[A.M. No. P-94-1067. January 30, 1997] CONCERNED CITIZENS OF LAOAG CITY, complainants, vs.

BIENVENIDO ARZAGA and ALFREDO MAURICIO, respondents. DECISION PER CURIAM: This administrative matter arose from two (2) anonymous letters, one dated April 21, 1994 addressed to Judge Federico A. Llanes, MTCC, Branch I, Laoag City and the other dated April 27, 1994 addressed to Judge Manuel B. Fernandez, Jr., RTC, Branch 13, Laoag City, charging Bienvenido Arzaga and Alfredo Mauricio, both process servers of the Office of the Clerk of Court, MTCC, Laoag City, with influence peddling, drunkenness, gambling, bribery, extortion and manipulation of bonds by using the same property for different cases. On June 22, 1994, Judge Llanes forwarded the said letters, together with the respondents' comments, to the Office of the Court Administrator. In a resolution dated September 19, 1994, this Court referred the matter to Executive Judge Wenceslao Agnir, RTC, Laoag City, for investigation, report and recommendation. In his investigation report dated December 16, 1994, Judge Agnir stated, among others, that both respondents had submitted their written comments denying the charges; that upon receipt of the complaint, he requested the local media to announce to the public that anyone who had evidence against the two respondents could see him; that however, after two months of waiting, nobody came forward to offer any evidence against respondents; that he also interviewed the employees of the City Court to verify the truth of the charges against the respondents, but he obtained no information to give credence to said charges. Judge Agnir, however, reported that he received a certification from the City Prosecutor's Office of Laoag City, to the effect that Alfredo Mauricio was convicted of Frustrated Murder on September 29, 1983 in Criminal Case No. 1260-XIII, but was placed on probation. Alfredo Mauricio had also been charged with eleven (11) other criminal cases like Illegal Possession of Firearms, Grave Slander by Deed, Grave Threats, Serious Physical Injuries, but all of these had been dismissed. Judge Agnir made no definite recommendation in his report, except to say that he was leaving it to the Court Administrator to determine whether on the basis of "such a criminal record, Alfredo 'Boy' Mauricio deserves to stay in the service of the Judiciary." On February 1, 1995, this Court referred the Investigation Report of Judge Agnir to the Office of the Court Administrator for evaluation, report and recommendation. Accordingly, the Office of the Court Administrator submitted a memorandum to this Court recommending that the charges against the two respondents be dismissed for lack of merit. After a careful examination of the recommendation of the Office of the Court Administrator, this Court on May 29, 1995, resolved to dismiss the charges against Benjamin Arzaga as recommended but referred the case against Alfredo Mauricio to Judge Agnir for further investigation relative to how said respondent managed to be appointed to the position of process server despite a previous record of conviction of the crime of frustrated murder. Judge Agnir was likewise directed to conduct an inquiry on whether said respondent made untruthful statements in his application by suppressing the fact of his conviction as well as other criminal charges filed against him though subsequently dismissed. In compliance with the aforementioned resolution, Judge Agnir submitted his second investigation report dated July 21, 1995. In his report, Judge Agnir narrated that respondent Mauricio joined the judiciary on October 4, 1990 as Utility Worker I of MTCC, Branch 2, Laoag City. His commission was signed by then Court Administrator Meynardo A. Tiro and certified by Chief Administrative Officer Adelaida Cabe-Baumann upon recommendation of Judge Manuel B. Fernandez, Jr., then presiding judge of Branch 2, RTC, Laoag City. On May 5, 1992, respondent was promoted to the position of process server of the Office of the Clerk of Court, MTCC, Laoag City. His commission was signed by Romeo P. de Leon in behalf of Adelaida Cabe-Baumann. Judge Agnir further narrated that respondent disclosed his conviction of the crime of frustrated murder and that he was on probation for the same in his application. When respondent was asked by Judge Agnir why he did not indicate that other criminal charges were filed against him, he replied that the question in the application form simply asked for conviction, not mere charges. The Second Investigation Report also mentioned the name of two (2) persons from whom respondent Mauricio allegedly asked favors using the name of Judge Fernandez. The first was Jimmy Lao, a realtor-businessman of Laoag City who told Judge Agnir that two (2) years earlier when he had a case pending before the sala of Judge Fernandez, respondent Mauricio

approached him and asked for two (2) tires allegedly for the car of Judge Fernandez. Mr. Lao said that when he went to verify the request, he was not able to talk to Judge Fernandez but a court staff member told him that Judge Fernandez was not in the habit of asking favors from litigants and that in all probability, the tires were intended for Mauricio's owner-type jeep which was then in the process of being assembled. When he confronted Mauricio about it, the latter told him that he (Mauricio) was only joking. The second interviewee was German Reantillo, administrative officer of the City Engineer's Office of Laoag City who confirmed that sometime ago he gave Mauricio thirty (30) liters of gasoline on the respondent's representation that this was for Judge Fernandez; that sometime later he had the occasion to mention the matter to Judge Fernandez who denied that he authorized Mauricio to ask gasoline in his behalf. Both Lao and Reantillo however refused to be placed under oath or to reduce their statements in writing because they did not wish to be involved in a formal investigation where they would have to be confronted by respondent. Furthermore Lao said he did not wish to incur the ire of the respondent and that anyway he did not give Mauricio the tires. On July 17, 1995, Judge Agnir called respondent Mauricio to another hearing and confronted him with these new charges. Respondent denied them as expected. Judge Agnir further claimed that respondent is known to be a troublesome fellow. MTC Judge Llanes even had to file an administrative case against respondent for serious misconduct and insubordination. Judge Agnir then strongly recommended the immediate and summary dismissal from the service of respondent Mauricio for being the "ultimate undesirable employee and a disgrace to the judiciary." He added that he was recommending this course of action aware of the potential danger to his person given respondent's violent nature as documented by his criminal record. Judge Agnir was "hopeful though that the respondent's summary dismissal will send a chilling message to other court employees similarly engaged in nefarious activities and unethical practices which though petty in many instances indelibly stain the image of the judiciary. Thereafter, the case was referred to the Office of the Court Administrator for evaluation, report and recommendation. The Deputy Court Administrator to whom the case was assigned for review submitted the following observations, viz: A careful scrutiny of the 201 File of respondent Mauricio shows that he joined the judiciary not on 4 October 1990 as Utility Worker I but on 1 August 1989 as a Court Aide of MTCC, Branch 2 of Laoag City as a recommendee of Judge Angelo M. Albano, MTCC, Laoag City. Respondent's appointment was by virtue of a Supreme Court Resolution dated 1 August 1989 and his commission was signed by then Court Administrator Meynardo A. Tiro and certified by Former Assistant Chief Administrative Officer Orlando B. Carino and Former Chairman of the Selection Board Daniel T Martinez. It was also discovered that on 24 January 1990 Atty. Carino sent a telegram to Mauricio ordering him to submit a copy of the Order placing him on probation pending the approval of his appointment as Utility Worker I. Accordingly respondent sent a copy of the said Order and in his 1st indorsement dated 22 February 1990, Atty. Carino referred the Probation Order to Atty. Ponciano R. Solosa, Assistant Director of the Civil Service Commission Field Office for appropriate action. Per Court Resolution dated 4 October 1990 respondent was appointed as Utility Worker I and was promoted as Process Server by virtue of a Court Resolution of 5 May 1992. On 19 January 1993 Police Inspector Felizardo Ellano of the PNP-CIS Command in Camp Capt. Valentin San Juan, Laoag City, sent a letter addressed to the Chief Justice through the Record Section requesting that a check be conducted on the records of Mauricio who was at that time being charged by their Office with the crimes of Less Serious Physical Injuries and Resistance and Disobedience Upon Agents of a Person in Authority. Police Officer Ellano likewise informed the Court that the respondent has already been charged of several offenses in different courts in Laoag City which according to him was a clear showing that Mauricio is a violent man, a habitual offender and extremely defiant of the law. Records show that the respondent twice accomplished Personal Data Sheet (Civil Service Commission Form 212, Revised 1982) on two (2) separate occasions: on 5 June 1989 before his appointment as Court Aide and on 13 September 1990 prior to his appointment as Utility Worker. In both instances, Mauricio disclosed his conviction of Frustrated Murder and the fact that he was on probation. The charges against respondent Mauricio for influence peddling, drunkenness, gambling, bribery, extortion and manipulation of bonds by using the same property for different cases do not appear to have been sufficiently established by clear evidence. The two (2) persons from whom the respondent allegedly asked favors using the name of Judge Fernandez both refused to be placed under oath or reduce their statements in writing. But administrative charges cannot be based on mere conjecture. The

complainant has the burden of proof and such proof must be clear, solid and convincing to compel the exercise of disciplinary power over the person indicted. On respondent's conviction of Frustrated Murder, there was full disclosure of the conviction and apparently was not a legal obstacle to respondent's appointment because he was placed on probation. Therefore, respondent's conviction of a crime should not be taken as a basis of any administrative action against him. The foregoing notwithstanding we do not see any reason to disturb the Investigating Judge's finding that respondent is a troublesome and violent person as shown by his criminal record certified by the City Prosecutor of Laoag City. There is therefore merit in Judge Agnir's recommendation of immediate and summary dismissal of the respondent from the service for being the "ultimate undesirable employee and a disgrace to the judiciary." It is commendable that Judge Agnir has opted to resist the temptation to be silent in the face of what he perceives to be a deleterious influence in the court. Under Section 23, Rule 14 of the Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws "being notoriously undesirable" is classified as a grave offense with a corresponding penalty of dismissal, or forced resignation under Resolution No. 89-506 dated 20 July 1989 of the Civil Service Commission. Time and again the Court has held that "A court employee being a public servant must exhibit the highest sense of honesty and integrity not only in the performance of his duties but also in his personal and private dealings with other people to preserve the court's name and standing. Therefore, it becomes imperative and sacred duty of each and everyone in the court to maintain its good name and standing as a true temple of justice." (Paredes vs. Padua, 222 SCRA 81). Equally compelling is the decision of the Court in the case of Mirano vs. Saavedra, 225 SCRA 77 which states that "The conduct and behavior of everyone connected with the office charged with the dispensation of justice from the presiding judge to the lowliest clerk should be circumscribed with the heavy burden of responsibility." On the foregoing antecedents, it was recommended by the Deputy Court Administrator that respondent be declared notoriously undesirable and be considered resigned from the service with forfeiture of leave credits and retirement benefits and disqualification from employment in the government service for a period of one (1) year. It was further recommended, however, that respondent be reemployed in the government service other than the judiciary. In reviewing the aforesaid report and recommendation submitted for the Court's consideration, we find the foregoing observations to be correct. We, nonetheless, find the penalty recommended by the Office of the Court Administrator to be very light. Consequently, we adopt the investigating judge's recommendation for respondent's dismissal from the service, the same being warranted and justified by the facts attendant to the instant case. Public service requires the utmost integrity and strictest discipline. Thus, a public servant must exhibit at all times the highest sense of honesty and integrity not only in the performance of his official duties but in his personal and private dealings with other people. No less than the Constitution sanctifies the principle that a public office is a public trust, and enjoins all public officers and employees to serve with the highest degree of responsibility, integrity, loyalty, and efficiency.In addition, the Code of Conduct and Ethical Standards for Public Officials and Employees provide that every public servant shall at all times uphold public interest over his or her personal interest. By his acts and misdeeds, respondent has undermined the public's faith in our courts and, ultimately, in the administration of justice. The same make him unfit as a court employee. His employment must therefore be terminated at once. Court personnel must adhere to the high ethical standards of public service in order to preserve the Court's good name and standing. Time and again, this Court has emphasized that the conduct required of court personnel, from the presiding judge to the lowliest clerk, must always be beyond reproach and must be circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the judiciary. ACCORDINGLY, respondent ALFREDO MAURICIO is hereby DISMISSED from the service with forfeiture of all benefits and with prejudice to his reemployment in any branch of the Government, including government-owned or controlled corporations. SO ORDERED.

G.R. No. 116418 March 7, 1995

SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners, vs. HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA, Commissioner, Civil Service Commission, respondents. FELICIANO, J.: In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a Temporary Restraining Order, petitioners Salvador C. Fernandez and Anicia M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service Commission ("Commission") and the authority of the Commission to issue the same. Petitioner Fernandez was serving as Director of the Office of Personnel Inspection and Audit ("OPIA") while petitioner de Lima was serving as Director of the Office of the Personnel Relations ("OPR"), both at the Central Office of the Civil Service Commission in Quezon City, Metropolitan Manila. While petitioners were so serving, Resolution No. 94-3710 signed by public respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively, of the Commission, was issued on 7 June 1994. 1 Resolution No. 94-3710 needs to be quoted in full: RESOLUTION NO. 94-3710 WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". . . as an independent constitutional body, the Commission may effect changes in the organization as the need arises;" WHEREAS, the Commission finds it imperative to effect changes in the organization to streamline its operations and improve delivery of public service; WHEREAS, the Commission finds it necessary to immediately effect changes in the organization of the Central Offices in view of the need to implement new programs in lieu of those functions which were transferred to the Regional Offices; WHEREFORE, foregoing premises considered, the Commission hereby RESOLVES to effect the following changes in its organization, specifically in the Central Offices: 1. The OCSS [Office of Career Systems and Standards], OPIA [Office of Personnel Inspection and Audit] and OPR [Office of Personnel Relations] are merged to form the Research and Development Office (RDO). 2. The Office for Human Resource Development (OHRD) is renamed Human Resource Development Office (HRDO). 3. The following functions and the personnel assigned to the unit performing said functions are hereby transferred to HRDO: a. Administration of the Honor and Awards program under OCSS; b. Registration and Accreditation of Unions under OPR; and c. Accreditation of Agencies to take final action on appointments under OPIA. 4. The Office for Central Personnel Records (OCPR) is renamed Management Information Office (MIO). 5. The Information technology functions of OPM and the personnel assigned to the unit are transferred to MIO. 6. The following functions of OPM and the personnel assigned to the unit performing said functions are hereby transferred to the Office of the Executive Director: a. Financial Audit and Evaluation;

b. Internal Management and Improvement; c. Research and Statistics; and d. Planning and Programming. 7. The library service and its personnel under OCPR are transferred to the Central Administrative Office. 8. The budget allocated for the various functions shall be transferred to the Offices where the functions are transferred. Records, fixtures and equipment that go with the functions shall be moved to where the functions are transferred. Annex A contains the manning list for all the offices, except the OCES. The changes in the organization and in operations shall take place before end of July 1994. Done in Quezon City, July 07, 1994. (Signed) Patricia A. Sto. Tomas Chairman (Signed) Did not participate Ramon P. Ereneta, Jr., Thelma P. Gaminde Commissioner Commissioner Attested by: (Signed) Carmencita Giselle B. Dayson Board Secretary V 2 During the general assembly of officers and employees of the Commission held in the morning of 28 July 1994, Chairman Sto. Tomas, when apprised of objections of petitioners, expressed the determination of the Commission to implement Resolution No. 94-3710 unless restrained by higher authority. Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the Court required public respondents to file a Comment on the Petition. On 21 September 1994, petitioners filed an Urgent Motion for Issuance of a Temporary Restraining Order, alleging that petitioners had received Office Orders from the Commission assigning petitioner Fernandez to Region V at Legaspi City and petitioner de Lima to Region III in San Fernando, Pampanga and praying that public respondents be restrained from enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994, granted this Motion and issued the Temporary Restraining Order prayed for by petitioners. The Commission filed its own Comment, dated 12 September 1994, on the Petition and then moved to lift the Temporary Restraining Order. The Office of the Solicitor General filed a separate Comment dated 28 November 1994, defending the validity of Resolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed separate Replies to these Comments. The Commission in turn filed a Rejoinder (denominated "Comment [on] the Reply"). The principal issues raised in this Petition are the following: (1) Whether or not the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the extent it merged the OCSS [Office of Career Systems and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research and Development Office]; and (2) Whether or not Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure. I. The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July 1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure and organization of the Commission in the following terms: Sec. 16. Offices in the Commission The Commission shall have the following offices:

