EN BANC

[G.R. No. 124893. April 18, 1997]

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE
HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F.
RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

DECISION
PUNO, J.:
Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of
respondent Commission on Elections (COMELEC) en banc suspending her proclamation
as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo,
Municipality of Bangui, Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was
scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for
registration as member and voter of the Katipunan ng Kabataan of Barangay San
Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her
application on the ground that petitioner, who was then twenty-one years and ten (10)
months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid
down in Section 3 [b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang
Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-AdamsDamalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found
petitioner qualified and ordered her registration as member and voter in the Katipunan ng
Kabataan. [1] The Board of Election Tellers appealed to the Regional Trial Court, Bangui,
Ilocos Norte. [2] The presiding judge of the Regional Trial Court, however, inhibited
himself from acting on the appeal due to his close association with petitioner. [3]
i

ii

iii

On April 23, 1996, petitioner filed her certificate of candidacy for the position of
Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui,
Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer
Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, [4] disapproved
petitioner's certificate of candidacy again due to her age. [5] Petitioner, however, appealed
to COMELEC Regional Director Filemon A. Asperin who set aside the order of
respondents and allowed petitioner to run. [6]
iv

vi

On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of

her ineligibility and giving her 24 hours to explain why her certificate of candidacy
should not be disapproved. [7] Earlier and without the knowledge of the COMELEC
officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the
Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or
vii

Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely

representing her age qualification in her certificate of candidacy. The petition was sent
by facsimile [8] and registered mail on April 29, 1996 to the Commission on Elections
National Office, Manila.
viii

On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the
COMELEC en banc issued an order directing the Board of Election Tellers and Board of
Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the
event she won in the election. The order reads as follows:
"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of
Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida,
received on April 29, 1996, the pertinent allegations of which reads:
xxx
5.
That the said respondent is disqualified to become a voter and a candidate for the
SK for the reason that she will be more than twenty-one (21) years of age on May 6,
1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, a
copy of which is hereto attached and marked as Annex "A";
6.
That in filing her certificate of candidacy as candidate for SK of Bgy. San
Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as
such, she is disqualified; that her certificate of candidacy should not be given due course
and that said candidacy must be cancelled;
x x x."
the Commission, it appearing that the petition is meritorious, hereby DIRECTS
the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo,
Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the
event she garners the highest number of votes for the position of Sangguniang
Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies of
his petition and to pay the filing and legal research fees in the amount of
P510.00.
SO ORDERED."

ix

[9]

On May 6, 1996, election day, petitioner garnered 78 votes as against private

respondent's votes of 76. [10] In accordance with the May 2, 1996 order of the COMELEC
en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence,
the instant petition for certiorari was filed on May 27, 1996.
x

On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner
for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. [11] The
xi

proclamation was "without prejudice to any further action by the Commission on

Elections or any other interested party." [12] On July 5, 1996, petitioner ran in the
Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui,
Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the
Pederasyon. [13]
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xiii

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the
COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy;
the second, the cancellation of her certificate of candidacy on the ground that she has
exceeded the age requirement to run as an elective official of the SK.
I
Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the
SK elections is under the supervision of the COMELEC and shall be governed by the
Omnibus Election Code. [14] The Omnibus Election Code, in Section 78, Article IX,
governs the procedure to deny due course to or cancel a certificate of candidacy, viz:
xiv

"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is
false. The petition may be filed at any time not later than twenty-five days from
the time of filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition
to deny due course to or cancel a certificate of candidacy for an elective office may be
filed with the Law Department of the COMELEC on the ground that the candidate has
made a false material representation in his certificate. The petition may be heard and
evidence received by any official designated by the COMELEC after which the case shall
be decided by the COMELEC itself. [15]
xv

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a
Division may only be entertained by the COMELEC en banc when the required number
of votes to reach a decision, resolution, order or ruling is not obtained in the Division.
Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the
COMELEC in Division are resolved by the COMELEC en banc. [16] It is therefore the
COMELEC sitting in Divisions that can hear and decide election cases. This is clear from
Section 3 of the said Rules thus:
xvi

"Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in

two (2) Divisions to hear and decide protests or petitions in ordinary actions,
special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens' arms of the Commission." [17]
xvii

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions
upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of
discretion when it entertained the petition and issued the order of May 2, 1996. [18]
xviii

