing ruling that a person who is issued a temporary appointment does not enjoy security of tenure, thus: As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig:

It is settled that 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 moments notice, conformably to established jurisprudence 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 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 [23] Petitioner maintains that we apply the ruling in Palmera v. Civil Service Commission, 235 SCRA 87 [1994], instead of Achacoso v. Macaraig, 195 SCRA 235 [1991].[24] This, however, is not possible. The Achacoso case, penned by Justice Isagani Cruz in 1991, laid down the jurisprudential basis in cases involving security of tenure in career executive service positions.[25] Simply put, it was ruled therein that a CES eligibility is required for a CES position, such that an appointment of one who does not possess such eligibility shall be temporary and may be withdrawn at will by the appointing authority and at a moments notice.[26] Thus, it was concluded that Achacoso, not being CES eligible, was merely holding a temporary appointment, and may be validly removed. His separation is termed as expiration of term. On the other hand, in the Palmera case, likewise penned by Justice Isagani Cruz, this time in 1994, it was inferred from the circumstances of the case that Palmera, who accepted a contractual appointment, had no intention of abandoning his permanent position and security of tenure. Having worked in the government for 34 years, it was held that by signing the contract, Palmera couldnt be reasonably supposed to have knowingly relinquished his permanent post and all its concomitant rights and benefits. Also, the petitioner was already getting on in years and could not afford to face an uncertain future without a regular and steady income. More importantly, Palmera was led to believe that the contract he signed was merely a subterfuge to provide legal basis for the payment of his salary for the period of January 1 to December 31, 1987, and he was not informed of the real objective of the contract. It was also ruled that the contract was void and cannot be the basis for the claim that Palmera abandoned his post.[27] The foregoing circumstances are not present in petitioners case. For one, it cannot be deduced that she 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. [28] And although she was formerly holding a permanent appointment, she accepted such temporary appointment. Having done so, petitioner had abandoned or given up her former position. When she accepted the temporary appointment, in effect, she abandoned her right to security of tenure as we have ruled in Romualdez v. Civil Service Commission, to wit: x x x This is not a case of removal from office. Indeed, when he accepted this temporary appointment he was thereby effectively divested of security of tenure. A temporary appointment does not give the appointee any definite tenure of office but makes it

dependent upon the pleasure of the appointing power. Thus, the matter of converting such a temporary appointment to a permanent one is addressed to the sound discretion of the appointing authority. Respondent CSC cannot direct the appointing authority to make such an appointment if it is not so disposed.[29] For another, the crucial fact remains --- petitioner does not possess the required CES eligibility to qualify her for the position. While the law allows in exceptional cases the appointment of a non-CES eligible provided that the appointee subsequently passes the CES Examinations,[30] petitioner is yet to completely pass and attain her CES eligibility. Clearly therefore, the Palmeracase is not applicable, and respondent cannot be compelled to reinstate petitioner. On the matter of whether or not petitioner may be reverted to her position previous to her appointment as VP for TS/GCIG, again, we must answer in the negative. Suffice it to say that the power of appointment is essentially discretionary and cannot be controlled, not even by the Court, as long as it is exercised properly by the appointing authority. [31] Finally, petitioner insists that she timely brought her case to the Civil Service Commission. According to her, her letter to the CSC was not an appeal but a petition seeking to implement the decision of the investigating committee. But whether her letter to the CSC was an appeal or a petition, the CSC nevertheless entertained and decided on her petition or appeal which decision we find to be without any reversible error. WHEREFORE, the petition for review on certiorari is hereby DENIED for lack of merit. SO ORDERED. [G.R. No. 78623 : December 17, 1990.] 192 SCRA 326 DR. OFELIA P. TRISTE, Petitioner, vs. LEYTE STATE COLLEGE BOARD OF TRUSTEES, namely: Hon. Lourdes R. Quisumbing, Secretary of the Department of Education, Culture and Sports and Chairman of the Board and/or Dr. Minda C. Sutaria as the authorized representative; Dr. Purificacion M. Flores, President of the Leyte State College and Vice-Chairman of the Board; Director Venancio Baclagon, National Economic and Development Authority, Regional Office No. VIII and Member of the Board; HON. SEDFREY A. ORDOEZ, Secretary of Justice and Chairman of the Review Committee under Executive Order No. 17; and DR. CRES V. CHAN-GONZAGA, Respondents.