(1) The Office of the Executive Director . . . (2) The Merit System Protection Board . . . (3) The Office of Legal Affairs . . . (4) The Office of Planning and Management . . . (5) The Central Administrative Office . . . (6) The Office of Central Personnel Records . . . (7) The Office of Position Classification and Compensation . . . (8) The Office of Recruitment, Examination and Placement . . . (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 benefits and awards. (10) The Office of Human Resource Development . . . (11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and regulations for the effective conduct of inspection and audit of 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 governing corporate officials and employees in the areas of recruitment, examination, placement, career development, merit and awards systems, position classification and compensation, performance appraisal, employee welfare and benefits, discipline and other aspects of personnel management on the basis of comparable industry practices. (13) The Office of the Corporate Affairs . . . (14) The Office of Retirement Administration . . . (15) The Regional and Field Offices. . . . (Emphases in the original) Immediately after the foregoing listing of offices of the Commission and their respective functions, the 1987 Revised Administrative Code goes on to provide as follows: Sec. 17. Organizational Structure. Each office of the Commission shall be headed by a Director with at least one (1) Assistant Director, and may have such divisions as are necessary to carry out their respective functions. As an independent constitutional body, the Commission may effect chances in the organization as the need arises. xxx xxx xxx 3 (Emphasis supplied) Examination of the foregoing statutory provisions reveals that the OCSS, OPIA and OPR, and as well each of the other Offices listed in Section 16 above, consist of aggregations of Divisions, each of which Divisions is in turn a grouping of Sections. Each Section, Division and Office comprises a group of positions within the agency called the Civil Service Commission, each group being entrusted with a more or less definable function or functions. These functions are related to one another, each of them being embraced by a common or general subject matter. Clearly, each Office is an internal department or organizational unit within the Commission and that accordingly, the OCSS, OPIA and OPR, as well as all the other Offices within the Commission constitute administrative subdivisions of the CSC. Put a little differently, these offices relate to the internal structure of the Commission. What did Resolution No. 94-3710 of the Commission do? Examination of Resolution No. 94-3710 shows that thereby the Commission re-arranged some of the administrative units (i.e., Offices) within the Commission and, among other things, merged three (3) of them (OCSS, OPIA and OPR) to form a new grouping called the "Research and Development Office (RDO)." The same Resolution renamed some of the Offices of the Commission, e.g., the Office for Human Resource Development (OHRD) was renamed Human Resource Development Office (HRDO); the Office for Central Personnel Records (OCPR) was renamed Management Information Office (MIO). The Commission also re-allocated certain

functions moving some functions from one Office to another; e.g., the information technology function of OPM (Office of Planning and Management) was transferred to the newly named Management Information Office (MIO). This re-allocation or re-assignment of some functions carried with it the transfer of the budget earmarked for such function to the Office where the function was transferred. Moreover, the personnel, records, fixtures and equipment that were devoted to the carrying out of such functions were moved to the Offices to where the functions were transferred. The objectives sought by the Commission in enacting Resolution No. 94-3710 were described in that Resolution in broad terms as "effect[ing] changes in the organization to streamline [the Commission's] operations and improve delivery of service." These changes in internal organization were rendered necessary by, on the one hand, the decentralization and devolution of the Commission's functions effected by the creation of fourteen (14) Regional Offices and ninety-five (95) Field Offices of the Commission throughout the country, to the end that the Commission and its staff may be brought closer physically to the government employees that they are mandated to serve. In the past, its functions had been centralized in the Head Office of the Commission in Metropolitan Manila and Civil Service employees all over the country were compelled to come to Manila for the carrying out of personnel transactions. Upon the other hand, the dispersal of the functions of the Commission to the Regional Offices and the Field Offices attached to various governmental agencies throughout the country makes possible the implementation of new programs of the Commission at its Central Office in Metropolitan Manila. The Commission's Office Order assigning petitioner de Lima to the CSC Regional Office No. 3 was precipitated by the incumbent Regional Director filing an application for retirement, thus generating a need to find a replacement for him. Petitioner de Lima was being assigned to that Regional Office while the incumbent Regional Director was still there to facilitate her take over of the duties and functions of the incumbent Director. Petitioner de Lima's prior experience as a labor lawyer was also a factor in her assignment to Regional Office No. 3 where public sector unions have been very active. Petitioner Fernandez's assignment to the CSC Regional Office No. 5 had, upon the other hand, been necessitated by the fact that the then incumbent Director in Region V was under investigation and needed to be transferred immediately to the Central Office. Petitioner Fernandez was deemed the most likely designee for Director of Regional Office No. 5 considering that the functions previously assigned to him had been substantially devolved to the Regional Offices such that his reassignment to a Regional Office would result in the least disruption of the operations of the Central Office. 4 It thus appears to the Court that the Commission was moved by quite legitimate considerations of administrative efficiency and convenience in promulgating and implementing its Resolution No. 94-3710 and in assigning petitioner Salvador C. Fernandez to the Regional Office of the Commission in Region V in Legaspi City and petitioner Anicia M. de Lima to the Commission's Regional Office in Region III in San Fernando, Pampanga. It is also clear to the Court that the changes introduced and formalized through Resolution No. 94-3710 re-naming of existing Offices; re-arrangement of the groupings of Divisions and Sections composing particular Offices; re-allocation of existing functions (and related personnel; budget, etc.) among the re-arranged Offices are precisely the kind of internal changes which are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised Administrative Code), quoted above, as "chances in the organization" of the Commission. Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices, something which may be done only by the same legislative authority which had created those public offices in the first place. The Court is unable, in the circumstances of this case, to accept this argument. The term "public office" is frequently used to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public. 5 We consider that Resolution No. 94-3710 has not abolished any public office as that term is used in the law of public officers. 6 It is essential to note that none of the "changes in organization" introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of the relationship of public employment between the Commission and any of its officers and employees. We find it very difficult to suppose that the 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of the Civil Service Commission, meant to freeze those Offices and to cast in concrete, as it were, the internal organization of the commission until it might please Congress to change such internal organization regardless of the ever changing needs of the Civil Service as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry out "changes in the organization," as the need [for such changes] arises." 7 Assuming, for purposes of argument merely, that legislative authority was necessary to carry out the kinds off changes contemplated in Resolution No. 94-3710 (and the Court is not saying that such authority is necessary), such legislative authority was validly delegated to the Commission by Section 17 earlier quoted. The legislative standards to be observed and respected in the exercise of such delegated authority are set out not only in Section 17 itself (i.e., "as the need arises"), but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative Code which required the Civil Service Commission

as the central personnel agency of the Government [to] establish a career service, adopt measures to promote efficiency [and] responsiveness . . . in the civil service . . . and that personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and agencies where such functions can be effectively performed. (Emphasis supplied) II. We turn to the second claim of petitioners that their right to security of tenure was breached by the respondents in promulgating Resolution No. 94-3710 and ordering petitioners' assignment to the Commission's Regional Offices in Regions III and V. Section 2(3) of Article IX(B) of the 1987 Constitution declared that "no officer or employee of the Civil Service shall be removed or suspended except for cause provided by law." Petitioners in effect contend that they were unlawfully removed from their positions in the OPIA and OPR by the implementation of Resolution No. 94-3710 and that they cannot, without their consent, be moved out to the Regional Offices of the Commission. We note, firstly, that appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. Thus, a person may be appointed to the position of Director III or Director IV; or to the position of Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II; and so forth. In the instant case, petitioners were each appointed to the position of Director IV, without specification of any particular office or station. The same is true with respect to the other persons holding the same position or rank of Director IV of the Commission. Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a management prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil service: Sec. 26. Personnel Actions. . . . As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be known as personnel action. Such action shall include appointment through certification, promotion, transfer, re-instatement, re-employment, detail, reassignment, demotion, and separation. All personnel actions shall be in accordance with such rules, standards, and regulations as may be promulgated by the Commission. (7) Reassignment. An employee may be re-assigned from one organizational unit to another in the same agency, Provided, That such re-assignment shall not involve a reduction in rank status and salary. (Emphasis supplied) It follows that the reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA and OPR, respectively, to the Research and Development Office (RDO) in the Central Office of the Commission in Metropolitan Manila and their subsequent assignment from the RDO to the Commission's Regional Offices in Regions V and III had been effected with express statutory authority and did not constitute removals without lawful cause. It also follows that such re-assignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations which they had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had not, in other words, acquired a vested right to serve at the Commission's Head Office. Secondly, the above conclusion is compelled not only by the statutory provisions relevant in the instant case, but also by a long line of cases decided by this Court in respect of different agencies or offices of government. In one of the more recent of these cases, Department of Education Culture and Sports, etc., et al. v. Court of Appeals, et al., 8 this Court held that a person who had been appointed as "Secondary School Principal II" in the Division of City Schools, District II, Quezon City, National Capital Region, and who had been stationed as High School Principal in the Carlos Albert High School in Quezon for a number of years, could lawfully be reassigned or transferred to the Manuel Roxas High School, also in Quezon City, without demotion in rank or diminution of salry. This Court held: The aforequoted provision of Republic Act No. 4670 particularly Section 6 thereof which provides that except for cause and in the exigencies of the service no teacher shall be transferred without his consent from one station to another, finds no application in the case at bar as this is predicated upon the theory that the teacher concerned is appointed not merely assigned to a particular station. Thus:

The rule pursued by plaintiff only goes so far as the appointed indicates a specification. Otherwise, the constitutionally ordained security of tenure cannot shield her. In appointments of this nature, this Court has consistently rejected the officer's demand to remain even as public service dictates that a transfer be made in a particular station. Judicial attitude toward transfers of this nature is expressed in the following statement in Ibaez, et al. vs. Commission on Elections, et al. (G.R. No. L-26558, April 27, 1967; 19 SCRA 1002 [1967]); That security of tenure is an essential and constitutionally guaranteed feature of our Civil Service System, is not open to debate. The mantle of its protection extends not only against removals without cause but also against unconsented transfer which, as repeatedly enunciatEd, are tantamount to removals which are within the ambit of the fundamental guarantee. However, the availability of that security of tenure necessarily depends, in the first instance, upon the nature of the appointment (Hojilla vs. Marino, 121 Phil. 280 [1965].) Such that the rule which proscribes transfers without consent as anathema to the security of tenure is predicated upon the theory that the officer involved is appointed not merely assigned to a particular station (Miclat v. Ganaden, et al., 108 Phil. 439 [1960]; Jaro v. Hon. Valencia, et al., 118 Phil. 728 [1963]). [Brillantes v. Guevarra, 27 SCRA 138 (1969)] The appointment of Navarro as principal does not refer to any particular station or school. As such, she could be assigned to any station and she is not entitled to stay permanently at any specific school. (Bongbong v. Parado, 57 SCRA 623) When she was assigned to the Carlos Albert High School, it could not have been with the intention to let her stay in said school permanently. Otherwise, her appointment would have so stated. Consequently, she may be assigned to any station or school in Quezon City as the exigencies of public service require even without consent. As this Court ruled in Brillantes v. Guevarra, 27 SCRA 138, 143 Plaintiff's confident stride falters. She took too loose a view of the applicable jurisprudence. Her refuge behind the mantle of security of tenure guaranteed by the Constitution is not impenetrable. She proceeds upon the assumption that she occupies her station in Sinalang Elementary School by appointment. But her first appointment as Principal merely reads thus: "You are hereby appointed a Principal (Elementary School) in the Bureau of Public Schools, Department of Education", without mentioning her station. She cannot therefore claim security of tenure as Principal of Sinalang Elementary School or any particular station. She may be assigned to any station as exigency of public service requires, even without her consent. She thus has no right of choice. 9 (Emphasis supplied; citation omitted) In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et a1., 10 the Court addressed appointments of petitioners as "Mediators-Arbiters in the National Capital Region" in dismissing a challenge on certiorari to resolutions of the CSC and orders of the Secretary of Labor. The Court said: Petitioners were appointed as Mediator Arbiters in the National Capital Region. They were not, however, appointed to a specific station or particular unit of the Department of Labor in the National Capital Region (DOLE-NCR). Consequently, they can always be reassigned from one organizational unit to another of the same agency where, in the opinion of respondent Secretary, their services may be used more effectively. As such they can neither claim a vested right to the station to which they were assigned nor to security of tenure thereat. As correctly observed by the Solicitor General, petitioners' reassignment is not a transfer for they were not removed from their position as med-arbiters. They were not given new appointments to new positions. It indubitably follows, therefore, that Memorandum Order No. 4 ordering their reassignment in the interest of the service is legally in order. 11 (Emphases supplied) In Quisumbing v. Gumban, 12 the Court, dealing with an appointment in the Bureau of Public Schools of the Department of Education, Culture and Sports, ruled as follows:

After a careful scrutiny of the records, it is to be underscored that the appointment of private respondent Yap is simply that of a District Supervisor of the Bureau of Public Schools which does not indicate a specific station (Rollo, p. 13). A such, she could be assigned to any station and she is no entitled to stay permanently at any specific station (Bongbong v. Parado, 57 SCRA 623 [1974]; Department of Education, Culture and Sports v. Court of Appeals [G.R. 81032, March 22, 1990] citing Brillantes v. Guevarra [27 SCRA 138 [1969]). 13 Again, in Ibaez v. Commission on Elections, 14 the Court had before it petitioners' appointments as "Election Registrars in the Commission of Elections," without any intimation to what city, municipality or municipal district they had been appointed as such. 15 The Court held that since petitioners "were not appointed to, and consequently not entitled to any security of tenure or permanence in, any specific station," "on general principles, they [could] be transferred as the exigencies of the service required," and that they had no right to complain against any change in assignment. The Court further held that assignment to a particular station after issuance of the appointment was not necessary to complete such appointment: . . . . We cannot subscribe to the theory that an assignment to a particular station, in the light of the terms of the appointments in question, was necessary to complete the said appointments. The approval thereof by the Commissioner of Civil Service gave those appointments the stamp of finality. With the view that the respondent Commission then took of its power in the premises and the demand of the mission it set out to accomplish with the appointments it extended, said appointments were definitely meant to be complete as then issued. The subsequent assignment of the appointees thereunder that the said respondent Commission held in reserve to be exercised as the needs of each locality justified did not in any way detract from the perfection attained by the appointments beforehand. And the respective appointees were entitled only to such security of tenure as the appointment papers concerned actually conferred not in that of any place to which they may have been subsequently assigned. . . . As things stand, in default of any particular station stated in their respective appointments, no security of tenure can be asserted by the petitioners on the basis of the mere assignments which were given to them. A contrary rule will erase altogether the demarcation line we have repeatedly drawn between appointment and assignment as two distinct concepts in the law of public officers. 16 (Emphases supplied) The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare Office Incharge, Division of Urban, Rural and Community Administration, Social Welfare Administration." She was assigned as Social Welfare Incharge of the Mountain Province, by an office order of the Administrator, Social Welfare Administration. After a little more than a year; petitioner was assigned elsewhere and respondent Ganaden transferred to petitioner's first station in Baguio City. The Court ruled that petitioner was not entitled to remain in her first station, In Jaro v. Hon. Valencia, et al., 18 petitioner Dr. Jaro had been appointed "Physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals." He was first assigned to the Municipal Maternity and Charity Clinics in Batulati, Davao, and later to the corresponding clinic in Saug, Davao and then to Catil, Davao. He was later assigned to the Municipality of Padada, also of Davao Province. He resisted his last assignment and brought mandamus against the Secretary of Health to compel the latter to return him to his station in Catil, Davao as Municipal Health Officer thereof. The Court, applying Miclat v. Ganaden dismissed this Petition holding that his appointment not being to any specific station but as a physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals, he could be transferred or assigned to any station where, in the opinion of the Secretary of Health, his services may be utilized more effectively. 19 Also noteworthy is Sta. Maria v. Lopez 20 which involved the appointment of petitioner Sta. Maria as "Dean, College of Education, University of the Philippines." Dean Sta. Maria was transferred by the President of the University of the Philippines to the Office of the President, U.P., without demotion in rank or salary, thereby acceding to the demands of student activists who were boycotting their classes in the U.P. College of Education. Dean Sta. Maria assailed his transfer as an illegal and unconstitutional removal from office. In upholding Dean Sta. Maria's claim, the Court, speaking through Mr. Justice Sanchez, laid down the applicable doctrine in the following terms: 4. Concededly, transfers there are which do not amount to removal. Some such transfer can be effected without the need for charges being preferred, without trial or hering, and even without the consent of the employee. The clue to such transfers may be found in the "nature of the appointment." Where the appointment does not indicate a specific station, an employee may be transferred or reassigned provided the transfer affects no substantial change in title, rank and salary. Thus one who is appointed "principal in the Bureau of Public Schools" and is designated to head a pilot school may be transferred to the post of principal of another school. And the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed not merely assigned to a particular station. Such a rule does not prescribe a

transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. The use of approved techniques or methods in personnel management to harness the abilities of employees to promote optimum public service cannot-be objected to. . . . 5. The next point of inquiry is whether or not Administrative Order 77 would stand the test of validity vis-avis the principles just enunciated. xxx xxx xxx To be stressed at this point, however, is that the appointment of Sta. Maria is that of "Dean, College of Education, University of the Philippines." He is not merely a dean "in the university." His appointment is to a specific position; and, more importantly, to a specific station. 21 (Citations omitted; emphases supplied) For all the foregoing we conclude that the reassignment of petitioners Fernandez and de Lima from their stations in the OPIA and OPR, respectively, to the Research Development Office (RDO) and from the RDO to the Commissions Regional Offices in Regions V and III, respectively, without their consent, did not constitute a violation of their constitutional right to security of tenure. WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with Prayer for Writ of Preliminary Injunction or Temporary Restraining Order is hereby DISMISSED. The Temporary Restraining Order issued by this Court on 27 September 1994 is hereby LIFTED. Costs against petitioners. SO ORDERED.

G.R. No. 145368

April 12, 2002

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent. 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 1988." 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 "i 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 reply8 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 Constitution10 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 Constitution11 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 government-owned 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 nonfeasance 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 governmentowned 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 jurisprudence13 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 long-range 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; (b) To act as principal coordinator for all the activities related to awareness and celebration of the Centennial; (c) To serve as the clearing house for the preparation and dissemination of all information about the plans and events for the Centennial Celebrations; (d) To constitute working groups which shall undertake the implementation of the programs and projects; (e) 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 by executive 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 in implementation 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. 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. Fontanilla21 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. 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.