II
The COMELEC en banc also erred when it failed to note that the petition itself did not
comply with the formal requirements of pleadings under the COMELEC Rules of
Procedure. These requirements are:
"Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be
filed in ten (10) legible copies. However, when there is more than one
respondent or protestee, the petitioner or protestant must file additional number
of copies of the petition or protest as there are additional respondents or
protestees.
Sec. 2. How Filed. -- The documents referred to in the immediately preceding
section must be filed directly with the proper Clerk of Court of the Commission
personally, or, unless otherwise provided in these Rules, by registered mail. In
the latter case, the date of mailing is the date of filing and the requirement as to
the number of copies must be complied with.
Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall
be printed, mimeographed or typewritten on legal size bond paper and shall be in
English or Filipino.
x x x."
Every pleading before the COMELEC must be printed, mimeographed or typewritten in
legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed
directly with the proper Clerk of Court of the COMELEC personally, or, by registered
mail.
In the instant case, the subject petition was not in proper form. Only two (2) copies of the
petition were filed with the COMELEC. [19] Also, the COMELEC en banc issued its
Resolution on the basis of the petition transmitted by facsimile, not by registered mail.
xix

A facsimile or fax transmission is a process involving the transmission and reproduction

of printed and graphic matter by scanning an original copy, one elemental area at a time,
and representing the shade or tone of each area by a specified amount of electric current.
[20] The current is transmitted as a signal over regular telephone lines or via microwave
relay and is used by the receiver to reproduce an image of the elemental area in the
proper position and the correct shade. [21] The receiver is equipped with a stylus or other
device that produces a printed record on paper referred to as a facsimile. [22]

xx

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xxii

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of

Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic
pleading. It is, at best, an exact copy preserving all the marks of an original. [23]
xxiii

Without the original, there is no way of determining on its face whether the facsimile
pleading is genuine and authentic and was originally signed by the party and his counsel.
It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile
pleading should have restrained the COMELEC en banc from acting on the petition and
issuing the questioned order. The COMELEC en banc should have waited until it
received the petition filed by registered mail.
III
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in
1975 as the Kabataang Barangay, a barangay youth organization composed of all
residents of the barangay who were at least 15 years but less than 18 years of age. [24]
xxiv

The Kabataang Barangay sought to provide its members a medium to express their views
and opinions and participate in issues of transcendental importance. [25] Its affairs were
administered by a barangay youth chairman together with six barangay youth leaders who
were actual residents of the barangay and were at least 15 years but less than 18 years of
age. [26] In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the
maximum age of the Kabataang Barangay members from "less than 18 years of age" to
"not more than 21 years of age."
xxv

xxvi

The Local Government Code of 1991 changed the Kabataang Barangay into the
Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in
B.P. 337 at 15 but not more than 21 years old. [27] The affairs of the Katipunan ng
Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman
and seven (7) members who are elected by the Katipunan ng Kabataan. [28]
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xxviii

The chairman automatically becomes ex-officio member of the Sangguniang

Barangay. [29] A member of the SK holds office for a term of three (3) years, unless
sooner removed for cause, or becomes permanently incapacitated, dies or resigns from
office. [30]
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xxx

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down

by the Local Government Code of 1991, viz:
"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be
composed of all citizens of the Philippines actually residing in the barangay for
at least six (6) months, who are fifteen (15) but not more than twenty-one (21)
years of age, and who are duly registered in the list of the sangguniang kabataan
or in the official barangay list in the custody of the barangay secretary."

A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang
Kabataan if he possesses the following qualifications:
"Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan
must be a citizen of the Philippines, a qualified voter of the katipunan ng
kabataan, a resident of the barangay for at least one (1) year immediately prior to
election, at least fifteen (15) years but not more than twenty-one (21) years of
age on the day of his election, able to read and write Filipino, English, or the
local dialect, and must not have been convicted of any crime involving moral
turpitude."
Under Section 424 of the Local Government Code, a member of the Katipunan ng
Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at
least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in
the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the
Code requires that an elective official of the Sangguniang Kabataan must be: (a) a
Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of
the barangay at least one (1) year immediately preceding the election; (d) at least 15
years but not more than 21 years of age on the day of his election; (e) able to read and
write; and (f) must not have been convicted of any crime involving moral turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of
the Local Government Code of 1991 in Resolution No. 2824 and defined how a member
of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus:
"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the
SK elections, a person must be:
a) a citizen of the Philippines;
b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he
must have been born between May 6, 1975 and May 6, 1981, inclusive; and
c) a resident of the Philippines for at least one (1) year and actually residing in the
barangay wherein he proposes to vote for at least six (6) months immediately preceding
the elections."
xxx
"Sec. 6. Qualifications of elective members. -- An elective official of the SK
must be:
a) a qualified voter;
b) a resident in the barangay for at least one (1) year immediately prior to the elections;
and