shall be vested exclusively in the Board of Trustees and in the President of the College insofar as authorized by said Board". In addition to its general powers of administration, Section 6 provides that the Board shall have the power and duty: "(c) To appoint, on recommendation of the President of each College, a Vice-President for Academic Affairs and Development with a position next in rank to the President of the College who shall assist in the administration and supervision of the College and who shall automatically assume the presidency of the College in an acting capacity, with full powers and duties, in the absence of the President or when the office of the president is vacant." (Italics supplied) Under Section 9 of the same decree, the vice-president for academic affairs shall also be a member of the College Council which is vested with the powers to prescribe the curricula and the rules of discipline subject to the approval of the Board of Trustees; to fix the requirements for admission to the college as well as for graduation and the receiving of a degree; to recommend students or others to be the recipients of degrees or honors; and, through its president or committee, to have disciplinary control over the students within the prescribed rules of discipline approved by the Board of Trustees.: nad Two years later or on June 10, 1978, Presidential Decree No. 1437 (74 O.G. 5733-LLLLL Supp.) was promulgated to define the composition and powers of the governing boards of chartered state universities and colleges and the term of office of the presidents thereof. Said governing boards shall be composed of the Secretary of Education and Culture as chairman, the president of the university or college as vice-chairman, and a representative of the National Economic and Development Authority (NEDA) and two (2) prominent citizens as members. One of the governing board's specific powers as laid out in Section 3 of P.D. 1437 is the following: "f. To confirm appointments of vice-presidents, deans, directors, registrars, heads of departments, professors, and other officials and employees of the university or college made by the president, to fix their compensation, hours of service, and such other duties and conditions as the governing boards may promulgate, in accordance with the provisions of existing laws; to remove them for cause after investigation and hearing." (Emphasis supplied) Under the foregoing legal milieu, on February 3, 1984, the Leyte State College Board of Trustees (hereinafter referred to as the Board) took up the matter of the designation of herein petitioner as vice-president of the college with a basic salary of P39,288 plus representation and transportation allowances. It passed Resolution No. 53 "confirming the designation of Professor Ofelia TRISTE as vice-president of LSC to include allowances normally extended to the office of vice-president subject to the usual auditing and accounting regulations." 1 Accordingly, the acting chairman of the Board issued the following document: "Republic of the Philippines MINISTRY OF EDUCATION CULTURE AND SPORTS Metro Manila February 3, 1984 KNOW ALL MEN BY THESE PRESENTS: Pursuant to Section 6, paragraph "C" of PD 944 known as the LSC Charter, DR. OFELIA P. TRISTE is hereby designated/appointed Vice-President for Academic Affairs and Development of the Leyte State College, Tacloban City, Philippines.

DECISION FERNAN, J.: The instant petition for Certiorari focuses on the vice-presidency of the Leyte State College in Tacloban City. It seeks to annul and set aside the decision of the Board of Trustees of said College ousting and replacing herein petitioner with private respondent as VicePresident thereof, as well as the resolution of the Review Committee under Executive Order No. 17 dismissing petitioner's appeal thereto. The Leyte State College, formerly the Leyte Normal School, one of the eight normal schools established in the Philippines as a teacher-training institution serving Eastern Visayas, Masbate and Surigao, became a chartered state college by virtue of Presidential Decree No. 944 dated June 14, 1976 (72 O.G. 7207). Section 4 of the decree provides that "the governance and administration of each College and the exercise of its corporate powers

The Board of Trustees Leyte State College Tacloban City By: (SGD.) VEDASTO G. SUAREZ Acting Chairman" 2 As petitioner was then holding an appointment of Professor 6, the president of the college sought clarification from the Minister of the Budget on the total compensation of the vicepresident. The then Minister of Budget, Manuel S. Alba, in a letter dated June 22, 1984, opined that "(p)ursuant to Sections 4.1 and 4.4 of NCC No. 12-B, a Vice-President may be designated in lieu of a permanent plantilla position, provided that the designee's basic salary plus honorarium shall not exceed the salary prescribed for a permanently appointed VicePresident, as specified by NCC No. 12." Hence, the total compensation of petitioner should consist of the basic salary of P41,292 and an honorarium of P4,548 or the total amount of P45,840. In addition to that amount, the vice-president was authorized to receive commutable transportation and representation allowances of P475 per month subject to conditions stated therein. 