G.R. No. L-23226

March 4, 1925

VICENTE SEGOVIA, petitioner-appellee, vs. PEDRO NOEL, respondent-appellant. Provincial Fiscal Diaz for appellant. Del Rosario and Del Rosario for appellee. Vicente Zacarias as amicus curiae. MALCOLM, J.: The question to be decided on this appeal is whether that portion of Act No. 3107 which provides, that justices of the peace and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty- five years, should be given retroactive or prospective effect. Vicente Segovia was appointed justice of the peace of Dumanjug, Cebu, on January 21, 1907. He continuously occupied this position until having passed sixty-five mile- stones, he was ordered by the Secretary of Justice on July 1, 1924, to vacate the office. Since that date, Pedro Noel, the auxiliary justice of the peace has acted as justice of the peace for the municipality of Dumanjug. Mr. Segovia being desirous of avoiding a public scandal and of opposing physical resistance to the occupancy of the office of justice of the peace by the auxiliary justice of the peace, instituted friendly quo warranto proceedings in the Court of First Instance of Cebu to inquire into the right of Pedro Noel to occupy the office of justice of the peace, to oust the latter therefrom, and to procure reinstatement as justice of the peace of Dumanjug. To this complaint, Pedro Noel interposed a demurrer on the ground that it did not allege facts sufficient to constitute a cause of action, because Act No. 3107 was constitutional and because Mr. Segovia being sixty-five years old had automatically ceased to be justice of the peace. On the issue thus framed and on stipulated facts, judgment was rendered by Honorable Adolph Wislizenus, Judge of First Instance, overruling the demurrer, and in favor of petitioner and against respondent. Proceeding by way of elimination so as to resolve the case into its simplest factors, it will first be noted that the petitioner abandons the untenable position, assumed by him in one portion of his complaint, to the effect that section 1 of Act No. 3107 is unconstitutional in that it impairs the contractual right of the petitioner to an office. It is a fundamental principle that a public office cannot be regarded as the property of the incumbent, and that a public office is not a contract. It will next be noted that, while the respondent as appellant assigns three errors in this court, the first two relating to preliminary matters are ultimately renounced by him in order that there may be an authoritative decision on the main issue. The third error specified and argued with ability by the provincial fiscal of Cebu, is that the trial judge erred in declaring that the limitation regarding the age of justices of the peace provided by section 1 of Act No. 3107 is not applicable to justices of the peace and auxiliary justices of the peace appointed and acting before said law went into effect. Coming now to the law, we find on investigation the original provision pertinent to the appointment and term of office of justices of the peace, in section 67 of Act No. 136, wherein it was provided that justices of the peace shall hold office during the pleasure of the Commission. Act No. 1450, in force when Vicente Segovia was originally appointed justice of the peace, amended section 67 of the Judiciary Law by making the term of office of justices and auxiliary justices of the peace two years from the first Monday in January nearest the date of appointment. Shortly after Segovia's appointment, however, the law was again amended by Act No. 1627 by providing that "all justices of the peace and auxiliary justices of the peace shall hold office during good behavior and those now in office shall so continue." Later amended by Acts Nos. 2041 and 2617, the law was ultimately codified in sections 203 and 206 of the Administrative Code. Codal section 203 in its first paragraph provides that "one justice of the peace and one auxiliary justice of the peace shall be appointed by the Governor-General for the City of Manila, the City of Baguio, and for each municipality, township, and municipal district in the Philippine Islands, and if the public interests shall so require, for any other minor political division or unorganized territory in said Islands." It was this section which section 1 of Act No. 3107 amended by adding at the end thereof the following proviso: "Provided, That justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years." But section 206 of the Administrative Code entitled "Tenure of office," and reading "a justice of the peace having the requisite legal qualifications shall hold office during good behavior unless his office be lawfully abolished or merged in the jurisdiction of some other justice," was left unchanged by Act No. 3107. A sound canon of statutory construction is that a statute operates prospectively only and never retroactively, unless the legislative intent to the contrary is made manifest either by the express terms of the statute or by necessary implication.

Following the lead of the United States Supreme Court and putting the rule more strongly, a statute ought not to receive a construction making it act retroactively, unless the words used are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. No court will hold a statute to be retroactive when the legislature has not said so. As our Civil Code has it in article 3, "Law shall not have a retroactive effect unless therein otherwise provided." (Farrel vs. Pingree [1888], 5 Utah, 443; 16 Pac., 843; Greer vs. City of Asheville [1894], 114 N.C., 495; United States Fidelity and Guaranty Co. vs. Struthers Wells Co. [1907], 209 U.S., 306; Montilla vs. Agustinian Corporation [1913], 24 Phil., 220; In re will of Riosa [1918], 39 Phil., 23.) The same rule is followed by the courts with reference to public offices. A well-known New York decision held that "though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated." (People ex rel. Ryan vs. Green [1874], 58 N.Y., 295.) In another case, a new constitutional provision as to the advanced age which should prevent the incumbents of certain judicial offices from retaining them was held prospective; it did not apply to persons in office at the time of its taking effect. (People vs. Gardner, 59 Barb., 198; II Lewis' Sutherland Statutory Construction, Chap. XVII, particularly pages 1161, 1162; Mechem on Public Officers, sec. 389.) The case at bar is not the same as the case of Chanco vs. Imperial ( [1916], 34 Phil., 329). In that case, the question was as to the validity of section 7 of Act No. 2347. The law under consideration not only provided that Judges of First Instance shall serve until they have reached the age of sixty-five years, but it further provided "that the present judges of Courts of First Instance ... vacate their positions on the taking effect of this Act: and the Governor-General, with the advice and consent of the Philippine Commission, shall make new appointments of judges of Courts of First Instance ... ." There the intention of the Legislature to vacate the office was clearly expressed. Here, it is not expressed at all. The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no indication of retroactive effect. The law signifies no purpose of operating upon existing rights. A proviso was merely tacked on to section 203 of the Administrative Code, while leaving intact section 206 of the same Code which permits justices of the peace to hold office during good behavior. In the absence of provisions expressly making the law applicable to justices of the peace then in office, and in the absence of provisions impliedly indicative of such legislative intent, the courts would not be justified in giving the law an interpretation which would legislate faithful public servants out of office. Answering the question with which we began our decision, we hold that the proviso added to section 203 of the Administrative Code by section 1 of Act No. 3107, providing that justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years, should be given prospective effect only, and so is not applicable to justices of the peace and auxiliary justices of the peace appointed before Act No. 3107 went into force. Consequently, it results that the decision of the trial court is correct in its findings of fact and law and in its disposition of the case. Judgment affirmed, without costs. It is so ordered.

G.R. No. L-16887

November 17, 1920

MIGUEL R. CORNEJO, petitioner, vs. ANDRES GABRIEL, provincial governor of Rizal, and the PROVINCIAL BOARD OF RIZAL, composed of ANDRES GABRIEL, PEDRO MAGSALIN and CATALINO S. CRUZ, respondents. Gregorio Perfecto for petitioner. MALCOLM, J.: The petitioner in this case, the suspended municipal president of Pasay, Rizal, seeks by these proceedings in mandamus to have the provincial governor and the provincial board of the Province of Rizal temporarily restrained from going ahead with investigation of the charges filed against him pending resolution of the case, and to have an order issue directed to the provincial governor commanding him to return the petitioner to his position as municipal president of Pasay. The members of the provincial board have interposed a demurrer based on the ground that this court has no right to keep them from complying with the provisions of the law. The provincial governor has filed an answer to the petition, in which he alleges as a special defense that numerous complaints have been received by him against the conduct of Miguel R. Cornejo, municipal president of Pasay; that these complaints were investigated by him; that he came to the conclusion that agreeable to the powers conferred upon provincial governors, the municipal president should be temporarily suspended, and that an investigation is now being conducted by the provincial board. Counsel for petitioner has argued, with much eloquence, that his client has been deprived of an office, to which he was elected by popular vote, without having an opportunity to be heard in his own defense. The respondents reply that all that the provincial governor and the provincial board have done in this case is to comply with the requirements of the law which they are sworn to enforce. Obviously, therefore, we should first have before us the applicable provisions of the Philippine law bearing on the subject of suspension of public officers. Under the title of "Provincial supervision over municipal officers," Article IV of Chapter 57 of the Administrative Code, provides: The provincial governor shall receive and investigate complaints against municipal officers for neglect of duty, oppression, corruption, or other form of maladministration in office. for minor delinquency he may reprimand the offender; and if a more severe punishment seems to be desirable, he shall submit written charges touching the matter to the provincial board, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in question. Where suspension is thus effected, the written charges against the officer shall be filed with the board within ten days. Trial of municipal officer by provincial board. When written charges are preferred by a provincial governor against a municipal officer, the provincial board shall, at its next meeting, regular or special, furnish a copy of said charges to the accused official, with a notification of the time and place of hearing thereon; and at the time and place appointed, the board shall proceed to hear and investigate the truth or falsity of said charges, giving the accused official full opportunity to be heard. The hearing shall occur as soon as may be practicable, and in case suspension has been effected, not later than fifteen days from the date the accused is furnished a copy of the charges, unless the suspended official shall, on sufficient grounds, request an extension of time to prepare his defense. Action by provincial board. If, upon due consideration, the provincial board shall adjudge that the charges are not sustained, the proceedings shall be dismissed; if it shall adjudge that the accused has been guilty of misconduct which would be sufficiently punished by reprimand, or further reprimand, it shall direct the provincial governor to deliver such reprimand in pursuance of its judgment; and in either case the official, if previously suspended, shall be reinstated. If in the opinion of the board the case is one requiring more severe discipline, it shall without unnecessary delay forward to the Chief of the Executive Bureau certified copies of the record in the case, including the charges, the evidence, and the findings of the board, to which shall be added the recommendation of the board as to whether the official ought to be suspended, further suspended, or finally dismissed from office; and in such case the board may exercise its discretion to reinstate the official, if already suspended, or to suspend him or continue his suspension pending final action. The trial of a suspended municipal official and the proceedings incident thereto shall be given preference over the current and routine business of the board.

Action by Chief of Executive Bureau. Upon receiving the papers in any such proceeding the Chief of the Executive Bureau shall review the case without unnecessary delay and shall make such order for the reinstatement, dismissal, suspension, or further suspension of the official, as the facts shall warrant. Disciplinary suspension made upon order of the chief of the Executive Bureau shall be without pay and in duration shall not exceed two months. No final dismissal hereinunder shall take effect until recommended by the Department Head and approved by the Governor-General. With the foregoing legal provisions in mind, certain aspects of the case can be disposed of without difficulty. Thus it cannot be seriously contended that the courts should interfere with an orderly investigation which is about to be conducted by the provincial board. Nor can there be any doubt as to the meaning of the law. A very minute and extensive procedure is provided by the Legislature for central and provincial supervision of municipal officers. The provincial governor, in receiving and investigating complaints against such officers, may take three courses. For a minor delinquency he may reprimand the offender; but if the maladministration in office is more serious he may temporarily suspend the officer, and thereafter may file written charges against the officer with the provincial board. The procedure followed before the provincial board and later on appeal to the Chief of the Executive Bureau, while interesting, does not concern us. The important fact is that the law, in permitting a provincial governor temporarily to suspend a municipal officer, makes no mention of a formal hearing of the charges. In the exercise of this disciplinary power by the provincial governor, all that he can do before the presentation of formal charges is either to reprimand the officer or to suspend him temporarily from office. In the latter case the provincial governor's action is not a finality. The law is especially careful to guard the rights of officer charged with maladministration in office. But the point is made that, notwithstanding the provisions of the law and notwithstanding long official practice, the temporary suspension of a municipal officer, without an opportunity to be heared in his own defense, is in contravention of the provisions of the Philippine Bill of Rights concerning due process of law. So much has been written on the subject of due process of law that is would be futile to enter into its intricate mazes. It is self-evident, however, that, in ordinary cases, to condemn without a hearing violates the due process of law clause of the American Constitution and of the Philippine Bill of Rights. It is for this reason that we can well understand the logic of those who cling to this through and to whom a contemplated violation of the Constitution is most repugnant. It is but fair, in ordinary cases, that a public official should not be removed or suspended without notice, charges, a trial, and an opportunity for explanation. But not permitting our judgment to be unduly swayed by sympathy for the petitioner's brave fight, and recalling again that the courts have ordinarily to give effect to legislative purposes, it is further only fair to mention certain exceptions to the due process of law rule, which would seem to include the instant case. The fact should not be lost sight of that we are dealing with an administrative proceeding and not with a judicial proceeding. As Judge Cooley, the leading American writer on constitutional Law, has well said, due process of law is not necessarily judicial process; much of the process by means of which the Government is carried on, and the order of society maintained, is purely executive or administrative, which is as much due process of law, as is judicial process. While a day in court is a matter of right in judicial proceedings, in administrative proceedings it is otherwise since they rest upon different principles. (Weimer vs. bunbury [1874], 30 Mich., 201; Den. vs. Hoboken Land and Improvement Co. [1856], 18 How., 272 followed in Forbes vs. Chuoco Tiaco [1910], 16 Phil., 534; Tan Te vs. Bell {1914], 27 Phil., 354; U.S. vs. Gomez Jesus [1915], 31 Phil., 218 and other Philippine cases). In certain proceedings, therefore, of an administrative character, it may be stated, without fear of contradiction, that the right to a notice and hearing are not essential to due process of law. Examples of special or summary proceedings affecting the life, liberty or property of the individual without any hearing can easily be recalled. Among these are the arrest of an offender pending the filing of charges; the restraint of property in tax cases; the granting of preliminary injunction ex parte; and the suspension of officers or employees by the Governor-General or a Chief of a Bureau pending an investigation. (See Weimer vs. Bunbury, supra; 12 C.J., 1224; Administrative Code, sec. 694.) Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office as "property." It is, however, well settled in the United States, that a public office is not property within the sense of the constitutional guaranties of due proces of law, but is a public trust or agency. In the case of Taylor vs. Beckham ([1899], 178, U. S., 548), Mr. Chief Justice Fuller said that: "Decisions are numerous to the effect that public offices are mere agencies or trust, and not property as such." The basic idea of government in the Philippine Islands, as in the United States, is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he represents. Coming now to the more specific consideration of the issue in this case, we turn to the article by Prof. Frank J. Goodnow, generally considered the leading authority in the United States on the subject of Administration Law, in Vol. 29, Cyclopedia of Law and Procedure, and find the rules as to suspension of public officers laid down very concisely as follows: "Power to suspend may be exercised without notice to the person suspended." (P. 1405.) The citation by

Professor Goodnow to support his conclusion is State of Florida, ex rel. Attorney-General vs. Johnson ([1892], 30 Fla., 433; 18 L. R. A., 410). It was here held by the Supreme Court of Florida that the governor could, under section 15 of the executive article of the Constitution, suspend an officer for neglect of duty in office without giving previous notice to the officer of the charge made against him. A later compilation of the pertinent authorities is to be found in 22 Ruling Case Law, pp. 564, 565. On the subject of suspension of public officers it is heared said: The suspension of an officer pending his trial for misconduct, so as to tie his hands for the time being, seems to be universally accepted as fair, and often necessary. . . . Notice and hearing are not prerequisite to suspension unless required by statute and therefore suspension without such notice does not deprive the officer of property without due process of law. Nor is a suspension wanting in due process of law or a denial of the equal protection of the laws because the evidence against the officer is not produced and he is not given an opportunity to confront his accusers and crossexamine the witnesses.lawph!l.net The case to support the first sentence in the above enunciation of the rule is State vs. Megaarden (85 Minn., 41), which in turn is predicated on State vs. Peterson ([1892], 50 Minn., 239). In a discussion of the subject more general than specific, it was said: The safety of the state, which is the highest law, imperatively requires the suspension, pending his trial, of a public officer, especially a custodian of public funds, charged with malfeasance or nonfeasance in office. Suspension does not remove the officer, but merely prevents him, for the time being, from performing the functions of his office; and from the very necessities of the case must precede a trial or hearing. Such temporary suspension without previous hearing is fully in accordance with the analogies of the law. It is a constitutional principle that no person shall be deprived of his liberty or property except by due process of law, which includes notice and a hearing, yet it was never claimed that in criminal procedure a person could not be arrested and deprived of his liberty until a trial could reasonably be had, or that in civil actions ex parte and temporary injunctions might not be issued and retained in proper case, until a trial could be had, and the rights of the parties determined. We have no doubt, therefore, of the authority of the legislature to vest the governor with power to temporarily suspend a county treasurer pending the investigation of the charges against him, of official misconduct. The case cited by the editors of Ruling Case Law as authority for their second sentence is that of Griner vs. Thomas ([1907], 101 Texas, 36; 16 Ann. Cas., 944). The holding of the court here was that it is within the power of the legislature to authorize the temporary suspension of a public officer during the pendency of valid proceedings to remove such officer and as an incident to such proceedings, notwithstanding the fact that the constitution has given power to remove such officer only for cause and after a hearing. Notice and hearing are not preprequisites to the suspension of a public officer under a statute which does not provide for such notice and hearing. The third case cited by Ruling Case Law comes from the United States Supreme Court. (Wilson vs. North Carolina [1897], 169 U.S, 586.) An examination of the decision, however, shows that while it tends to substantiate the rule, the facts are not exactly on all fours with those before us. Without, therefore, stopping to set forth the facts, only the following from the body of the decisioned be noted, viz.: In speaking of the statute and the purpose of this particular provision the Supreme Court of the State said: "The duty of suspension was imposed upon the Governor from the highest motives of public policy to prevent the danger to the public interests which might arise from leaving such great powers and responsibilities in the hands of men legally disqualified. To leave them in full charge of their office until the next biennial session of the legislature, or pending litigation which might be continued for year, would destroy the very object of the law. As the Governor was, therefore, by the very and spirit of the law, required to act and act promptly, necessarily upon his own findings of fact, we are compelled to hold that such official action was, under the circumstances, due process of law. Even if it were proper, the Governor would have no power to direct an issue like a chancellor." The highest court of the State has held that this statue was not a violation of the constitution of the State; that the hearing before the Governor was sufficient; that the office was substantially an administrative one, although the commission was designed by a statute subsequent to that which created it, a court of record; that the officer taking office under the statute was bound to take it on the terms provided for therein; that he was lawfully suspended from office; and that he was not entitled to a trial by jury upon the hearing of this case in the trial court. As a result the court held that the defendant had not been deprived of his property without due process of law, nor had he been denied the equal protection of the laws.