c) able to read and write Filipino or any Philippine language or dialect or English.
Cases involving the eligibility or qualification of candidates shall be decided by
the city/municipal Election Officer (EO) whose decision shall be final."
A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK
elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on
election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981,
inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual
resident of the barangay at least six (6) months immediately preceding the elections. A
candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a
resident in the barangay at least one (1) year immediately preceding the elections; and (c)
able to read and write.
Except for the question of age, petitioner has all the qualifications of a member and voter
in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's
age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No.
2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful,
ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code
of 1991. She contends that the Code itself does not provide that the voter must be
exactly 21 years of age on election day. She urges that so long as she did not turn
twenty-two (22) years old, she was still twenty-one years of age on election day and
therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate
for the SK elections.
A closer look at the Local Government Code will reveal a distinction between the
maximum age of a member in the Katipunan ng Kabataan and the maximum age of an
elective SK official. Section 424 of the Code sets a member's maximum age at 21 years
only. There is no further provision as to when the member shall have turned 21 years of
age. On the other hand, Section 428 provides that the maximum age of an elective SK
official is 21 years old "on the day of his election." The addition of the phrase "on the
day of his election" is an additional qualification. The member may be more than 21
years of age on election day or on the day he registers as member of the Katipunan ng
Kabataan. The elective official, however, must not be more than 21 years old on the day
of election. The distinction is understandable considering that the Code itself provides
more qualifications for an elective SK official than for a member of the Katipunan ng
Kabataan. Dissimilum dissimilis est ratio. [31] The courts may distinguish when there are
facts and circumstances showing that the legislature intended a distinction or
qualification. [32]
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xxxii

The qualification that a voter in the SK elections must not be more than 21 years of age
on the day of the election is not provided in Section 424 of the Local Government Code
of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution No.
2824. [33] Since a "qualified voter" is not necessarily an elective official, then it may be
assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section
424 of the Code does not provide that the maximum age of a member of the Katipunan
xxxiii

ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC

Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for
the SK elections at exactly 21 years on the day of the election.
The provision that an elective official of the SK should not be more than 21 years of age
on the day of his election is very clear. The Local Government Code speaks of years, not
months nor days. When the law speaks of years, it is understood that years are of 365
days each. [34] One born on the first day of the year is consequently deemed to be one
year old on the 365th day after his birth -- the last day of the year. [35] In computing
years, the first year is reached after completing the first 365 days. After the first 365th
day, the first day of the second 365-day cycle begins. On the 365th day of the second
cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person
turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st
birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the
365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the
next 365-day cycle and he turns 22 years old on the 365th day.
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xxxv

The phrase "not more than 21 years of age" means not over 21 years, not beyond 21
years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a
fraction of a year because that would be more than 21 365-day cycles. "Not more than 21
years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims.
The law does not state that the candidate be less than 22 years on election day.
In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a
barangay youth official was expressly stated as "x x x at least fifteen years of age or over
but less than eighteen x x x." [36] This provision clearly states that the youth official
must be at least 15 years old and may be 17 years and a fraction of a year but should not
reach the age of eighteen years. When the Local Government Code increased the age
limit of members of the youth organization to 21 years, it did not reenact the provision in
such a way as to make the youth "at least 15 but less than 22 years old." If the intention
of the Code's framers was to include citizens less than 22 years old, they should have
stated so expressly instead of leaving the matter open to confusion and doubt. [37]
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xxxvii

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local
Government Code of 1991 declared that one of the reasons why the Katipunan ng
Kabataan was created and the Kabataang Barangay discontinued was because most, if not
all, Kabataang Barangay leaders were already over 21 years of age by the time President
Aquino assumed power. [38] They were not the "youth" anymore. The Local
Government Code of 1991 fixed the maximum age limit at not more than 21 years [39]
and the only exception is in the second paragraph of Section 423 which reads:
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xxxix

"Sec. 423. Creation and Election. -- a)

x x x;

b) A sangguniang kabataan official who, during his term of office, shall have
passed the age of twenty-one (21) years shall be allowed to serve the remaining
portion of the term for which he was elected."