3 In October, 1984, the Office of Compensation and Position Classification furnished the then President of the college, Magdalena S. Ramo, with an advance copy of the personnel services itemization of the college which would be the basis for the preparation of its plantilla of personnel for calendar year 1984. 4 The position of vice-president does not appear in said itemization. 5 However, per the college's plantilla of personnel for 1984, petitioner's position was designated and classified as "Professor 6 (Vice-Pres.)" receiving an actual salary of P54,600 as of June 30, 1984 but which salary was adjusted to P55,644 effective July 1, 1984. 6 For more than two years, petitioner discharged her duties and functions as vice-president of the college. In February 1986, there was a total revamp in the composition of the Board of Trustees of the Leyte State College. Among others, Dr. Purificacion M. Flores was designated officer-incharge and later appointed as the new College President vice Magdalena S. Remo who retired as president of the college on May 1, 1986. Anticipating moves to replace her as vice-president, on July 18, 1986, petitioner submitted to the Board of Trustees a position paper ** asserting that the Board could not appoint a vicepresident because the position was not vacant, the vice-president's term was not coterminous with that of the recommending president who had retired, and the incumbent was not replaceable at the pleasure of the Board. In fact, she stated therein that she is qualified for the college presidency. 7 Petitioner's apprehensions were proved right by later developments. She was not named to any of the committees formed by Dr. Flores when the latter became the officer-in-charge of the office of the president. 8 On August 21, 1986, petitioner received a letter from President Flores assigning her the job of director of the college's research program. 9 A week later, petitioner received another letter from President Flores. It states: "August 29, 1986 Dr. Ofelia P. Triste Leyte State College Tacloban City

Dear Dr. TRISTE: This is to inform you that Resolution No. 42, s. 1986 was approved by the Board of Trustees of the College at its Board Meeting last August 19, 1986 at MECS, Manila and confirmed August 27, 1986, to wit: RES. NO. 42, s. 1986 APPROVING THE DESIGNATION OF DR. CRES GONZAGA AS VICE-PRESIDENT OF THE LEYTE STATE COLLEGE EFFECTIVE AUGUST 19, 1986. APPROVED This information is intended to clarify actions taken by this office on designations. Very truly yours, (SGD.) PURIFICACION M. FLORES President" 10 Alleging that the appointment of Dr. Crescencia (Cres) V. Chan-Gonzaga to the position of vice-president in effect eased her out of said position, petitioner filed before the Board a petition for reconsideration. She contended that her constitutional and legal rights to security of tenure had been violated. 11 In response thereto, the Board Secretary informed petitioner's counsel through a letter dated October 29, 1986 that her petition was "noted and discussed" by the Board but that the members present at the meeting, namely, Dr. Minda Sutaria, Dr. Flores and Director Venancio Baclagon, arrived at the consensus that the position of vice-president being "honorific," the incumbent president of the college had the prerogative to recommend for the vice-presidency the nominee of the executive council. The letter added that the position being "considered co-terminous with that of the President of the college," pursuant to Executive Order No. 17, petitioner's services as vice-president were in effect terminated with the Board's approval of the appointment of Dr. Gonzaga to said position. 12 From November 26, 1986 to January 7, 1987, petitioner's counsel wrote three letters to the secretary of the Board and a letter to President Flores herself, all requesting for official copies of the board resolution terminating the services of petitioner as college vicepresident, the board resolution appointing Dr. Gonzaga as vice-president, and the board resolution or decision denying petitioner's petition for reconsideration, for the purpose of filing an appeal to the Minister of Justice. 13 Said letter-requests were unheeded.:-cralaw On January 12, 1987, petitioner interposed an appeal despite non-receipt of the requested documents, to the Review Committee of the Ministry of Justice which was organized to implement Executive Order No. 17 prescribing rules and regulations for the implementation of Section 2, Article III of the Freedom Constitution. She alleged therein that since her ouster as vice-president, she had been demoted to the position of Director of Research and that the 20% salary increase granted to all academic personnel of government schools was not given to her because under the plantilla approved by the Office of Budget and Management, her salary was reduced by one step since she was no longer the college vice-president. She argued that she was terminated and stripped of her rank and status without legal cause and due process; that the Board's claim that the position of vice-president is "honorific" is not supported by law; that said position is not co-terminous with the position of president not only because the charter is silent on the matter but also because the charter provides that a vice-president automatically assumes the presidency when it is vacant; and that the Board may not designate or appoint anyone to the position of vice-president as the same was not vacant.