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We are of opinion the plaintiff in error was not deprived of any right guaranteed to him by the Federal Constitution, by reason of the proceedings before the Governor under the statute above mentioned, and resulting in his suspension from office. The procedure was in accordance with the constitution and laws of the State. It was taken under a valid statute creating a state office in a constitutional manner, as the state court has held. What kind and how much of a hearing the officer should have before suspension by the Governor was a matter for the state legislature to determine, having regard to the constitution of the State. (There can also be cited as supporting authority State ex rel. Wendling vs. Board of Police and Fire Commissioners [1915], 159 Wis., 295; Sumpter vs. State {1906], 81 Ark., 60; Gray vs. McLendon [1901], 134 Ga., 224; State vs. Police Commissioners, 16 Mo. App., 947; Preston vs. City of Chicago [1910], 246 III., 26; and People vs. Draper [1910], 124 N.Y.S., 758, where it was held that the legislature has the right to authorize an officer to remove an appointive or elective officer without notice or hearing.) Certain intimations have been made that under the procedure prescribed by the law an injustice might be done municipal officers. Such suppositions are not unusual even as to cases before the courts, but in this as in all other instances, the presumption always is that the law will be followed and that the investigation and the hearing will be impartial. In the language of Justice Trent in Severino vs. Governor-General ([1910], 16 Phil., 366, 402), "the presumption is just as conclusive in favor of executive action, as to its correctness and justness, as it is in favor of judicial action." We entertain no doubt that the provincial governor, fully conscious of the trust reposed in him by the law, will act only in cases where strong reasons exist for exercising the power of suspension and upon a high consideration of his duty. The suggestion that an unfriendly governor might unduly delay the hearing is also without much force. The same might be said of any administrative officer, or in fact of any judicial officer. The presumption, again, is that every officer will do his duty promptly, and if he does not, certainly a remedy can be found to make him do so. Not only this, but the law before us expedites the proceedings by fixing a short period of ten days within which the provincial governor must lay the charges before the provincial board, which must be heard by the latter body within fifteen days. Of more compelling force is the suggestion from the other side that the public interest might suffer detriment by postponing the temporary suspension until after the hearing. Our holding, after most thoughtful consideration, is that the provisions of section 2188 of the Administrative Code are clear and that they do not offend the due process of law clause of the Philippine Bill of Rights. Accordingly, it is our duty to apply the law without fear or favor. Petition denied with costs. So ordered.

G.R. No. 112283 August 30, 1994 EVELYN ABEJA, petitioner, vs. JUDGE FEDERICO TAADA, Regional Trial Court of Lucena City, Branch 58, and ROSAURO RADOVAN (deceased) *, respondents. BIDIN, J.: In this petition for certiorari, petitioner seeks the annulment of the orders dated September 21, 1992 and October 18, 1993 issued by respondent Judge Federico Taada which decreed, among others, the revision of some 36 precincts contained in the counter-protest filed by respondent Radovan. The said orders were issued by respondent judge in resolving petitioner/protestant's "Motion to Determine Votes, to Proclaim Winner and to Allow Assumption of Office" dated August 27, 1993. The antecedent facts of the case are as follows: Petitioner Evelyn Abeja and private respondent Rosauro Radovan (deceased) were contenders for the office of municipal mayor of Pagbilao, Quezon, in the May 11, 1992, national elections. Based on the official returns of the Municipal Board of Canvassers for the said municipality, private respondent was credited with 6,215 votes as against petitioner's 5,951 votes. Soon after the proclamation of private respondent, petitioner filed an election contest, docketed as Election Case No. 921, entitled "Evelyn Abeja vs. Rosauro Radovan" with the Regional Trial Court of Lucena City. The protest covered twentytwo (22) precincts. On June 5, 1992, private respondent filed an Answer with a Counter-Protest of the results in thirty-six (36) precincts. During the pre-trial, private respondent's counsel filed a motion praying that the 36 counter-protested precincts be revised only if it is shown after completion of the revision of the 22 protested precincts that petitioner leads by a margin of at least one (1) vote. The trial court declared discussion on the matter to be premature (TSN, July 6, 1992, pp. 8-12; Rollo, p. 148). The revision of the ballots covering 22 protested precincts was completed in September 1992. Thereafter, petitioner urged private respondent to commence the revision of the 36 counter-protested precincts by praying the necessary fees for the purpose. Private respondent refused. In view thereof, petitioner moved that the counter-protest of private respondent be considered withdrawn. Private respondent opposed the motion and reiterated that the ballots of the 36 counter-protested precincts should only be revised and recounted if it is shown after the revision of the contested ballots of the 22 precincts that petitioner leads by at least one (1) vote. Petitioner filed another manifestation and motion on September 29, 1992, praying that the counter-protest be considered withdrawn from the time the final report of the Board of Revisors is submitted to the court for approval. The then presiding Judge, Hon. Ludovico Lopez, did not rule on the aforementioned motions but, according to petitioner, he (Judge Lopez) declared during a hearing in October 1992 that once a ruling is made on the contested ballots of the 22 protested precincts, he will not allow further revision of ballots. By April 1993, all pending incidents including the report of the Board of Revisors as well as petitioner's formal offer of evidence were considered submitted for resolution without private respondent having caused the revision of the ballots in the 36 counter-protested precincts. In an order dated April 15, 1993, Presiding Judge Lopez ruled that "(p)rotestant's offer of evidence as well as the protestee's objections thereto are now submitted for the Court's resolution" (Rollo, p. 61). On June 13, 1993, private respondent Rosauro Radovan died. He was substituted by Vice-Mayor Conrado de Rama and, surprisingly, by his surviving spouse, Ediltrudes Radovan.

On July 13, 1993, private respondents de Rama and Radovan filed a Manifestation seeking a prompt resolution of all pending incidents. On August 12, 1993, the trial court issued an order stating that "(c)ounsels for both parties having signified to this Court that they are submitting the motion to resolve without further argument. This motion being a motion to resolve, the Court hereby informs the parties that pending matters submitted for resolution will be duly resolved on or before August 20, 1993" (Rollo, p. 143). Shortly thereafter, Judge Lopez was reassigned to the Regional Trial Court of Kalookan City. Before transferring to his new post, however, Judge Lopez issued an order dated August 18, 1993 which contained his ruling in each of the contested ballots in the 22 contested precincts and the reasons therefor. In the said order, Judge Lopez emphasized that "in ruling on the various objections lodged by both parties during the revision proceedings, the originals of the contested ballots in the ballot boxes were subjected to careful scrutiny in the seclusion of the Court's chamber" (Rollo, p. 161). Nonetheless, the ruling did not contain a summation of the exact number of votes to be credited to each of the parties, or a declaration of the winner in the election protest for that matter. On August 27, 1993, petitioner filed a "Motion to Determine Votes, To Proclaim Winner and to Allow Assumption of Office" considering that based on her own computation of revised ballots ruled upon by Judge Lopez, she led private respondent by a margin of 281 votes. Private respondents filed a Motion to Correct the order dated August 18, 1993, issued by Judge Lopez as well as oppositions to the motion of petitioner. Respondents claim that petitioner's "Motion to Proclaim Winner" is premature since the 36 counter-protested precincts are yet to be revised. In an order dated September 21, 1993, herein respondent Judge Federico Taada, who succeeded Judge Lopez, denied the "Motion to Determine Votes, to Proclaim Winner and to Allow Assumption of Office" filed by petitioner. Respondent judge ruled that petitioner's motion was indeed premature on the ground that until after the 36 counter-protested precincts have been revised, the court could not render a valid decision. On October 18, 1993, respondent judge issued another order denying petitioner's motion for reconsideration and directed the revision committee to conduct a revision of the results of the 36 counter-protested precincts scheduled on November 10, 1993. These orders are the subject of this petition filed on November 8, 1993. As prayed for by petitioner, the Court issued a temporary restraining order on November 17, 1993, enjoining respondents from continuing with the revision of the ballots in the 36 counter-protested precincts. It appears, however, that the restraining order was served on November 19, 1993, after the revision committee had completed revising 11 ballot boxes. The sole issue to be resolved in this case is whether or not private respondents should be allowed to proceed with the revision of the 36 precincts subject of the counter-protest. It is clear from the records that Judge Lopez failed to issue a definitive ruling on this specific procedural issue raised by the parties, which this Court must now provide. Although petitioner claims that Judge Lopez issued a warning to private respondent to the effect that he (private respondent) shall not be allowed to cause the revision of the counter-protested precincts after the revision of the protested precincts is completed and ruled upon, she fails to cite a specific oral or written order of Judge Lopez containing such warning or at least the date and circumstances of the hearing in which the said warning was issued. Consequently, the alleged warning issued by Judge Lopez is unsubstantiated and must therefore be disregarded. Coming now to the merits of the case, petitioner contends that the revision of the counter-protested precincts filed by private respondent has already been abandoned by his failure to pursue the same, right after the revision of the 22 protested precincts. Petitioner also argue that the case was deemed submitted for decision upon submission by the Board of Revisors of the Report on the Revision of the 22 protested precincts. In the instant case, petitioner, as protestant below, completed the revision of ballots in the 22 protested precincts in September 1992 and her presentation of evidence in April 1993. Likewise, the Board of Revisors had submitted its report and the trial court issued a ruling dated August 18, 1993 on the said revision. Given this state of the proceedings, the

question to be resolved is whether respondent may still be allowed to commence the revision of the counter-protested precincts or should he be deemed to have waived his right to present his own evidence, i.e., the revision of the counterprotested precincts after stubbornly refusing to do so. Petitioner argues that while the sequence in the presentation of evidence may be altered for special reasons, the applicable rules of procedure do not allow presentation of evidence after the court has already rendered a decision. Clearly, petitioner considers the August 18, 1993 Order of Judge Lopez to be the "decision" on the case although the order did not contain a summation of the total votes credited to each of the parties or a declaration of the winner in the election protest. Petitioner objects to the stand taken by private respondent on the procedure to be followed for being "unprocedural" in the sense that a decision rendered on the election protest would be subject to another decision for the counter-protest. It is further argued that since the 36 counter-protested precincts were already under the jurisdiction of the trial court, the same should have been revised unconditionally and should not have been subjected to the whim and caprice of the private respondent. The petition is impressed with merit. Considering that this petition involves an election protest heard by a regional trial court, the Comelec Rules of Procedure are controlling. In view of the fact that the subject election contest was filed on May 26, 1992, Section 2, Rule 17 and Section 11, Rule 35 of the aforementioned Comelec rules are applicable. Rule 17 treats of Hearings whereas Rule 35 treats of Election Contests Before Courts of General Jurisdiction. * Section 2, Rule 17 provides, in part: Sec. 2. Order of hearing. Unless the Commission or the Division, as the case may be, for special reasons, directs otherwise, the order of hearing shall be as follows: (a) The petitioner or protestant shall present evidence on his part; (b) The protestant-in-intervention, if any, shall then offer evidence in support of his defense or counterprotest, if any; (c) The respondent or protestee shall then offer evidence in support of his defense or counter-protest, if any; It thus appears from the foregoing rule that the petitioner/protestant and the respondent/protestee shall present their evidence upon their original case in succession in accordance with the order or sequence provided therein. On the other hand, Section 11, Rule 35 provides: Sec. 11. Presentation and reception of evidence. The presentation and reception of evidence in election contests shall be made in accordance with Section 2 of Rule 17 of these Rules, but the same shall be completed within thirty (30) days from the date of the commencement thereof. The record shows that the revision of ballots in the 22 protested precincts was completed sometime in September 1992. Judge Lopez issued a ruling on the said revision almost a year later, or on August 18, 1993. In the interim, private respondent failed to commence the revision of the ballots in the counter-protested precincts, stubbornly maintaining the position that said precincts should be revised only if it is shown after the revision that petitioner leads private respondent by at least one (1) vote. No law or rule authorizes such a procedure. Consequently, private respondent must be deemed to have waived or abandoned his counter-protest. The applicable Comelec rules provide for the presentation of evidence by the parties in succession in the order or sequence provided under Sec. 2, rule 17 (Comelec Rules) which must be submitted within a reasonable time, if not immediately after the revision of the precincts covered by the protest proper.

By insisting that the counter-protested precincts should be revised only if it is shown after the revision of the protested precincts that petitioner, his opponent, leads by at least one (1) vote, private respondent is adopting a self-serving rule without legal sanction calculated to unduly prolong the litigation. Furthermore, it is readily apparent from the provisions of the applicable Comelec Rules that the court shall render its decision after both parties shall have presented their respective evidence. Nowhere in the said provisions is it indicated that presentation of evidence by the protestee may continue after the court has ruled on the evidence of the protestant and determine the number of votes obtained by the latter. Otherwise, it would be possible for the protestee to prolong the protest and render it moot by expiration of the term of office contested. There is likewise merit to petitioner's claim that private respondent is guilty of laches, which, in a general sense, is a failure or neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable length of time, warranting a presumption that a party entitled to assert it either has abandoned it or declined to assert it (Republic v. Caballero, 79 SCRA 177 [1977]). In the case at bar, private respondent unreasonably failed to cause the revision of the counter-protested precincts despite being afforded ample time to do so and must be deemed to have abandoned it. However, it is not clear from the record of the case whether Judge Lopez issued an order requiring private respondent to pay the required cash deposit for the revision of the ballots in the counter-protested precincts in accordance with Section 10, (b), Rule 35 of the Comelec Rules of Procedure, otherwise, the counter-protest shall be automatically dismissed as provided in Sec. 10[c] thereof: Sec. 10. Cash Deposit. (b) In case revision of ballots is required, there shall be deposited, within ten days after being required by the Court, the sum of three hundred pesos (P300.00) for every ballot box for the compensation of revisors at the rate of P100.00 each. (c) Failure to make the cash deposits herein provided within the prescribed time limit shall result in the automatic dismissal of the protest, counter-protest or protest-in-intervention, as the case may be. In the Comment of private respondent's widow, it is alleged that "the record of the case definitely show (sic) that Judge Lopez himself categorically ruled that the counter-protest was filed on time and the necessary cash deposit submitted by private respondent pursuant to law" (Rollo, p. 60). However, private respondent fails to cite that part of the record in which the said ruling may be found. Private respondent attributes the delay in the resolution of the case to Judge Lopez for failing to rule on the issues raised by the parties. However, it cannot be denied that private respondent has maintained the same position regarding the revision of his counter-protest from the very beginning, as early as the pre-trial of the case, and all throughout the course of the proceedings. Although Judge Lopez' inaction may have contributed to the delay of the case, private respondent Radovan must bear the grave consequences of his stubborn and unfounded refusal to proceed with the revision of the counter-protested precincts. Instead of conducting the revision of his counter-protested precincts, private respondent hedged and stalled on the resolution of the case which is a purely dilatory technique. Private respondent's argument is that the procedure advocated by him would actually save time. Nothing that the resolution of petitioner's protest took almost a year, he contends that about the same length of time would be saved in the event a revision of the counter-protested precincts would be declared unnecessary. Suffice it to state that the procedure proposed by private respondent is not sanctioned by the Rules and need not delay us any longer that it already has in the disposition of this case. Upon the foregoing, we hold that the respondent judge erred in rendering the assailed orders denying petitioner's "Motion to Determine Votes, to Declare Winner and to Allow Assumption of Office" and directing the revision of the counterprotested precincts at this late hour, so to speak. Under the circumstances and for reasons discussed above, the order of Judge Lopez dated August 18, 1993 which resolved the party litigants' objections to the revised ballots may very well be the subject of a valid decision to resolve the instant electoral protest based on the revised ballots of the 22 protested precincts. In the event petitioner is declared the winning candidate, she should, upon proper motion, be allowed to immediately assume the contested office. We say this because in their pleadings, petitioner and private respondent have amply discussed their respective arguments in the applicability of Garcia v. de Jesus and the accompanying case of Tobon Uy v.

Comelec (206 SCRA 779 [1992]) and the possibility is not remote that private respondent may once again resort to dilatory tactics. Section 2, Rule 39 of the Rules of Court allows execution pending appeal in election cases upon good reasons (Garcia v. de Jesus, supra; in relation to Rule 43, Sec. 1, COMELEC Rules of Procedure) which we find obtaining in the case before us. Gahol v. Riodique (64 SCRA 494 [1975]) is even more emphatic: Why should the proclamation by the board of canvassers suffice as a basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of person who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to external consideration, and that the board must act summarily, practically racing against time, while on the other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor. (cited in Garcia v. de Jesus, supra) We also find as erroneous the substitution of the deceased Rosauro Radovan's widow, Ediltrudes Radovan, on the ground that private respondent had a counter-claim for damages. "Public office is personal to the incumbent and is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA 848 [1968]; De la Victoria vs. Comelec, 199 SCRA 561 [1991]). The heirs may no longer prosecute the deceased protestee's counter-claim for damages against the protestant for that was extinguished when death terminated his right to occupy the contested office (Dela Victoria, supra). WHEREFORE, the petition is hereby GRANTED. The assailed orders of respondent judge as well as the results of the revision of the 11 ballot boxes subject of the counter-protest are SET ASIDE. Respondent judge is further ordered to DISMISS the counter-protest in Election Case No. 92-1 and to resolve the "Motion to Determine Votes, to Proclaim Winner and to Allow Assumption of Office" filed by petitioner conformably with this decision within a non-extendible period of fifteen (15) days from receipt hereof. This decision is immediately executory. Costs against respondent Ediltrudes Radovan. SO ORDERED.

CAROLINA R. JAVIER, Petitioner,

G.R. Nos. 147026-27

Present: YNARES-SANTIAGO, J., Chairperson, - versus CHICO-NAZARIO, VELASCO, JR., NACHURA, and THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, Respondents. PERALTA, JJ.