The general rule is that an elective official of the Sangguniang Kabataan must
not be more than 21 years of age on the day of his election. The only exception is when
the official reaches the age of 21 years during his incumbency. Section 423 [b] of the
Code allows him to serve the remaining portion of the term for which he was elected.
According to Senator Pimentel, the youth leader must have "been elected prior to his 21st
birthday." [40] Conversely, the SK official must not have turned 21 years old before his
election. Reading Section 423 [b] together with Section 428 of the Code, the latest date
at which an SK elective official turns 21 years old is on the day of his election. The
maximum age of a youth official must therefore be exactly 21 years on election day.
Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra
vires insofar as it fixes the maximum age of an elective SK official on the day of his
election.
xl

In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she
registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21)
years and nine (9) months old. On the day of the elections, she was 21 years, 11 months
and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months
and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner
may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner
was over the age limit for elective SK officials set by Section 428 of the Local
Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was
ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections.
The requirement that a candidate possess the age qualification is founded on public
policy and if he lacks the age on the day of the election, he can be declared ineligible.

xli

[41]

In the same vein, if the candidate is over the maximum age limit on the day of the
election, he is ineligible. The fact that the candidate was elected will not make the age
requirement directory, nor will it validate his election. [42] The will of the people as
expressed through the ballot cannot cure the vice of ineligibility. [43]
xlii

xliii

The ineligibility of petitioner does not entitle private respondent, the candidate who
obtained the highest number of votes in the May 6, 1996 elections, to be declared
elected. [44] A defeated candidate cannot be deemed elected to the office. [45] Moreover,
despite his claims, [46] private respondent has failed to prove that the electorate
themselves actually knew of petitioner's ineligibility and that they maliciously voted for
her with the intention of misapplying their franchises and throwing away their votes for
the benefit of her rival candidate. [47]
xliv

xlv

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xlvii

Neither can this Court order that pursuant to Section 435 of the Local Government Code
petitioner should be succeeded by the Sangguniang Kabataan member who obtained the
next highest number of votes in the May 6, 1996 elections. [48] Section 435 applies when
a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, [49] is
convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed
from office, or has been absent without leave for more than three (3) consecutive
months."
xlviii

xlix

The question of the age qualification is a question of eligibility. [50]

l

Being "eligible" means being "legally qualified; capable of being legally chosen." [51]
li

Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the
Constitution or the statutes for holding public office. [52] Ineligibility is not one of the
grounds enumerated in Section 435 for succession of the SK Chairman.
lii

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that
the vacancy be filled by the SK member chosen by the incumbent SK members of
Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves.
The member chosen shall assume the office of SK Chairman for the unexpired portion of
the term, and shall discharge the powers and duties, and enjoy the rights and privileges
appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is
declared ineligible for being over the age qualification for candidacy in the May 6, 1996
elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman
of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The
Sangguniang Kabataan member voted by simple majority by and from among the
incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos
Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San
Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.

EN BANC
[G.R. No. 137329. August 9, 2000]
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE M.
SERIO, petitioners, vs. COMMISSION ON ELECTIONS and VICENTE Y.
EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification for seeking
and holding elective public office, in order to give candidates the opportunity to
be familiar with the needs, difficulties, aspirations, potentials for growth and all
matters vital to the welfare of their constituencies; likewise, it enables the