The therein respondent Board not having filed any responsive pleading to the brief filed by petitioner before the Review Committee, she filed three successive motions for judgment on the pleadings. It turned out, however, that on January 23, 1987, the Review Committee *** had issued a resolution on petitioner's appeal but a copy of the same was furnished her through the mail only on March 31, 1987. 14 In said resolution, the Review Committee dismissed petitioner's petition on the ground that it was filed beyond the 10-day period provided for in Section 6 of Executive Order No. 17. 15 After her requests for certified copies of the designation of Dr. Gonzaga as vice-president and the board resolution denying her petition for reconsideration remained unacted upon, Dr. Ofelia P. TRISTE filed the instant petition for Certiorari. A preliminary point to consider is the propriety of the instant petition. Private respondent Gonzaga asserts that petitioner, not having appealed to the president, had not exhausted all administrative remedies available to her before she filed the instant judicial remedy. As we earlier held, exhaustion of administrative remedies is not an iron-clad rule. It is not necessary when, from the facts of the case, petitioner has to look to the courts for speedy relief; when the question presented is "purely a legal one," the controverted act is "patently illegal" and "nothing of an administrative nature is to be or can be done;" and when petitioner was denied due process. 16 Each of these exceptions may exempt the petitioner from the rule on exhaustion of administrative remedies before filing a court action. Considering that all these exceptions are present in this case, petitioner may avail herself of the instant remedy.:-cralaw Although the petition is captioned "petition for review on Certiorari" 17 thereby creating the impression that the same was filed under Rule 45 of the Rules of Court, we shall consider it as one for Certiorari under Rule 65 it having been alleged that the respondents have abused their discretion in their questioned actions. 18 The resolution of the issue on whether petitioner was illegally ousted from her position as vice-president of the Leyte State College hinges on the determination of her status as such official. Private respondent Dr. Gonzaga and public respondent Dr. Flores **** contend that petitioner was merely "designated" and not "appointed" to the college vice-presidency. They aver that petitioner's "designation" to said position was "purely an internal arrangement which does not require the approval or confirmation by the Civil Service Commission." 19 They maintain that petitioner's term of office being co-terminous with that of the retired college president, petitioner may not complain that she was illegally dismissed from the vicepresidency. On the other hand, petitioner asserts that she was the duly appointed vicepresident of the college and hence, her right to security of tenure may not be unceremoniously abridged. In Borromeo v. Mariano, 20 this Court, through Justice Malcolm, noted that "(a)ll authorities unite in saying that the term 'appoint' is well-known and whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual." We defined "appointment" in Aparri v. Court of Appeals 21 as the "act of designation by the executive officer, board or body, to whom that power has been delegated, of the individual who is to exercise the functions of a given office." On the other hand, there is jurisprudence to the effect that the word "designate," when used by the appointing power in making an appointment to office, is equivalent to the word "appoint." 22 Common usage, however, oftentimes puts a distinction between the terms "appointment" and designation". Perhaps, the reason for this is that the word "appointment" connotes permanency while "designation" implies temporariness. Thus, to "designate" a public officer to another position may mean to vest him with additional duties while he performs the functions of his permanent office. Or, in some cases, a public officer may be "designated" to

a position in an acting capacity as when an Undersecretary is designated to discharge the functions of a Secretary pending the appointment of a permanent Secretary. The provisions of Presidential Decrees Nos. 944 and 1437, specifically the aforequoted sections, contemplate of a duly appointed vice-president by the Board of Trustees, who would be a working vice-president with full powers and duties and whose compensation, hours of service and other duties and conditions of employment should be set by said Board. Thus, P.D. 1437 specifically provides among others, the following: "Section 3 . . . the governing board shall have the following specific powers and duties: x x x f. to confirm the appointments of vice-presidents, . . . in accordance with the provisions of existing laws; to remove them for cause after investigation and hearing." It appears that these provisions of law notwithstanding, it was not until February 3, 1984 that a Vice-President for Leyte State College was named with the designation of herein petitioner to said position. The mode of authorization was by "designation" inasmuch as the position of Vice-President did not appear in the College's Personnel Services Itemization for the year 1984. 