Promulgated:

September 11, 2009 x-----------------------------------------------------x

DECISION

PERALTA, J.:

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898, entitled People of the Philippines, Plaintiff versus Carolina R. Javier, Accused, seeking to nullify respondent Sandiganbayan's: (1) Order dated November 14, 2000 in Criminal Case No. 25867, which denied her Motion to Quash Information; (2) Resolution dated January 17, 2001 in Criminal Case No. 25898, which denied her Motion for Reconsideration and Motion to Quash Information; and (3) Order dated February 12, 2001, declaring that a motion for reconsideration in Criminal Case No. 25898 would be superfluous as the issues are fairly simple and straightforward. The factual antecedents follow. On June 7, 1995, Republic Act (R.A.) No. 8047, or otherwise known as the Book Publishing Industry Development Act, was enacted into law. Foremost in its policy is the State's goal in promoting the continuing development of the book publishing industry, through the active participation of the private sector, to ensure an adequate supply of affordable, quality-produced books for the domestic and export market. To achieve this purpose, the law provided for the creation of the National Book Development Board (NBDB or the Governing Board, for brevity), which shall be under the administration and supervision of the Office of the President. The Governing Board shall be composed of eleven (11) members who shall be appointed by the President of the Philippines, five (5) of whom shall come from the government, while the remaining six (6) shall be chosen from the nominees of organizations of private book publishers, printers, writers, book industry related activities, students and the private education sector.

On February 26, 1996, petitioner was appointed to the Governing Board as a private sector representative for a term of one (1) year. During that time, she was also the President of the Book Suppliers Association of the Philippines (BSAP). She was on a hold-over capacity in the following year. On September 14, 1998, she was again appointed to the same position and for the same period of one (1) year. Part of her functions as a member of the Governing Board is to attend book fairs to establish linkages with international book publishing bodies. On September 29, 1997, she was issued by the Office of the President a travel authority to attend the Madrid International Book Fair in Spain on October 812, 1997. Based on her itinerary of travel, she was paid P139,199.001 as her travelling expenses. Unfortunately, petitioner was not able to attend the scheduled international book fair. On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to immediately return/refund her cash advance considering that her trip was canceled. Petitioner, however, failed to do so. On July 6, 1998, she was issued a Summary of Disallowances from which the balance for settlement amounted to P220,349.00. Despite said notice, no action was forthcoming from the petitioner. On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the NBDB, filed with the Ombudsman a complaint against petitioner for malversation of public funds and properties. She averred that despite the cancellation of the foreign trip, petitioner failed to liquidate or return to the NBDB her cash advance within sixty (60) days from date of arrival, or in this case from the date of cancellation of the trip, in accordance with government accounting and auditing rules and regulations. Dr. Apolonio further charged petitioner with violation of Republic Act (R.A.) No. 6713 2 for failure to file her Statement of Assets and Liabilities. The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of R.A. No. 3019, as amended, and recommended the filing of the corresponding information. It, however, dismissed for insufficiency of evidence, the charge for violation of R.A. No. 6713. In an Information dated February 18, 2000, petitioner was charged with violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit: That on or about October 8, 1997, or for sometime prior or subsequent thereto, in the City of Quezon, Philippines and within the jurisdiction of this Honorable Court, the aforenamed accused, a public officer, being then a member of the governing Board of the National Book Development Board (NBDB), while in the performance of her official and administrative functions, and acting with evident bad faith or gross inexcusable negligence, did then and there willfully, unlawfully and criminally, without any justifiable cause, and despite due demand by the Resident Auditor and the Executive Director of NBDB, fail and refuse to return and/or liquidate her cash advances intended for official travel abroad which did not materialize, in the total amount of P139,199.00 as of September 23, 1999, as required under EO No. 248 and Sec. 5 of COA Circular No. 97-002 thereby causing damage and undue injury to the Government. CONTRARY TO LAW. The case was docketed as Criminal Case No. 25867 and raffled to the First Division. Meanwhile, the Commission on Audit charged petitioner with Malversation of Public Funds, as defined and penalized under Article 217 of the Revised Penal Code, for not liquidating the cash advance granted to her in connection with her supposed trip to Spain. During the conduct of the preliminary investigation, petitioner was required to submit her counter-affidavit but she failed to do so. The Ombudsman found probable cause to indict petitioner for the crime charged and recommended the filing of the corresponding information against her. Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan, which was docketed as Criminal Case No. 25898, and raffled to the Third Division, the accusatory portion of which reads: That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board and as such, is accountable for the public funds she received as cash advance in connection with her trip to Spain from October 8-12, 1997, per LBP Check

1 2

No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty. Thereafter, petitioner delivered to the First Division the money subject of the criminal cases, which amount was deposited in a special trust account during the pendency of the criminal cases. Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3, 2000, petitioner filed with the same Division a Motion for Consolidation of Criminal Case No. 25898 with Criminal Case No. 25867, pending before the First Division. On July 6, 2000, the People filed an Urgent Ex-Parte Motion to Admit Amended Information in Criminal Case No. 25898, which was granted. Accordingly, the Amended Information dated June 28, 2000 reads as follows: That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board equated to Board Member II with a salary grade 28 and as such, is accountable for the public funds she received as case advance in connection with her trip to Spain from October 8-12, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW In its Resolution dated October 5, 2000, the Third Division ordered the consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. On October 10, 2000, petitioner filed a Motion to Quash Information, averring that the Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as the information did not allege that she is a public official who is classified as Grade 27 or higher. Neither did the information charge her as a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction. She also averred that she is not a public officer or employee and that she belongs to the Governing Board only as a private sector representative under R.A. No. 8047, hence, she may not be charged under R.A. No. 3019 before the Sandiganbayan or under any statute which covers public officials. Moreover, she claimed that she does not perform public functions and is without any administrative or political power to speak of that she is serving the private book publishing industry by advancing their interest as participant in the government's book development policy. In an Order dated November 14, 2000, the First Division denied the motion to quash with the following disquisition: The fact that the accused does not receive any compensation in terms of salaries and allowances, if that indeed be the case, is not the sole qualification for being in the government service or a public official. The National Book Development Board is a statutory government agency and the persons who participated therein even if they are from the private sector, are public officers to the extent that they are performing their duty therein as such. Insofar as the accusation is concerned herein, it would appear that monies were advanced to the accused in her capacity as Director of the National Book Development Board for purposes of official travel. While indeed under ordinary circumstances a member of the board remains a private individual, still when that individual is performing her functions as a member of the board or when that person receives benefits or when the person is supposed to travel abroad and is given government money to effect that travel, to that extent the private sector representative is a public official performing public functions; if only for that reason, and not even considering situation of her being in possession of public funds even as a private individual for which she would also covered by provisions of the Revised Penal Code, she is properly charged before this Court.

On November 15, 2000, the First Division accepted the consolidation of the criminal cases against petitioner and scheduled her arraignment on November 17, 2000, for Criminal Case No. 25898. On said date, petitioner manifested that she is not prepared to accept the propriety of the accusation since it refers to the same subject matter as that covered in Criminal Case No. 25867 for which the Sandiganbayan gave her time to file a motion to quash. On November 22, 2000, petitioner filed a Motion to Quash the Information in Criminal Case No. 25898, by invoking her right against double jeopardy. However, her motion was denied in open court. She then filed a motion for reconsideration. On January 17, 2001, the Sandiganbayan issued a Resolution denying petitioners motion with the following disquisition: The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as amended so provides, thus: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; xxxx The offense is office-related because the money for her travel abroad was given to her because of her Directorship in the National Book Development Board. Furthermore, there are also allegations to hold the accused liable under Article 222 of the Revised Penal Code which reads: Art. 222. Officers included in the preceding provisions. The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached , seized or deposited by public authority, even if such property belongs to a private individual. Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the ground of litis pendencia is denied since in this instance, these two Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of which precludes prosecution of the other. Petitioner hinges the present petition on the ground that the Sandiganbayan has committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the AntiGraft Law and the Revised Penal Code on malversation of public funds. She advanced the following arguments in support of her petition, to wit: first, she is not a public officer, and second, she was being charged under two (2) informations, which is in violation of her right against double jeopardy. A motion to quash Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information. Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash. Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single action. The above general rule, however admits of several exceptions, one of which is when the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper

venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. To substantiate her claim, petitioner maintained that she is not a public officer and only a private sector representative, stressing that her only function among the eleven (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for the crimes imputed against her, and in turn, she is outside the jurisdiction of the Sandiganbayan. The NBDB is the government agency mandated to develop and support the Philippine book publishing industry. It is a statutory government agency created by R.A. No. 8047, which was enacted into law to ensure the full development of the book publishing industry as well as for the creation of organization structures to implement the said policy. To achieve this end, the Governing Board of the NBDB was created to supervise the implementation. The Governing Board was vested with powers and functions, to wit: a) assume responsibility for carrying out and implementing the policies, purposes and objectives provided for in this Act; b) formulate plans and programs as well as operational policies and guidelines for undertaking activities relative to promoting book development, production and distribution as well as an incentive scheme for individual authors and writers; c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and especially authors are paid justly and promptly royalties due them for reproduction of their works in any form and number and for whatever purpose; d) conduct or contract research on the book publishing industry including monitoring, compiling and providing data and information of book production; e) provide a forum for interaction among private publishers, and, for the purpose, establish and maintain liaison will all the segments of the book publishing industry; f) ask the appropriate government authority to ensure effective implementation of the National Book Development Plan; g) promulgate rules and regulations for the implementation of this Act in consultation with other agencies concerned, except for Section 9 hereof on incentives for book development, which shall be the concern of appropriate agencies involved; h) approve, with the concurrence of the Department of Budget and Management (DBM), the annual and supplemental budgets submitted to it by the Executive director; i) own, lease, mortgage, encumber or otherwise real and personal property for the attainment of its purposes and objectives; j) enter into any obligation or contract essential to the proper administration of its affairs, the conduct of its operations or the accomplishment of its purposes and objectives; k) receive donations, grants, legacies, devices and similar acquisitions which shall form a trust fund of the Board to accomplish its development plans on book publishing; l) import books or raw materials used in book publishing which are exempt from all taxes, customs duties and other charges in behalf of persons and enterprises engaged in book publishing and its related activities duly registered with the board; m) promulgate rules and regulations governing the matter in which the general affairs of the Board are to be exercised and amend, repeal, and modify such rules and regulations whenever necessary; n) recommend to the President of the Philippines nominees for the positions of the Executive Officer and Deputy Executive Officer of the Board; o) adopt rules and procedures and fix the time and place for holding meetings: Provided, That at least one (1) regular meeting shall be held monthly; p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other related activities on book development such as indigenous authorship, intellectual property rights, use of alternative materials for printing, distribution and others; and q) exercise such other powers and perform such other duties as may be required by the law. A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. 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.

Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this case, the government aimed to enhance the book publishing industry as it has a significant role in the national development. Hence, the fact that she was appointed from the public sector and not from the other branches or agencies of the government does not take her position outside the meaning of a public office. She was appointed to the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book publishing industry. Moreover, the Court is not unmindful of the definition of a public officer pursuant to the Anti-Graft Law, which provides that a public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government. Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year that does not make her private person exercising a public function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer. On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer. Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public officer who takes part in the performance of public functions in the government whether as an employee, agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of several rules and regulations implementing R.A. No. 8047. She was supposed to represent the country in the canceled book fair in Spain. In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is whether, as a public officer, petitioner is within the jurisdiction of the Sandiganbayan. Presently, the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other known as the AntiGraft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: xxxx (2) Members of Congress and officials thereof classified as Grade Grade '27' and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade Grade '27' and higher under the Compensation and Position Classification Act of 1989. Notably, the Director of Organization, Position Classification and Compensation Bureau, of the Department of Budget and management provided the following information regarding the compensation and position classification and/or rank equivalence of the member of the Governing Board of the NBDB, thus: Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and nine (9) Members, four (4) of whom are exofficio and the remaining five (5) members represent the private sector. The said five members of the Board do not receive any salary and as such their position are not classified and are not assigned any salary grade. For purposes however of determining the rank equivalence of said positions, notwithstanding that they do not have any salary grade assignment, the same may be equated to Board Member II, SG-28. Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to the employees classified as SG-28, included in the phrase all other national and local officials classified as Grade 27' and higher under the Compensation and Position Classification Act of 1989. Anent the issue of double jeopardy, We can not likewise give in to the contentions advanced by petitioner. She argued that her right against double jeopardy was violated when the Sandiganbayan denied her motion to quash the two informations filed against her. We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019 and RPC, respectively. It is elementary that for double jeopardy to attach, the case against the accused must have been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon valid information sufficient in form and substance and the accused pleaded to the charge.3[37] In the instant case, petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law. She was not yet arraigned in the criminal case for malversation of public funds because she had filed a motion to quash the latter information. Double jeopardy could not, therefore, attach considering that the two cases remain pending before the Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases against her. It is well settled that for a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent. The third and fourth requisites are not present in the case at bar. In view of the foregoing, We hold that the present petition does not fall under the exceptions wherein the remedy of certiorari may be resorted to after the denial of one's motion to quash the information. And even assuming that petitioner may avail of such remedy, We still hold that the Sandiganbayan did not commit grave abuse of discretion amounting to lack of or in excess of jurisdiction. WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of the Sandiganbayan are AFFIRMED. Costs against petitioner.

SO ORDERED. G.R. No. 116033 February 26, 1997

ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C. BATAUSA, respondents. PANGANIBAN, J.: Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of public funds as a principal after the said individual had been designated by the Bureau of Internal Revenue as a custodian of distrained property? Did such accused become a public officer and therefore subject to the graft court's jurisdiction as a consequence of such designation by the BIR? These are the main questions in the instant petition for review of Respondent Sandiganbayan's Decision 1 in Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of malversation of public funds and property, and Resolution 2 dated June 20, 1994, denying his motion for new trial or reconsideration thereof. The Facts Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt and ore." 3 His services were contracted by the Paper Industries Corporation of the Philippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the former's premises. 4 From this set of circumstances arose the present controversy. . . . It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed to the Regional Director (Jose Batausa) or his authorized representative of Revenue Region 10, Butuan City commanding the latter to distraint the goods, chattels or effects and other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the property in his possession owned by taxpayer Ancla. The Warrant of Garnishment was received by accused Azarcon on June 17, 1985. 5 Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under Authority of the National Internal Revenue," assumed the undertakings specified in the receipt the contents of which are reproduced as follows: (I), the undersigned, hereby acknowledge to have received from Amadeo V. San Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines, the following described goods, articles, and things: Kind of property Isuzu dump truck Motor number E120-229598 Chassis No. SPZU50-1772440 Number of CXL 6 Color Blue Owned By Mr. Jaime Ancla the same having been this day seized and left in (my) possession pending investigation by the Commissioner of Internal Revenue or his duly authorized representative. (I) further promise that (I) will faithfully keep, preserve, and, to the best of (my) ability, protect said goods, articles, and things seized from defacement, demarcation, leakage, loss, or destruction in any manner; that (I) will neither alter nor remove, nor permit others to alter or remove or dispose of the same in any manner without the express authority of the Commissioner of Internal Revenue; and that (I) will produce and deliver all of said goods, articles, and things upon the order of any court of the Philippines, or upon demand of the Commissioner of Internal Revenue or any authorized officer or agent of the Bureau of Internal Revenue. 6 Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR's Regional Director for Revenue Region 10 B, Butuan City stating that . . . while I have made representations to retain possession of the property and signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease his operations with us. This is evidenced by the fact that sometime in August, 1985 he surreptitiously withdrew his equipment from my custody. . . . In this connection, may I therefore formally inform you that it is my desire to immediately relinquish whatever

responsibilities I have over the above-mentioned property by virtue of the receipt I have signed. This cancellation shall take effect immediately. . . . 7 Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken out of the PICOP concession. By the time the order to bar the truck's exit was given, however, it was too late. 8 Regional Director Batausa responded in a letter dated May 27, 1986, to wit: An analysis of the documents executed by you reveals that while you are (sic) in possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment which you have signed, obliged and committed to surrender and transfer to this office. Your failure therefore, to observe said provisions does not relieve you of your responsibility. 9 Thereafter, the Sandiganbayan found that On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue Region 10 B, Butuan City, sent a progress report to the Chief of the Collection Branch of the surreptitious taking of the dump truck and that Ancla was renting out the truck to a certain contractor by the name of Oscar Cueva at PICOP (Paper Industries Corporation of the Philippines, the same company which engaged petitioner's earth moving services), Mangagoy, Surigao del Sur. She also suggested that if the report were true, a warrant of garnishment be reissued against Mr. Cueva for whatever amount of rental is due from Ancla until such time as the latter's tax liabilities shall be deemed satisfied. . . However, instead of doing so, Director Batausa filed a letter-complaint against the (herein Petitioner) and Ancla on 22 January 1988, or after more than one year had elapsed from the time of Mrs. Calo's report. 10 Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to the Office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayan prosecutor and granted authority to conduct preliminary investigation on August 22, 1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado Vasquez. 11 Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the Sandiganbayan with the crime of malversation of public funds or property under Article 217 in relation to Article 222 of the Revised Penal Code (RPC) in the following Information 12 filed on January 12, 1990, by Special Prosecution Officer Victor Pascual: That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo L. Azarcon, a private individual but who, in his capacity as depository/administrator of property seized or deposited by the Bureau of Internal Revenue, having voluntarily offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized to be such under the authority of the Bureau of Internal Revenue, has become a responsible and accountable officer and said motor vehicle having been seized from Jaime C. Ancla in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59) became a public property and the value thereof as public fund, with grave abuse of confidence and conspiring and confederating with said Jaime C. Ancla, likewise, a private individual, did then and there wilfully, (sic) unlawfully and feloniously misappropriate, misapply and convert to his personal use and benefit the aforementioned motor vehicle or the value thereof in the aforestated amount, by then and there allowing accused Jaime C. Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority, consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage and prejudice of the government in the amount of P80,831.59 in a form of unsatisfied tax liability. CONTRARY TO LAW. The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging that: (1) the petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public officer, hence a doubt exists as to why he was being charged with malversation under Article 217 of the Revised Penal Code. 13 The Sandiganbayan granted the motion for reinvestigation on May 22, 1991. 14 After the reinvestigation, Special Prosecution

Officer Roger Berbano, Sr., recommended the "withdrawal of the information"

16

15

but was "overruled by the Ombudsman."