electorate to evaluate the office seekers' qualifications and fitness for the job they
aspire for. Inasmuch as Vicente Y. Emano has proven that he, together with his
family, (1) had actually resided in a house he bought in 1973 in Cagayan de Oro
City; (2) had actually held office there during his three terms as provincial
governor of Misamis Oriental, the provincial capitol being located therein; and (3)
has registered as voter in the city during the period required by law, he could not
be deemed "a stranger or newcomer" when he ran for and was overwhelmingly
voted as city mayor. Election laws must be liberally construed to give effect to
the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court seeking
to set aside the January 18, 1999 Resolution liii[1] of the Commission on Elections
(Comelec) en banc in SPA No. 98-298, which upheld the July 14, 1998
Resolutionliv[2] of the Comelec First Division. The assailed Resolutions ruled that
Private Respondent Vicente Y. Emano possessed the minimum period of
residence to be eligible to vote in Cagayan de Oro City, as well as be voted
mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and
proclaimed provincial governor of Misamis Oriental. It was his third consecutive
term as governor of the province. In his Certificate of Candidacy dated March
12, 1995, his residence was declared to be in Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano executed
a Voter Registration Record in Cagayan de Oro City (geographically located in
the Province of Misamis Oriental), a highly urbanized city, in which he claimed 20
years of residence. On March 25, 1998, he filed his Certificate of Candidacy for
mayor of the city, stating therein that his residence for the preceding two years
and five months was at 1409 San Jose Street, Capistrano Subdivision, Gusa,
Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with Emano,
was Erasmo B. Damasing, counsel of herein petitioners. On May 15, 1998,
Petitioners Rogelio M. Torayno Sr., Generoso Q. Eligan and Jacqueline M.
Serio, all residents of Cagayan de Oro City, filed a Petition before the Comelec,
docketed as SPA No. 98-298, in which they sought the disqualification of Emano
as mayoral candidate, on the ground that he had allegedly failed to meet the oneyear residence requirement. Prior to the resolution of their Petition, the Comelec
proclaimed private respondent as the duly elected city mayor. Thus, on May 29,
1998, petitioners filed another Petition before the Comelec, this time for quo

warranto,lv[3] in which they sought (1) the annulment of the election of private
respondent; and (2) the proclamation of Erasmo B. Damasing, who had garnered
the next highest number of votes, as the duly elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division denied the
Petition for Disqualification. Upon petitioners' Motion for Reconsideration and
Motion for Consolidation, the two cases were consolidated. lvi[4]
Ruling of the Comelec
As earlier stated, the Comelec en banc upheld the findings and conclusions of
the First Division, holding that "[t]he records clearly show that the respondent is
an actual resident of Cagayan de Oro City for such a period of time necessary to
qualify him to run for mayor therein. This fact is clearly established by the
respondent having a house in the city which has been existing therein since 1973
and where his family has been living since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial official from residing
and/or registering as a voter in a highly urbanized city whose residents are not
given the right to vote for and be elected to a position in the province embracing
such highly urbanized city as long as he has complied with the requirements
prescribed by law in the case of a qualified voter.
"Neither can the list of voters submitted as evidence for the petitioners showing
that the respondent was a registered voter as of March 13, 1995 in Precinct No.
12, Barangay Poblacion, Tagoloan, Misamis Oriental bolster the petitioner's
argument that the respondent is not a resident [or a] registered voter in Cagayan
de Oro City since registration in said Precinct No. 12 does not preclude the
respondent from registering anew in another place."
Hence, this recourselvii[5] before this Court.
Issues
In their Memorandum,lviii[6] petitioners submit that the main issue is whether the
"Comelec gravely abused its discretion amounting to lack of jurisdiction in issuing
the questioned Resolutions." Allegedly, the resolution of this issue would depend
on the following:lix[7]
"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until he filed his certificate of
candidacy for mayor of Cagayan de Oro City on March 25, 1998 in the May 11,
1998 election;