23 This omission was, however, corrected in the Plantilla of Personnel and Salary Adjustment Form of the Leyte State College for the same calendar year 1984, which listed as Item No. 2-1 the position of "Professor 6 (Vice-President)." Herein petitioner was listed as the incumbent with an actual salary as of June 30, 1984 of P45,600.00 per annum and an adjusted salary effective July 1, 1984 per NCC #33 of P55,644.00 per annum. It is to be noted that the College Plantilla carried other Professor 6 items, i.e. Items Nos. 2-2, 2-4 and 2-5, with an actual salary of P43,392.00 per annum as of June 30, 1984 and an adjusted salary of P52,944.00 as of July 1, 1984. 24 Thereafter, on December 27, 1985, herein petitioner was extended an appointment as "Professor 6" . . . "with compensation at the rate of FIFTY FIVE THOUSAND SIX HUNDRED FORTY FOUR (55,644) ONLY pesos per annum effective July 01, 1984." The position to be filled was listed as "Old Item No. 2-1 Page 1 Approp. Act 230 Page CY 1983, New Item No. 2-1 Page 1 Approp. Act (illegible) CY 1984," which is equivalent to the item designated as "Professor 6 (Vice-President)" in the Plantilla of Personnel for 1984. Said appointment was issued "By authority of the Board of Trustees" and approved by the Civil Service Commission as permanent. 25 From the foregoing, it becomes clear that while initially petitioner was discharging the powers and functions of Vice-President upon a designation made on February 3, 1984, by July 1 of the same year, she was doing so by virtue of an appointment. For while her appointment paper mentioned only "Professor 6" as the position to which she was being appointed, the clear intent to appoint her "Professor 6 (Vice-President)," as distinguished from the other Professor 6 items is manifest from the rate of compensation and Item Number specifically given in the appointment paper. Moreover, there appears no reason why she should be given another appointment to the position of Professor 6 if the intention was for her to remain merely as Professor 6. The only plausible explanation is that it was an appointment to a new item of Vice-President. And as adverted to earlier, said appointment was approved by the Civil Service Commission as permanent.- nad Although under Section 8 of P.D. 1437, the term of a state college president is six (6) years, the same law is silent as to that of the vice-president. Such silence, however, should not be interpreted to mean that the law intends to give the vice-president the same term as that of a president. On the contrary, there are indications in the decrees themselves that the vicepresident is a career official whose term of office may outlast that of the president. Thus, under Section 6(c) of P.D. 944, the vice-president is next in ranks to the president. He or she

shall assist the president in the administration and supervision of the college. He or she shall "assume the presidency of the College in an acting capacity, with full powers and duties in the absence or when the office of the president is vacant." Whoever is holding the position of vice-president shall remain as such until, under Section 3(f) of P.D. 1437 above-quoted, the Board finds a reason or reasons to remove him "for cause after investigation and hearing." The contention of respondents Gonzaga and Flores that petitioner was not a permanently appointed vice-president since she was merely receiving an honorarium for the job, is likewise without merit. Under the same Section 3(f) of P.D. 1437, the Board has the power to fix the compensation of the vice-president. Accordingly, during its meeting on February 3, 1984, the Board set petitioner's basic salary as vice-president at P39,288 plus representation and transportation allowances. However, since petitioner was then holding an appointment as Professor 6, the then college president sought the aforestated opinion of the Minister of Budget granting petitioner an honorarium of P4,548. Such inquiry, it must be noted, was done in connection with Resolution No. 5, s. 1984, or while petitioner was discharging the functions of Vice-President upon a designation. In contrast, her compensation as Professor 6 (Vice-President) was specifically stated in her appointment paper. The allegation of private respondents that petitioner was receiving only an honorarium and not a regular salary as Vice-President is therefore true only for the period February 3 to June 30, 1984. Thereafter, by virtue of her appointment, petitioner began receiving a compensation of P55,644.00 per annum as Professor 6 (Vice-President). Mechem states that "(l)ike the requirement of an oath, the fact of the payment of a salary and/or fees may aid in determining the nature of a position, but it is not conclusive, for while a salary or fees are usually annexed to the office, it is not necessarily so. As in the case of the oath, the salary or fees are mere incidents and form no part of the office. Where a salary or fees are annexed, the office is often said to be coupled with an interest; where neither is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good." 