A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the Sandiganbayan did not have jurisdiction over the person of the petitioner since he was not a public officer. 17 On May 18, 1992; the Sandiganbayan denied the motion. 18 When the prosecution finished presenting its evidence, the petitioner then filed a motion for leave to file demurrer to evidence which was denied on November 16, 1992, "for being without merit." 19 The petitioner then commenced and finished presenting his evidence on February 15, 1993. The Respondent Court's Decision On March 8, 1994, Respondent Sandiganbayan 20 rendered a Decision, 21 the dispositive portion of which reads: WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond reasonable doubt as principal of Malversation of Public Funds defined and penalized under Article 217 in relation to Article 222 of the Revised Penal Code and, applying the Indeterminate Sentence Law, and in view of the mitigating circumstance of voluntary surrender, the Court hereby sentences the accused to suffer the penalty of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal. To indemnify the Bureau of Internal Revenue the amount of P80,831.59; to pay a fine in the same amount without subsidiary imprisonment in case of insolvency; to suffer special perpetual disqualification; and, to pay the costs. Considering that accused Jaime Ancla has not yet been brought within the jurisdiction of this Court up to this date, let this case be archived as against him without prejudice to its revival in the event of his arrest or voluntary submission to the jurisdiction of this Court. SO ORDERED. Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration on March 23, 1994, which was denied by the Sandiganbayan in its Resolution 23 dated December 2, 1994. Hence, this petition. The Issues The petitioner submits the following reasons for the reversal of the Sandiganbayan's assailed Decision and Resolution: I. The Sandiganbayan does not have jurisdiction over crimes committed solely by private individuals. II. In any event, even assuming arguendo that the appointment of a private individual as a custodian or a depositary of distrained property is sufficient to convert such individual into a public officer, the petitioner cannot still be considered a public officer because: [A] There is no provision in the National Internal Revenue Code which authorizes the Bureau of Internal Revenue to constitute private individuals as depositaries of distrained properties. [B] His appointment as a depositary was not by virtue of a direct provision of law, or by election or by appointment by a competent authority.

III. No proof was presented during trial to prove that the distrained vehicle was actually owned by the accused Jaime Ancla; consequently, the government's right to the subject property has not been established. IV. The procedure provided for in the National Internal Revenue Code concerning the disposition of distrained property was not followed by the B.I.R., hence the distraint of personal property belonging to Jaime C. Ancla and found allegedly to be in the possession of the petitioner is therefore invalid. V. The B.I.R. has only itself to blame for not promptly selling the distrained property of accused Jaime C. Ancla in order to realize the amount of back taxes owed by Jaime C. Ancla to the Bureau. 24 In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject matter of the controversy. Corollary to this is the question of whether petitioner can be considered a public officer by reason of his being designated by the Bureau of Internal Revenue as a depositary of distrained property. The Court's Ruling The petition is meritorious. Jurisdiction of the Sandiganbayan It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction or not, the provisions of the law should be inquired into." 25 Furthermore, "the jurisdiction of the court must appear clearly from the statute law or it will not be held to exist. It cannot be presumed or implied." 26 And for this purpose in criminal cases, "the jurisdiction of a court is determined by the law at the time of commencement of the action." 27 In this case, the action was instituted with the filing of this information on January 12, 1990; hence, the applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code; (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. xxx xxx xxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees. xxx xxx xxx

The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction. Azarcon: A Public Officer or A Private Individual? The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of the RPC determines who are public officers: Who are public officers. For the purpose of applying the provisions of this and the preceding titles of the book, any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer. Thus, (to) be a public officer, one must be (1) Taking part in the performance of public functions in the government, or Performing in said Government or any of its branches public duties as an employee, agent, or subordinate official, of any rank or class; and (2) That his authority to take part in the performance of public functions or to perform public duties must be a. by direct provision of the law, or b. by popular election, or c. by appointment by competent authority. 28 Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the BIR, commenced to take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election. The next logical query is whether petitioner's designation by the BIR as a custodian of distrained property qualifies as appointment by direct provision of law, or by competent authority. 29 We answer in the negative. The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon who was in possession thereof to sign a pro forma receipt for it, effectively "designated" petitioner a depositary and, hence, citing U.S. vs. Rastrollo, 30 a public officer. 31 This is based on the theory that (t)he power to designate a private person who has actual possession of a distrained property as a depository of distrained property is necessarily implied in the BIR's power to place the property of a delinquent tax payer (sic) in distraint as provided for under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the National Internal Revenue Code, (NIRC) . . . . 32 We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts therein are not identical, similar or analogous to those obtaining here. While the cited case involved a judicial deposit of the proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt with the BIR's administrative act of effecting constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which was received by Petitioner Azarcon. In the cited case, it was clearly within the scope of that court's jurisdiction and judicial power to constitute the judicial deposit and give "the depositary a character equivalent to that of a public official." 33 However, in the instant case, while the BIR had authority to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer.

It is axiomatic in our constitutional framework, which mandates a limited government, that its branches and administrative agencies exercise only that power delegated to them as "defined either in the Constitution or in legislation or in both." 34 Thus, although the "appointing power is the exclusive prerogative of the President, . . ." 35 the quantum of powers possessed by an administrative agency forming part of the executive branch will still be limited to that "conferred expressly or by necessary or fair implication" in its enabling act. Hence, "(a)n administrative officer, it has been held, has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof." 36 Corollarily, implied powers "are those which are necessarily included in, and are therefore of lesser degree than the power granted. It cannot extend to other matters not embraced therein, nor are not incidental thereto." 37 For to so extend the statutory grant of power "would be an encroachment on powers expressly lodged in Congress by our Constitution." 38 It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive distraint by requiring "any person" to preserve a distrained property, thus: The constructive distraint of personal property shall be effected by requiring the taxpayer or any person having possession or control of such property to sign a receipt covering the property distrained and obligate himself to preserve the same intact and unaltered and not to dispose of the same in any manner whatever without the express authority of the Commissioner. However, we find no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIR's power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint him as a public officer. The prosecution argues that "Article 222 of the Revised Penal Code . . . defines the individuals covered by the term 'officers' under Article 217 39 . . ." of the same Code. 40 And accordingly, since Azarcon became "a depository of the truck seized by the BIR" he also became a public officer who can be prosecuted under Article 217 . . . ." 41 The Court is not persuaded. Article 222 of the RPC reads: Officers included in the preceding provisions. The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual. "Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice." 42 This is particularly observed in the interpretation of penal statutes which "must be construed with such strictness as to carefully safeguard the rights of the defendant . . . ." 43 The language of the foregoing provision is clear. A private individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed a public officer. After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously charged before and convicted by Respondent Sandiganbayan which had no jurisdiction over them. The Sandiganbayan's taking cognizance of this case is of no moment since "(j)urisdiction cannot be conferred by . . . erroneous belief of the court that it had jurisdiction." 44 As aptly and correctly stated by the petitioner in his memorandum: From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual when he agreed to act as depositary of the garnished dump truck. Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan for malversation of public funds or property, the prosecution was in fact charging two private individuals without any public officer being similarly charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore all the proceedings taken below as well as the Decision rendered by Respondent Sandiganbayan, are null and void for lack of jurisdiction. 45 WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET ASIDE and declared NULL and VOID for lack of jurisdiction. No costs. SO ORDERED.

[G.R. No. 162059, January 22, 2008] HANNAH EUNICE D. SERANA, G.R. No. 162059 Petitioner, VS. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. DECISION REYES, R.T., J.: CAN the Sandiganbayan try a government scholaran iskolar ng bayan a** accused, along with her brother, of swindling government fundsccused of being the swindler ng bayan? MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan? The jurisdictional question is posed in this petition for Certiorari with Prayer for the Issuance of Temporary Restraining Order or Preliminary Injunction certiorari assailing the Resolutions[1] of the Sandiganbayan, Fifth Division, denying petitioners motion to quash the information and herdenying petitioners motion for reconsideration. The Antecedents Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu (UP). A student of a state university is known as a government scholar. She was appointed by then President Joseph Estrada on December 21, 1999 as a student regent of UP, to serve a one-year term starting January 1, 2000 and ending on December 31, 2000. In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex in UP Diliman. [2] On September 4, 2000, petitioner, with her siblings and relatives, registered with the Securities and Exchange Commission the Office of the Student Regent Foundation, Inc. (OSRFI).[3] One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex.[4] President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the funds, according to the information, wais disputed the Office of the President. The renovation of Vinzons Hall Annex failed to materialize.[5] The succeeding student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance of student councils within the state university, consequently filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman.[6] On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her brother Jade Ian D. Serana forof estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan.[7] The Information against her reads: The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as amended committed as follows: That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being then the Student Regent of the University of the Philippines, Diliman, Quezon City, while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government by falsely and fraudulently representing to former President Joseph Ejercito Estrada that the renovation of the Vinzons Hall of the University of the Philippines will be renovated and renamed as President Joseph Ejercito Estrada Student Hall, and for which purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and misappropriated for their personal use and benefit, and despite repeated demands made upon the accused for them to return aforesaid amount, the said accused failed and refused to do so to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. (Underscoring supplied)

Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any jurisdiction over the offense charged or over her person, in her capacity as UP student regent. Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction.[8] It has no jurisdiction over the crime of estafa.[9] It only has jurisdiction over crimes covered by Title VII, Chapter II, Section 2 (Crimes Committed by Public Officers), Title VII, Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the Sandiganbayans jurisdiction. ShePetitioner also arguedreasoned that it was President Estrada, and not the government, that was duped. Even assuming that she received the P15,000,000.00, that amount came from Estrada, and not from the coffers of the government.[10] Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. AShe claimed that as a student regent, she was not a public officer since she merely represented her peers, in contrast to the other regents whothat held their positions in an ex officio capacity. She addsed that she was a simple student and did not receive any salary as a student regent. Petitioner She further contended also claimed that she had no power or authority to receive monies or funds. She claimed such power was vested with the Board of Regents (BOR) as a whole. Hence, Since it was not alleged in the information that it was among her functions or duties to receive funds, or that the crime was committed in connection with her official functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller v. Sandiganbayan.[11] The Ombudsman opposed the motion.[12] It disputed petitioners interpretation of the law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch -all phrase in relation to office, thus, the Sandiganbayan has jurisdiction over the charges against petitioner. In the same breath, the prosecution countered that the source of the money is a matter of defense. It should be threshed out during a full-blown trial.[13] According to the Ombudsman, petitioner, despite her protestations, iwas a public officer. As a member of the BOR, she hads the general powers of administration and exerciseds the corporate powers of UP. Based on Mechems definition of a public office, petitioners stance that she was not compensated, hence, thus not a public officer, is erroneous. Compensation is not an essential part of public office. Parenthetically, compensation has been interpreted to include allowances. By this definition, petitioner was compensated.[14] Sandiganbayan Disposition In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioners motion for lack of merit.[15] It ratiocinated: The focal point in controversy is the jurisdiction of the Sandiganbayan over this case. It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has jurisdiction over other offenses committed by public officials and employees in relation to their office. From this provision, there is no single doubt that this Court has jurisdiction over the offense of estafa committed by a public official in relation to his office. Accused-movants claim that being merely a member in representation of the student body, she was never a public officer since she never received any compensation nor does she fall under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of Republic Act No. 8249 which provides: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: (A) x x x (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or

educational institutions or foundations. (Italics supplied) It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of their salary grades, because the primordial consideration in the inclusion of these officials is the nature of their responsibilities and functions. Is accused-movant included in the contemplated provision of law? A meticulous review of the existing Charter of the University of the Philippines reveals that the Board of Regents, to which accused-movant belongs, exclusively exercises the general powers of administration and corporate powers in the university, such as: 1) To receive and appropriate to the ends specified by law such sums as may be provided by law for the support of the university; 2) To prescribe rules for its own government and to enact for the government of the university such general ordinances and regulations, not contrary to law, as are consistent with the purposes of the university; and 3) To appoint, on recommendation of the President of the University, professors, instructors, lecturers and other employees of the University; to fix their compensation, hours of service, and such other duties and conditions as it may deem proper; to grant to them in its discretion leave of absence under such regulations as it may promulgate, any other provisions of law to the contrary notwithstanding, and to remove them for cause after an investigation and hearing shall have been had. It is well-established in corporation law that the corporation can act only through its board of directors, or board of trustees in the case of non-stock corporations. The board of directors or trustees, therefore, is the governing body of the corporation. It is unmistakably evident that the Board of Regents of the University of the Philippines is performing functions similar to those of the Board of Trustees of a non-stock corporation. This draws to fore the conclusion that being a member of such board, accused-movant undoubtedly falls within the category of public officials upon whom this Court is vested with original exclusive jurisdiction, regardless of the fact that she does not occupy a position classified as Salary Grade 27 or higher under the Compensation and Position Classification Act of 1989. Finally, this court finds that accused-movants contention that the same of P15 Million was received from former President Estrada and not from the coffers of the government, is a matter a defense that should be properly ventilated during the trial on the merits of this case.[16] On November 19, 2003, petitioner filed a motion for reconsideration.[17] The motion was denied with finality in a Resolution dated February 4, 2004.[18] Issue Petitioner is now before this Court, contending that THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION.[19] In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government. Our Ruling The petition cannot be granted. Preliminarily, the denial of a motion to quash is not correctible by certiorari. We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash.[20] Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed.[21] The evident reason for this rule is to avoid multiplicity of appeals in a single action.[22] In Newsweek, Inc. v. Intermediate Appellate Court,[23] the Court clearly illustrated explained and illustrated the rule and the exceptions, thus:

As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal lies from a judgment of acquittal. This general rule is subject to certain exceptions. If the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. The following are a few examples of the exceptions to the general rule. In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack of jurisdiction over the subject matter, this Court granted the petition for certiorari and prohibition against the City Court of Manila and directed the respondent court to dismiss the case. In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack of jurisdiction over the offense, this Court granted the petition for prohibition and enjoined the respondent court from further proceeding in the case. In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on improper venue, this Court granted the petition for prohibition and enjoined the respondent judge from taking cognizance of the case except to dismiss the same. In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by prior judgment, this Court granted the petition for certiorari and directed the respondent judge to dismiss the case. In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on the Statute of Frauds, this Court granted the petition for certiorari and dismissed the amended complaint. In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the motion to quash based on double jeopardy was denied by respondent judge and ordered him to desist from further action in the criminal case except to dismiss the same. In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on prescription was set aside on certiorari and the criminal case was dismissed by this Court.[24] We do not find the Sandiganbayan to have committed a grave abuse of discretion. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as amended, not by R.A. No. 3019, as amended. We first address petitioners contention that the jurisdiction of the Sandiganbayan is determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan.[25] She repeats the reference in the instant petition for certiorari[26] and in her memorandum of authorities.[27] We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears stressing that petitioner repeated this claim twice despite corrections made by the Sandiganbayan.[28] Her claim has no basis in law. It is P.D. No.1606, as amended, rather than R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.[29] P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.[30]

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: "_____ (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; "_____(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; "_____(c ) Officials of the diplomatic service occupying the position of consul and higher; " _____(d) Philippine army and air force colonels, naval captains, and all officers of higher rank; "_____(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintended or higher; " _____(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; " _____(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. " _____(2) Members of Congress and officials thereof classified as Grade Grade '27' and up under the Compensation and Position Classification Act of 1989; " _____(3) Members of the judiciary without prejudice to the provisions of the Constitution; " _____(4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and " _____(5) All other national and local officials classified as Grade Grade '27' and higher under the Compensation and Position Classification Act of 1989. B. Other offenses of felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued
in 1986. " _____In cases where none of the accused are occupying positions corresponding to Salary Grade Grade '27' or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. " _____The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or order of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided.