(b) asserting under oath [that he was] qualified to act as governor of said
province until said date; and
(c) admitting, in sworn statements, [that he was] a resident of Misamis Oriental,
precluded him from acquiring a bona fide domicile of choice for at least one (1)
year in Cagayan de Oro City prior to the May 11, 1998 elections, as to disqualify
him for being a candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing a residence certificate in
Cagayan de Oro City, holding offices as governor of Misamis Oriental in the
Capitol Building located in Cagayan de Oro City and having a house therein
where [he had] stay[ed] during his tenure as governor, and registering as a voter
in said City in June 1997, would be legally sufficient, as against the undisputed
facts above enumerated, to constitute a change of his domicile of birth in
Tagoloan, Misamis Oriental in favor of a new domicile of choice in Cagayan de
Oro City for at least one (1) year for purposes of qualifying him to run for city
mayor in the May 11, 1998 elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan de
Oro City in the May 11, 1998 elections, who received the second highest number
of votes, can be declared winner, considering that respondent Emano was
disqualified to run for and hold said office and considering that his disqualification
or ineligibility had been extensively brought to the attention and consciousness of
the voters prior to the May 11, 1998 election as to attain notoriety,
notwithstanding which they still voted for him."
Petitioners are seeking the resolution of essentially two questions: (1) whether
private respondent had duly established his residence in Cagayan de Oro City at
least one year prior to the May 11, 1998 elections to qualify him to run for the
mayorship thereof; and (2) if not, whether Erasmo Damasing, the candidate who
had received the second highest number of votes, should be proclaimed mayor
of the city.
The Courts Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the petitioners was
deliberated upon by the Court. We note that petitioners pray, among others, for
judgment "declaring Atty. Erasmo B. Damasing as entitled to be proclaimed
winner as mayor in the May 11, 1998 elections in Cagayan de Oro City." lx[8] And
yet, Damasing is not a party to the instant "Petition for Certiorari pursuant to
Rule[s] 64 and 65" brought before us.

Under the Rules of Court, a quo warranto may be brought only by (1) the solicitor
general or (2) a public prosecutor or (3) a person claiming to be entitled to the
public office or position usurped or unlawfully held or exercised by another. lxi[9] A
reading of the Rules shows that petitioners, none of whom qualify under any of
the above three categories, are without legal standing to bring this suit.
However, the present Petition finds its root in two separate cases filed before the
Comelec: (1) SPC 98-298 for disqualification and (2) EPC 98-62 for quo
warranto. Under our election laws and the Comelec Rules of Procedure, any
voter may file a petition to disqualify a candidate on grounds provided by law, lxii
[10] or to contest the election of a city officer on the ground of ineligibility or
disloyalty to the Republic.lxiii[11] The petitioners herein, being "duly-registered
voters" of Cagayan de Oro City, therefore satisfy the requirement of said laws
and rules.lxiv[12]
Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile in Tagoloan,
Misamis Oriental, not in Cagayan de Oro City, as allegedly shown by the
following facts: (1) he had run and won as governor of the province of Misamis
Oriental for three consecutive terms immediately preceding the 1998 elections;
(2) in the pleadings he filed in connection with an election protest against him
relating to the 1995 election, he had stated that he was a resident of Tagoloan,
Misamis Oriental; (3) he had fully exercised the powers and prerogatives of
governor until he filed his Certificate of Candidacy for mayor on March 25, 1998.
Petitioners claim that in discharging his duties as provincial governor, private
respondent remained a resident of the province. They aver that residence is a
continuing qualification that an elective official must possess throughout his term.
Thus, private respondent could not have changed his residence to Cagayan de
Oro City while he was still governor of Misamis Oriental.
Petitioners further contend that the following were not sufficient to constitute a
change of domicile: having a house in Cagayan de Oro City, residing therein
while exercising one's office as governor (the city being the seat of government
of the province), securing a residence certificate and registering as voter therein.
Private respondent, on the other hand, alleges that he actually and physically
resided in Cagayan de Oro City while serving as provincial governor for three
consecutive terms, since the seat of the provincial government was located at the
heart of that city.lxv[13] He also avers that one's choice of domicile is a matter of
intention, and it is the person concerned who would be in the best position to
make a choice. In this case, Emano decided to adopt Cagayan de Oro City as
his place of residence after the May 1995 elections. In fact, in January 1997, he
secured his Community Tax Certificate at the City Treasurer's Office, stating
therein that he was a resident of 1409 San Jose Street, Capistrano Subdivision,