26 In the case at bar, petitioner having been given the compensation attached to the Item Professor 6 (Vice-President) as distinguished from the other Professor 6 items which carried a lower salary, we hold that her appointment dated December 27, 1985, but retroactive to July 1, 1984 was in truth and in fact to the position of Vice-President, rather than to the position of Professor 6. This case should be distinguished from Laxamana v. Borlaza 27 wherein we held that petitioner was legally removed because she was merely designated as Director of Publications and not by permanent appointment since there was no position in the college plantilla to which a permanent appointment could be made. In said case, there was no statutory basis for the inclusion of the position of Director of Publications in the plantilla of the college as it was merely created by the Board. In the instant case, the position of vicepresident is based on a presidential decree which has the force and effect of law. But because said position was omitted in the personnel services itemization, the college could do no more than classify petitioner's position as "Professor 6 (Vice-Pres.)" The nature of petitioner's appointment having been established, we now consider the legality of her replacement as vice-president of the Leyte State College.:-cralaw Executive Order No. 17 was issued by the President on May 28, 1986 "to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the career civil service" (82 O.G. 2423-2424). Section 1 thereof provides that separation or replacement of officers and employees shall be made "only for justifiable reasons". For its purposes, a state college is considered a ministry. Pertinent provisions of the Order state: "Sec. 2. The Ministry Head concerned, on the basis of such review and assessment, shall determine who shall be separated from the service. Thereafter, he shall issue to the official

or employee concerned a notice of separation which shall indicate therein the reason/s or ground/s for such separation and the fact that the separated official or employee has the right to file a petition for reconsideration pursuant to this Order. Separation from the service shall be effective upon receipt of such notice, either personally by the official or employee concerned or on his behalf by a person of sufficient discretion. "SEC. 3. The following shall be the grounds for separation/replacement of personnel: 1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; 2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned; 3) Gross incompetence or inefficiency in the discharge of functions; 4) Misuse of public office for partisan political purposes; 5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service." (Emphasis supplied) Petitioner learned of her removal as vice-president when it was already a fait accompli. Hence, all she could do under the circumstances was to petition for the reconsideration of the Board resolution designating respondent Gonzaga as her replacement and at the same time asserting her constitutional right to security of tenure. The Board's "noting" of her petition is not a valid exercise of its power. 28 Although the Board Secretary's letter stating that the petition for reconsideration was noted and discussed by the Board, the latter's reason for replacing petitioner, to wit, the position of vice-president is "honorific" and co-terminous with that of the college president is not within the purview of Section 3 aforequoted.- nad Furthermore, respondent Flores and the Board had not complied with the procedure set forth in Section 2 of Executive Order No. 17. They did not serve the notice of separation specified therein. In fact, the cavalier manner by which petitioner was dislodged from the vice-presidency was matched by the college officials' refusal to furnish petitioner with copies of the documents pertinent to her appeal. Even if respondent Gonzaga's unsubstantial allegations on petitioner's association with the Romualdezes of Leyte 29 were true, certainly, it is not within the spirit of Executive Order No. 17 to brush aside its due process requirements just to implement its ultimate purpose which is to rid the government of misfits. On top of these, the review committee seems to have been too technical in treating petitioner's appeal. Its denial of petitioner's plea for reconsideration on the ground that the 10-day period specified in Section 6 of said order had lapsed is tantamount to abuse of discretion it appearing that said period had not commenced to run. We agree with the Solicitor General that the letters embodying the resolutions replacing petitioner as vicepresident, do not, in legal contemplation, constitute the notice of separation from which an appeal could be made. 30 The existence of said resolutions should have been established by official or certified true copies but unfortunately, respondent Flores herself and the Board secretary failed to heed petitioner's requests for them. WHEREFORE, the petition for Certiorari is GRANTED and the IMMEDIATE REINSTATEMENT of petitioner with backwages to the position of vice-president of the Leyte State College is hereby ordered. No costs. SO ORDERED.