" _____The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. " _____The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may thereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. " _____In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. " _____Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall, at all times, be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned." Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.[31] Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan.[32] R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition on private individuals. We quote: Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word close personal relation shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties. Sandiganbayan has jurisdiction over the offense of estafa. Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes cognizable byover which the Sandiganbayan has jurisdiction. We note that in hoisting this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision. The rule is well-established in this jurisdiction that statutes should receive a sensible construction so as to avoid an unjust or an absurd conclusion.[33] Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa. Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at the

effect contemplated by the legislature.[34] The intention of the legislator must be ascertained from the whole text of the law and every part of the act is to be taken into view.[35] In other words, petitioners interpretation lies in direct opposition to the rule that a statute must be interpreted as a whole under the principle that the best interpreter of a statute is the statute itself.[36] Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang mismong batas. Section 4(B) of P.D. No. 1606 reads: B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office. In Perlas, Jr. v. People,[37] the Court had occasion to explain that the Sandiganbayan has jurisdiction over an indictment for estafa versus a director of the National Parks Development Committee, a government instrumentality. The Court held then: The National Parks Development Committee was created originally as an Executive Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981). Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3). The Sandiganbayans jurisdiction over estafa was reiterated with greater firmness in Bondoc v. Sandiganbayan.[38] Pertinent parts of the Courts ruling in Bondoc read: Furthermore, it is not legally possible to transfer Bondocs cases to the Regional Trial Court, for the simple reason that the latter would not have jurisdiction over the offenses. As already above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondocs cases and those of the government employees separately charged for the same crimes, has not altered the nature of the offenses charged, as estafa thru falsification punishable by penalties higher than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by government employees in conspiracy with private persons, including Bondoc. These crimes are within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot be taken cognizance of by the regular courts, apart from the fact that even if the cases could be so transferred, a joint trial would nonetheless not be possible. Petitioner UP student regent is a public officer. Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that We will be called upon toare required to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer.[39] The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence. In Aparri v. Court of Appeals,[40] the Court held that: 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 exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting 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 (42 Am. Jur. 881). In Laurel v. Desierto,[41] the Court adopted the definition of Mechem of a public office: 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.[42]

Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People,[43] We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.[44] Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. We find no reason to disturb the findings of the Sandiganbayan that Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation.[45] By express mandate of law, We find that petitioner is, indeed, a public officer as contemplated by P.D. No. 1606 the statute defining the jurisdiction of the Sandiganbayan. Moreover, it is well established that compensation is not an essential element of public office.[46] At most, it is merely incidental to the public office.[47] We uphold that the conclusions of the Sandiganbayan that Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer.[48] The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training.[49] Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit.[50] Petitioner is therefore a public officer by express mandate of P.D. No. 1606 and jurisprudence. The offense charged was committed in relation to public office, according to the Information. Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in relation to public office. It is axiomatic that jurisdiction is determined by the averments in the information.[51] More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash.[52] Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent.[53] In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x. (Underscoring supplied) Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground. Source of funds is a defense that should be raised during trial on the merits. It is contended anew that the amount came from President Estradas private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on. We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated

October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00). Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case.[54] A lawyer owes candor, fairness and honesty to the Court. As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented his reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to quash, the instant petition for certiorari and his memorandum, unveils the misquotation. We urge petitioners counsel to observe Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the Rules stating that a lawyer shall not misquote or misrepresent. The Court stressed the importance of this rule in Pangan v. Ramos,[55] where Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty. Ramos resorted to deception by using a name different from that with which he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may warrant suspension or disbarment.[56] We admonish petitioners counsel to be more careful and accurate in his citation. A lawyers conduct before the court should be characterized by candor and fairness.[57] The administration of justice would gravely suffer if lawyers do not act with complete candor and honesty before the courts.[58] WHEREFORE, the petition is DENIED for lack of merit DUE COURSE and DISMISSED. SO ORDERED.

G.R. No. 172602

April 16, 2009

HENRY T. GO, Petitioner, vs. THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents. RESOLUTION YNARES-SANTIAGO, J.: In its Motion for Reconsideration, respondent Office of the Special Prosecutor argues, citing Meneses v. People,1 Balmadrid v. Sandiganbayan,2 Domingo v. Sandiganbayan,3 and Singian v. Sandiganbayan,4 that private persons when conspiring with public officers may be held liable for violation of Section 3(g) of Republic Act (R.A.) No. 3019. The arguments presented by the Office of the Special Prosecutor convinced us to take a second look at the case. We maintain that to be indicted of the offense under Section 3(g) of R.A. No. 3019, the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. However, if there is an allegation of conspiracy, a private person may be held liable together with the public officer, in consonance with the avowed policy of the Anti-Graft and Corrupt Practices Act which is "to repress certain acts of public officers and private persons alike which may constitute graft or corrupt practices or which may lead thereto." In the instant case, the Information charges Vicente C. Rivera, Jr., then Secretary of the Department of Transportation and Communications, with committing the offense under Section 3(g) of R.A. No. 3019 "in conspiracy with accused HENRY T. GO, Chairman and President of Philippine International Air Terminals, Co., Inc. (PIATCO) x x x." Pursuant to our ruling in Estrada v. Sandiganbayan,5 said allegation of conspiracy is sufficient, thus: The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its particularities in the Information because conspiracy is not the gravamen of the offense charged. x x x xxxx [I]t is enough to allege conspiracy as a mode in the commission of an offense in either of the following manner: (1) by use of the word "conspire," or its derivatives or synonyms, such as confederate, connive, collude, etc; or (2) by allegation of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts.6 Thus, the allegation in the Information that accused Rivera "in conspiracy with accused HENRY T. GO" committed the alleged acts in violation of Section 3(g) of R.A. No. 3019, is sufficient in form and substance. Consequently, petitioner Go was validly charged with violation of Section 3(g) when he allegedly conspired with accused Rivera. However, we note that in the Decision of the Sandiganbayan dated March 18, 2008, Vicente C. Rivera, Jr. was acquitted and the case against him dismissed. The dispositive portion of the Decision states: WHEREFORE, in view of the foregoing, accused Vicente C. Rivera, Jr.s "Motion to Dismiss by way of Demurrer to Evidence", dated September 8, 2007, is hereby GRANTED. Criminal Case No. 28092 for violation of Section 3(g) of Republic Act No. 3019, is ordered DISMISSED and accused VICENTE C. RIVERA, JR., is hereby ACQUITTED of the offense charged. The cash bond posted by the accused to secure his provisional liberty is hereby ordered returned to him, subject to the usual accounting and auditing procedures. The Hold Departure Order issued by this Court against the accused dated February 15, 2005, is lifted and set aside.

There can be no pronouncement as to civil liability as the facts from which the same might arise were not proven in the case at bar. SO ORDERED. From the said Decision, the Office of the Special Prosecutor filed a Petition for Certiorari before this Court which was docketed as G.R. No. 185045 and captioned as People v. Sandiganbayan and Rivera. However, on December 3, 2008, the Court dismissed the petition, viz: The Court resolves to DISMISS the petition for certiorari of the Decision and Resolution dated 18 March 2008 and 16 September 2008, respectively, of the Sandiganbayan in Criminal Case No. 28092 for failure of the petitioner to sufficiently show that any grave abuse of discretion was committed by the Sandiganbayan in rendering the challenged decision and resolution which, on the contrary, appear to be in accord with the facts and the applicable law and jurisprudence.1avvphi1 The said December 3, 2008 Resolution became final and executory and was recorded in the Book of Entries of Judgments on February 13, 2009. Based on the foregoing, it follows as a matter of course that the instant case against herein petitioner Henry T. Go should likewise be dismissed. The acquittal of Rivera means that there was no public officer who allegedly violated Section 3(g) of R.A. No. 3019. There being no public officer, it follows that a private individual such as herein petitioner Go could not be said to have conspired with such public officer. The basis for a finding of conspiracy against petitioner and Rivera has been removed; consequently, the case against Henry T. Go should likewise be dismissed. WHEREFORE, the Motion for Reconsideration (of the Resolution dated September 3, 2007) filed by the Office of the Special Prosecutor is DENIED subject to the qualification discussed in the body of the decision. The Prayer to Refer Case to the Supreme Court En Banc is likewise DENIED. The Comment/Opposition filed by petitioner Go to the said Motion for Reconsideration (of the Resolution dated September 3, 2007) With Prayer to Refer Case to the Supreme Court En Banc as well as the Manifestation and Motion are NOTED. The Sandiganbayan is hereby DIRECTED to DISMISS Criminal Case No. 28092 against petitioner Henry T. Go. SO ORDERED.

[G.R. No. 103903, September 11, 1992] MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., AND LEONARDO G. TIOZON, PETITIONERS, VS. RAUL A. DAZA, HON. CAMILO SABIO, AS SECRETARY OF THE HOUSE OF REPRESENTATIVES, MR. JOSE MARIA TUANO, AS OFFICER-IN-CHARGE, GEN. SERVICES DIVISION OF THE HOUSE OF REPRESENTATIVES, MRS. ROSALINDA G. MEDINA, AS CHIEF ACCOUNTANT OF THE HOUSE OF REPRESENTATIVES, AND THE HON. COMMISSION ON AUDIT, RESPONDENTS. RESOLUTION ROMERO, J.:

On February 18, 1992, petitioners, residents of the second Congressional District of Northern Samar filed the instant petition for prohibition seeking to disqualify respondent RaulDaza, then incumbent congressman of the same congressional district, from continuing to exercise the functions of his office, on the ground that the latter is a greencard holder and a lawful permanent resident of the United States since October 16, 1974. Petitioners allege that Mr. Daza has not, by any act or declaration, renounced his status as permanent resident, thereby violating Section 68 of Batas Pambansa Bilang 881 (Omnibus Election Code) and Section 18, Article XI of the 1987 Constitution. On February 25, 1992, we required respondents to comment. On March 13, 1992, respondents, through the Solicitor General, filed a motion for extension of time to file their comment for a period of thirty days or until April 12, 1992. Reacting to the said motion, petitioners on March 30, 1992, manifested their opposition to the 30-day extension of time stating that such extension was excessive and prayed that respondent instead be granted only 10 days to file their comment. On May 5, 1992, the Court noted the manifestation and opposition. On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a petition before the COMELEC to disqualify respondent Daza from running in the recent May 11, 1992 elections on the basis of Section 68 of the Omnibus Election Code (SPC 92-084) and that the instant petition is concerned with the unlawful assumption of office by respondent Daza from June 30, 1987 until June 30, 1992. On April 10, 1992, respondent Congressman Daza filed his comment denying the fact that he is a permanent resident of the United States; that although he was accorded a permanent residency status on October 8, 1980 as evidenced by a letter order of the District Director, US Immigration and Naturalization Service, Los Angeles, U.S.A., he had long waived his status when he returned to the Philippines on August 12, 1985. On April 13, 1992, public respondent Camilo Sabio, Secretary General of the House of Representatives, Mr. Jose Mari Tuao, as OIC of the General Services Division, Mrs. Rosalinda G. Medina, as Chief Accountant of the House of Representatives and Commission on Audit, filed their comment. They contend that if indeed Congressman Daza is a greencard holder and a permanent resident of the United States of America, then he should be removed from his position as Congressman. However, they opined that only Congressman Daza can best explain his true and correct status as a greencard holder. Until he files his comment to the petition, petitioners prayer for temporary restraining order and/or writ of preliminary injunction should not be granted. Eight (8) days later, respondent Daza, reacting to the petition before the COMELEC (SPC 92-084) and hypothesizing that the case before the COMELEC would become moot should this Court find that his permanent resident status ceased when he was granted a US non-immigrant visa, asked this Court to direct the COMELEC to dismiss SPC No. 92-084. On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the petition and required the parties to file their respective memoranda. The central issue to be resolved in this case is whether or not respondent Daza should be disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code. Petitioners insist that Congressman Daza should be disqualified from exercising the functions of his office being a permanent resident alien of the United States at the time when he filed his certificate of candidacy for the May 11, 1987 Elections. To buttress their contention, petitioners cite the recent case of Caasi v. Court of Appeals.

In support of their charge that respondent Daza is a greencard holder, petitioners presented to us a letter from the United States Department of Justice, Immigration and Naturalization Service (INS) which reads: File No. A20 968 618 Date: Nov 5, 1991 LOS914732 Geraghty, O'Loughlin and Kenney Attn: David C. Hutchinson 386 N. Wasbasha Street St. Paul, Minn. 55102-1308 SUBJECT: Daza, Raul A. Your request was received in this office on ____________; please note the paragraph(s) checked below: xxx xxx xxx 10. [XX] Other remarks: Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent Resident on Oct. 16, 1974. As far as we know subject (sic) still has his greencard. No he has not applied for citizenship. Sinerely, (sic) Sgd. District Director Form G-343 (Rev. 8-20-82)N We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is evident from the manifestation filed by petitioners dated April 6, 1992 that they seek to unseat respondent from his position as Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualification of its members. Since petitioners challenge the qualifications of Congressman Daza, the appropriate remedy should have been to file a petition to cancel respondent Daza's certificate of candidacy before the election or a quo warranto case with the House Electoral Tribunal within ten (10) days after Daza's proclamation. Third, a writ of prohibition can no longer be issued against respondent since his term has already expired. A writ of prohibition is not intended to provide for acts already consummated. Fourth, as a de facto public officer, respondent cannot be made to reimburse funds disbursed during his term of office because his acts are as valid as those of a de jure officer. Moreover, as a de facto officer, he is entitled to emoluments for actual services rendered. ACCORDINGLY, the Court Resolved to DISMISS the instant petition for being MOOT and ACADEMIC. SO ORDERED.

G.R. No. 129616

April 17, 2002

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners, vs. JULIETA MONSERATE, respondent. SANDOVAL-GUTIERREZ, J.: This petition for review on certiorari1 seeks to set aside the Decision dated June 20, 1997 of the Court of Appeals in CAG.R. No. 39670,2 declaring null and void the Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division, Ports Management Office, Philippine Ports Authority (PPA), Iloilo City. The facts are: Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier II and then as Finance Officer (SG-16) in 1980.3 In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent position of Manager II (SG-19) of the Resource Management Division, same office. The Comparative Data Sheet 4 accomplished by the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the said position, thus: "COMPARATIVE DATA SHEET OFFICE: DIVISION: POSITION: REQUIRED CS ELIG.: CANDIDATES 1. MONSERATE, JULIETA 2. ANINO, RAMON 3. TEODOSIO, APRIL 4. MORTOLA, DARIO 5. ESPINOSA, AMALIK PMO ILOILO RES. MANAGEMENT DIVISION DIVISION MANAGER CS PROF / RA 1080 ELIGIBILITY CS Prof. 1st grade PD 907 (CPA) CS Prof. Bar xxx xxx xxx xxx xxx xxx xxx TOTAL 79.5 70 67 67 63.5 59.5"

6. PERFECTO, BASCOS RA 1080

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed5 respondent to the position of Manager II (Resource Management Division). On even date, respondent assumed office and discharged the functions thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA) approved her appointment. Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per the Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board, protesting against respondent's appointment. The PPA Appeals Board, in a Resolution6 dated August 11, 1988, sustained the protest and rendered ineffective respondent's appointment based on "(1) CSC MC No. 5, s. 1988, Par. 3;7 (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;8 and (3) Civil Service Eligibility." These grounds were not explained or discussed in the Resolution, the dispositive portion of which reads:

"WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as Resources Management Division Manager of the Port Management Office of Iloilo." On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88 9 (entitled "Creation of the PPA Manager's Pool"), dated September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio A. Dayan. That Special Order excluded the name of respondent from the pool-list and placed instead the name of petitioner as Manager II, Resource Management Division. In effect, the Special Order implemented the August 11, 1988 Resolution of the PPA Appeals Board. 1wphi1.nt Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated November 2, 1988. 10 She questioned her replacement under PPA Special Order No. 479-88, claiming that the proceedings before the PPA Appeals Board were irregular because (1) she was not notified of the hearing before it; (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner Anino; 11 (3) she was not informed of the reasons behind her replacement; and (4) their Port Manager (in Iloilo City), who was then an official member of the Board, was not included in the said proceedings. On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a copy of PPA Special Order No. 492-8812 dated October 21, 1988, also issued by General Manager Dayan. This PPA Order officially reassigned her to the position of Administrative Officer (SG-15) which was petitioner Anino's former position and was lower than her previous position as Finance Officer (SG 16) before she was appointed as Division Manager. Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on her earlier appeal/request for clarification, respondent filed on November 25, 1988 a "precautionary appeal" 13 with the CSC. She manifested that as of said date (November 25), she has not yet been furnished a certified copy of the PPA Appeals Board Resolution. On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer dated October 1, 1988.14 It was also during this time when she learned that PPA General Manager Dayan had just issued petitioner's appointment dated October 21, 1988 as Manager II in the Resource Management Division effective February 1, 1988. On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner Anino's appointment and at the same time questioning the propriety of the August 11, 1988 Resolution of the PPA Appeals Board. This appeal remained pending with the CSC for more than six (6) years despite respondent's requests for early resolution. In the meantime, she assumed the position of Administrative Officer. Eventually, the CSC, in its Resolution No. 95-204315 dated March 21, 1995, dismissed respondent's appeal, thus: "It is well-established rule that an appointment, although approved by this Commission, does not become final until the protest filed against it is decided by the agency or by the Commission. Although Monserate had already assumed the position of RMD Manager II, the appointing authority may still withdraw the same if a protest is seasonably filed. This is covered by Section 19, Rule VI of the Omnibus Rules implementing EO 292 x x x. "Monserate's claim that she is more qualified than Anino is not relevant to the issue before this Commission. In cases of protest filed or appealed to the Commission, the main question to be resolved is whether or not the appointee meets the qualification standard. x x x. The Commission will not disturb the choice of the appointing authority as long as the appointee meets the qualification prescribed for the position in question." Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. 95-6640 dated October 24, 1995. In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents the PPA General Manager and petitioner Anino. On June 20, 1997, the Court of Appeals rendered a Decision16 nullifying the twin Resolutions of the CSC. It ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence and that the same was irregularly issued due to lack of proper notice to respondent with respect to the Board's proceedings. It concluded that her reassignment from the position of Manager II, Resource Management Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of her constitutional right to security of tenure and due process. The dispositive portion of the Court of Appeals' Decision reads:

"THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and October 21, 1988 (should be October 24, 1995), of the Civil service Commission; and directing the reinstatement of the petitioner to the position of Resource Management Division Manager II. "SO ORDERED." Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition. On November 30, 1997, petitioner Anino retired from the government service.17 Petitioners ascribe to the Court of Appeals the following errors: I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO SECURITY OF TENURE. II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATE'S APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR THE CSC. III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION STANDARD.18 The pivotal issue in this case is whether or not there was due process when respondent was replaced by petitioner Anino from her position as Manager II, Resource Management Division, and demoted as Administrative Officer. Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of administrative penalty, presupposes a conviction in an administrative case. Here, respondent was not charged of any administrative case. Rather, she was displaced from her position as an "aftermath of the PPA reorganization, authorized by law, the implementation of which having been carried out with utmost good faith." Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of the PPA Appeals Board which sustained petitioner Anino's timely protest against respondent's appointment. Petitioners theorize that the appointment of respondent as Resource Management Division Manager did not become final until the protest filed against her was favorably decided in her favor by the CSC. In support of this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), which provides inter alia: "SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if the appointee assumes the duties of the position and the appointee is entitled to receive the salary attached to the position. However, the appointment, together with the decision of the department head, shall be submitted to the Commission for appropriate action within 30 days from the date of its issuance, otherwise the appointment becomes ineffective thereafter. Likewise, such appointment shall become ineffective in case the protest is finally resolved against the protestee, in which case, he shall be reverted to his former position." Petitioners also contend that the head of an agency, being the appointing authority, is the one most knowledgeable to decide who can best perform the functions of the office. The appointing authority has a wide latitude of choice subject only to the condition that the appointee should possess the qualifications required by law. Consequently, "the CSC acted rightly when it did not interfere in the exercise of discretion by the PPA appointing authority, there being no evidence of grave abuse of discretion thereof or violation of the Civil Service Law and Rules." The petition is unmeritorious. In the first place, the PPA reorganization in 1988 has nothing to do with respondent's demotion from the contested position of Manager II, Resource Management Office (SG-19), to the lower position of Administrative Officer (SG-15). Antithetically, it was precisely because of the said reorganization that respondent applied to the higher position of Division Manager II. In fact, the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself

shows that respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six (6) contenders to the said post. Respondent was eventually issued a permanent appointment as such Division Manager on February 1, 1988 by then PPA General Maximo Dumlao, Jr., during which time she actually assumed office and discharged its functions. This appointment was later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the Civil Service Field Office-PPA. Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of the PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer. This is further shown by the following orders and appointments subsequently issued by then PPA General Manager Rogelio Dayan: 1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded respondent Monserate from the PPA Managers' pool-list; 2. Appointment of respondent, dated October 1, 1988, to the position of Administrative Officer; 3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned respondent to the position of Administrative Officer; and 4. Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager II, Resource Management Division, effective February 1, 1988. Therefore, contrary to petitioners' claim, respondent was demoted, not by reason of the PPA reorganization in 1988, but due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining petitioner Anino's protest against respondent's appointment. Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the PPA Appeals Board which "upholds the appointment of Ramon A. Anino as Resource Management Division Manager." But how can it uphold his appointment when he was not yet appointed then? It bears stressing that he was appointed on a much later date - October 21, 1988, or more than two (2) months after August 11, 1998 when the PPA Appeals Board Resolution was issued. Stated differently, the PPA Appeals Board could not uphold an appointment which was not yet existing. Equally questionable are the grounds for respondent's demotion stated in the August 11, 1998 Resolution: "(1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility." These grounds are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the reason for her demotion. We uphold the Court of Appeals' finding that the August 11, 1998 PPA Appeals Board Resolution was void for lack of evidence and proper notice to respondent. As aptly held by the Appellate Court: "In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the appointment of the private respondent (Ramon Anino) as Division Manager, the grounds against petitioner's (Julieta Monserate) appointment were: a) the CSC MC No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil service eligibility. "x x x "To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by evidence. Of the CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her appointment as Manager. x x x. "With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and recommendation of her appointment as Manager II, passed several committees created by the PPA. x x x. Moreover, she had a 1.9 average performance rating compared to the private respondent who only got 2.03. x x x. "On eligibility, she has a Career Service Professional eligibility while the private respondent only has a First Grade Civil Service Eligibility.

"She added that she was not aware of any proceeding on her demotion as a Division Manager. As a matter of fact, it was only upon her iniative sometime during the latter part of November, 1988 that she was able to obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution sustained the private respondent's appointment as Division Manager even if on August 11, 1988, he was not yet extended any appointment. As a matter of fact, he was appointed only on October 1, 1988 (should be October 21, 1988). "Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and void. She was never notified of any proceeding; she was not furnished either a copy of the resolution. What she received instead was a Special Order dated September 29, 1988 already ordering her demotion. She was not at all given the opportunity of defending herself before the Appeals Board. "x x x. "In the case now before us, the petitioner did not receive or was not given a copy of the August 11, 1988 Resolution of the Appeals Board. She did not even know that she was demoted until after she received a copy of the of the Special Order No. 479-88."19 From all indications, it is indubitable that substantial and procedural irregularities attended respondent's demotion from the position of Manager II, Resource Management Division, to the lower position of Administrative Officer. Indeed, her demotion, tantamount to a revocation of her appointment as Manager II, is a patent violation of her constitutional rights to security of tenure and due process. In Aquino vs. Civil Service Commission,20 this Court emphasized 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." Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service. 21 However, the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's appointment by demoting her. Respondent's security of tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power.22 Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to the said position to which her right to security of tenure had already attached. To be sure, her position as Manager II never became vacant since her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is null and void ab initio."23 We now delve on the backwages in favor of respondent. The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages. This matter becomes controversial because respondent assumed the lower position of Administrative Officer during the pendency of her protest against petitioner Anino's appointment to the contested position. Also, petitioner Anino retired from the service on November 30, 1997. In this respect, while petitioner Anino's appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency.24 A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular.25 In Monroy vs. Court of Appeals,26 this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary,27 this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus: "x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office."

In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which position she currently holds. Since then, she has been receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.1wphi1.nt WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is ordered to pay respondent Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully assumed the contested position of Manager II up to his retirement on November 30, 1997. SO ORDERED.

[G.R. No. 120295. June 28, 1996] JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents. [G.R. No. 123755. June 28, 1996] RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. DECISION PANGANIBAN, J.: The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation; (ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or (iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"? In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms. G.R. No. 123755. This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division, 1 promulgated on December 19,19952 and another Resolution of the Comelec en bane promulgated February 23, 19963 denying petitioner's motion for reconsideration. The Facts On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines," and that his Certificate of Candidacy be cancelled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution5 granting the petition with the following disposition:6 "WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is cancelled." The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second Division. The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8.dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon: Antonio H. Escudero, Jr. 51,060 Juan G. Frivaldo 73,440

RaulR.Lee Isagani P. Ocampo

53,304 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his proclamation as the dulyelected Governor of Sorsogon. In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening of June 30,1995, Lee was proclaimed governor of Sorsogon. On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted." As such, when "the said order (dated June 21, 1995) (of the Comelec) x x x was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor x x x." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor not Lee should occupy said position of governor. On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of votes, and xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of Sorsogon"; thus: "PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition. Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation. Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30,1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon. Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof." On December 26,1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition." The Issues in G.R. No. 123755 Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions":15 "First - The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition; Second- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be elected to and to hold the Office of Governor; Third - The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and

Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Governor of Sorsogon." G.R. No. 120295 This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows: 1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines"; 2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and 3. Resolution18 of the Comelec en bane, promulgated also on May 11, 1995 suspending the proclamation of, among others, Frivaldo. The Facts and the Issue The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the abovementioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder: "Section 78. Petition to deny due course or to 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 the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election." (Italics supplied.) the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law," i.e., "not later than fifteen days before the election." Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void. By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon. On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective memoranda. The Consolidated Issues From the foregoing submissions, the consolidated issues may be restated as follows: 1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when? 2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon? 3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that : said petition is not "a pre-proclamation case, an election protest or a quo warranto case"? 4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?

5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within ( the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"? The First Issue: Frivaldo's Repatriation The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this. The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus: "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 or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district 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. (b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. xxx xxx xxx

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R. A. 7160). Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects. Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that henot Lee should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship. En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects, which we shall now discuss in seriatim. First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution," adding that in her memorandum dated March 27,1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."23 This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones25 and a repeal may be

express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum based on the copy furnished us by Lee did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist."26 The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress once createdto deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well. Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 x x x (and) was approved in just one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application. Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal interest of respondent,"27 the Solicitor General explained during the oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation28 filed on April 3, 1996. On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people. So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies. Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to Public office" Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n 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; * able to read and write Filipino or any other local language or dialect." * In addition, "candidates for the position of governor x x x must be at least twenty-three (23) years of age on election day." From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day). Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo reassumed his citizenship on June 30, 1995the very day32 the term of office of governor (and other elective officials) beganhe was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giapand Li Seng Giap & Sons,33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term. But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter." And, under the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter-much less a validly registered one if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registrationnot the actual voting is the core of this "qualification." In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern and not anywhere else. Before this Court, Frivaldo has repeatedly emphasizedand Lee has not disputed that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration x x x In fact, he cast his vote in his precinct on May 8, 1995."36 So too, during the oral argument, his counsel stead-fastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8,1995.37 It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible. But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETRO ACTED to the date of the filing of his application on August 17,1994. It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is provided." But there are settled exceptions40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS. According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are "healing acts x x x curing defects and adding to the means of enforcing existing obligations x x x (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils x x x By their very nature, curative statutes are retroactive xxx (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended." On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes.43 A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C. A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship xxx" because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these womenthe right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire Philippine citizenship," because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation. The Solicitor General44 argues: "By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041). In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C. A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization.

Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially remedial and curative." In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof." 45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for -which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein. At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994? While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is tobe given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events i.e., situations and transactions existing even before the law came into being in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty. Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation. Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldohaving already renounced his American citizenship was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail.47 And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed. 48 The fact that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case. And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot. Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriatedi.e., his Filipino citizenship restored as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date.

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?"49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50 On this point, we quote from the assailed Resolution dated December 19, 1995:51 "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.52 The Second Issue: Is Lack of Citizenship a Continuing Disqualification? Lee contends that the May 1,1995 Resolution53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17,1995, no restraining order having been issued by this Honorable Court."54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines." We do not agree. It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution:55 "The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any 'final judgment' of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines.' This declaration of the Supreme Court, however, was in connection with the 1992 elections." Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held: "Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands." The Third Issue: Comelec's Jurisdiction Over The Petition in SPC No. 95-317 Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case." Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action."

This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective x x x provincial x x x officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations of which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled: "The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has been proclaimed, (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)" The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same. The Fourth Issue: Was Lee's Proclamation Valid Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons: First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, xxx just that, a second placer." In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as follows: "The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected." But such holding is qualified by the next paragraph, thus: "But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated May 9,1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case." The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was. Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety", in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor and not Leeshould be proclaimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:

"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office." Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected. The Fifth Issue: Is Section 78 of the Election Code Mandatory? In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78 of the Omnibus Election Code which reads as follows: "Section 78. Petition to deny due course or to 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 the filing of the certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election" (italics supplied.) This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996, which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus: "SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the -winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong." (Italics supplied) Refutation of Mr. Justice Davide's Dissent In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law. The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz, "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by xxx repatriation" He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings. Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R. A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory," we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295." One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even

after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict. Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status not in 1988 or 1992, but only in the 1995 elections. Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or abandonment is not a ground to lose American citizenship." Since our courts are charged only with the duty of the determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens not who are the citizens of other countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final. The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known." First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge? Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates." If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc. Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor. In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Government Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest nonretroactivity, were already taken up rather extensively earlier in this Decision. Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule! At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience. EPILOGUE In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor

impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given ' up his U. S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations. This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: "x x x (L)aws 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 (citations omitted)."67 The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this 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 antagonistic68 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 this undertaking, Lee has miserably failed. In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to reembrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice. WHEREFORE, in consideration of the foregoing: (1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED. (2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit. No costs. SO ORDERED.

G.R. No. L-24761

September 7, 1965

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. --------------------------G.R. No. L-24828 September 7, 1965

FELIPE N. AUREA and MELECIO MALABANAN, petitioners, vs. COMMISSION ON ELECTIONS, respondent. Leon G. Maquera in his own behalf as petitioner. Ramon Barrios for respondents. RESOLUTION

PER CURIAM: Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R. No. L24828, "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 Vice-President, 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 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.

1 2 3 4 5 6 7 8 9 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 2 2 2 2 3 3 3 3 3 3 3 3 3 3[G.R. No. 157870, November 03, 2008]

SOCIAL JUSTICE SOCIETY (SJS), PETITIONER, VS. DANGEROUS DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), RESPONDENTS. [G.R. No. 158633] ATTY. MANUEL J. LASERNA, JR., PETITIONER, VS. DANGEROUS DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY, RESPONDENTS. [G.R. No. 161658] AQUILINO Q. PIMENTEL, JR., PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT.

DECISION VELASCO JR., J.: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices.Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx (f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing.x x x xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of

candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage.All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates.Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10, 2004 elections,[1] filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.[2] It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed.[3] But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.[4] To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.[5] The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.[6] There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,[7] or alter or enlarge the Constitution. Pimentel's contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.[8] In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution.

Whatever limits it imposes must be observed.[9] Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.[10] Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.[11] The substantive constitutional limitations are chiefly found in the Bill of Rights[12] and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.[13] Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug-testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to

stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of antidrug abuse policies, programs and projects."[14] The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point: Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.[15] The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure[16] under Sec. 2, Art. III[17] of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a statedecreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),[18] both fairly pertinent US Supreme Court-decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment[19] of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth[20] and 14th Amendments and declared the random drug-testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching

band, and academic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and nondiscriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the wellbeing of the people,[21] particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty.[22] Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"[23] has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.[24] Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.[25] The essence of privacy is the right to be left alone.[26] In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities.[27] And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against `unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.[28] Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.[29] As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.[30] And whether a search

at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.[31] In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employeesand students for that matterunder RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?[32] The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.[33] In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;[34] that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."[35] Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.[36] To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.[37] And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.[38] Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape.[39] In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. SO ORDERED.

4 4 4 4 4 4 4 4 4 4 5 5 5 5 5 5 5 5 5 5 6 6
6G.R. No. 78239 February 9, 1989 SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR., respondent. FERNAN, C.J.: The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1 Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50. 2 The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held: We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was convicted of the crime for which she was accused. In line with the government's crusade to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite. In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. ... Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2). IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction. 3 Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987. Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same. 4 It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and sentenced to imprisonment of four years, two months and one day of prision correccional as

minimum, to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict from public office or employment, such disqualification to last during the term of the sentence. 6 Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon. 7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office. 8 The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly in describing the effects of pardon. The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine jurisprudence on the subject has been largely influenced by American case law. Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." 8-a At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9 The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code. In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party ... concerned from the accessory and resultant disabilities of criminal conviction. The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions.

Consider the following broad statements: A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 14 Such generalities have not been universally accepted, recognized or approved. 15 The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. 16 The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction." 18 A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required." 20 This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we find this strong observation: "To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22 In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen. Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor." 23 Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring

back lost reputation for honesty, integrity and fair dealing. track of the true character and purpose of the privilege.

24

This must be constantly kept in mind lest we lose

Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility for appointment to that office. 26 The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction. For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment. Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation. 27 WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs. SO ORDERED.

6 6 6 6 6 6

G.R. No. 75025 September 14, 1993 VICENTE GARCIA, petitioner, vs. THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents. BELLOSILLO, J.: Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary remedy of mandamus against public respondents to enforce his claim. Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision. Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the offense charged. Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency. On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner. Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service. It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's reinstatement was to the same position of Supervising Lineman. 1 Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim. Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint," 2 holding that this Court is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution). Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency.

In his comment to the petition, the Solicitor General recommends that the petition be given due course and the petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is to accord full justice to petitioner. On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in the criminal case did not necessarily free him from administrative liability; (b) petitioners unexplained failure to appeal the decision in the administrative case was tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of back wages; (d) the award of back wages is allowed only if the respondent is exonerated from the administrative charge that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render any service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule. The petition is meritorious. Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money. 3 Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances: Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. 4 From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the nature of an executive pardon. A reading of Resolution No. 1800 partly quoted hereunder is enlightening: In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no objection to the petition, while the Minister of Transportation and Communications, in his 4th Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency to petitioner for the reason that "while it is a rule that an administrative case is separate and distinct from a criminal case and an acquittal in the latter case dos not ipso facto result in the exoneration in the former case, yet an exception could arise if the basis for the acquittal was the innocence of the accused as in the case of petitioner Garcia. Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service Commission recommends the grant of executive clemency to petitioner in view of the findings of the court that instead of coming forward to the defense of the accused who actually was authorized to uproot or recover the poles in question and of commending the latter for his high sense of responsibility in preventing losses to the government, said high officials had even the temerity to disown and deny the authority they gave to the accused resulting in his separation from the service and having him all alone in defending himself against the accusation of the very government he tried to protect.

After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of this decision of the court acquitting him of the crime of qualified theft which was based on the same acts obtaining in Administrative Case No. 975 against him, coupled with the favorable recommendation of the Minister of Transportation and Communications and the Civil Service Commission. In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency. 5 Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran, 6 we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. 7 When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency. Petitioner's automatic reinstatement to the government service entitles him to back wages. 8 This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. 9 There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages. Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." 10 In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency

nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages. After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages. 11 Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed government employee who has been ordered reinstated. 12 The cases heretofore decided by this Court show that petitioners therein were employees of local governments who were removed from office by their local officials. The reasons given for their removal were abolition of office or position, reduction of work force, or lack of funds on the part of the local governments concerned, which reasons were found by this Court to be either devoid of factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and justified. In contrast, the case before us is different, involving as it does circumstances that impel us to deviate from the general rule previously laid down on the recovery of back wages for five (15) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment shall be without deduction or qualification. WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale. SO ORDERED.