Gusa, Cagayan de Oro City. During the general registration of voters in June
1997, he registered in one of the precincts of Gusa, Cagayan de Oro City. This
meant that, at the time, Emano had been a voter of the city for the minimum
period required by law. No one has ever challenged this fact before any tribunal.
Private respondent contends further that his transfer of legal residence did not
ipso facto divest him of his position as provincial governor. First, there is no law
that prevents an elected official from transferring residence while in office.
Second, an elective official's transfer of residence does not prevent the
performance of that official's duties, especially in private respondent's case in
which the seat of government became his adopted place of residence. Third, as
ruled in Frivaldo v. Comelec,lxvi[14] the loss of any of the required qualifications
for election merely renders the official's title or right to office open to challenge.
In Emano's case, no one challenged his right to the Office of Provincial Governor
when he transferred his residence to Cagayan de Oro City. Naturally, he
continued to discharge his functions as such, until he filed his candidacy for
mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as expressed in the
election result, must be respected. He is not, after all, a stranger to the city,
much less to its voters. During his three terms as governor of Misamis Oriental,
his life and actuations have been closely interwoven with the pulse and beat of
Cagayan de Oro City.
Public Respondent Comelec relies essentially on Romualdez-Marcos v.
Comeleclxvii[15] in its Memorandumlxviii[16]which supports the assailed
Resolutions, and which has been filed in view of the solicitor general's
Manifestation and Motion in Lieu of Comment. lxix[17] Thus, the poll body argues
that "x x x the fact of residence x x x ought to be decisive in determining whether
or not an individual has satisfied the Constitution's residency qualification
requirement."
Law on Qualifications of Local Elective Officials

The pertinent provision sought to be enforced is Section 39 of the Local

Government Code (LGC) of 1991,lxx[18] which provides for the qualifications of
local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province x x
x where he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write Filipino
or any other local language or dialect."
Generally, in requiring candidates to have a minimum period of residence in the
area in which they seek to be elected, the Constitution or the law intends to

prevent the possibility of a "stranger or newcomer unacquainted with the

conditions and needs of a community and not identified with the latter from
[seeking] an elective office to serve that community." lxxi[19] Such provision is
aimed at excluding outsiders "from taking advantage of favorable circumstances
existing in that community for electoral gain." lxxii[20] Establishing residence in a
community merely to meet an election law requirement defeats the purpose of
representation: to elect through the assent of voters those most cognizant and
sensitive to the needs of the community. This purpose is "best met by individuals
who have either had actual residence in the area for a given period or who have
been domiciled in the same area either by origin or by choice." lxxiii[21]
Facts Showing Change of Residence

In the recent en banc case Mamba-Perez v. Comelec,lxxiv[22] this Court ruled that
private respondent therein, now Representative Rodolfo E. Aguinaldo of the
Third District of Cagayan, had duly proven his change of residence from
Gattaran, Cagayan (part of the First District) to Tuguegarao, Cagayan (part of the
Third District in which he sought election as congressman). He proved it with the
following facts: (1) in July 1990, he leased and lived in a residential apartment in
Magallanes Street, Tuguegarao, Cagayan; (2) in July 1995, he leased another
residential apartment in Kamias Street, Tanza, Tuguegarao, Cagayan; (3) the
January 18, 1998 Certificate of Marriage between Aguinaldo and his second wife,
Lerma Dumaguit; (4) the Certificate of Live Birth of his second daughter; and (5)
various letters addressed to him and his family showed that he had been a
resident of Tuguegarao for at least one year immediately preceding the May
1998 elections. The Court also stated that it was not "of much importance that in
his [Aguinaldo's] certificates of candidacy for provincial governor in the elections
of 1988, 1992, and 1995, private respondent stated that he was a resident of
Gattaran."lxxv[23]
In the case at bar, the Comelec found that private respondent and his family had
actually been residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in
a house he had bought in 1973. Furthermore, during the three terms (19881998) that he was governor of Misamis Oriental, he physically lived in that city,
where the seat of the provincial government was located. In June 1997, he also
registered as voter of the same city. Based on our ruling in Mamba-Perez, these
facts indubitably prove that Vicente Y. Emano was a resident of Cagayan de Oro
City for a period of time sufficient to qualify him to run for public office therein.
Moreover, the Comelec did not find any bad faith on the part of Emano in his
choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly
urbanized city whose voters cannot participate in the provincial elections. Such
political subdivisions and voting restrictions, however, are simply for the purpose
of parity in representation. The classification of an area as a highly urbanized or
independent component city, for that matter, does not completely isolate its

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

needs, difficulties, aspirations, potentials for growth and development, and all
matters vital to their common welfare. The requisite period would give
candidates the opportunity to be familiar with their desired constituencies, and
likewise for the electorate to evaluate the former's qualifications and fitness for
the offices they seek.
In other words, the actual, physical and personal presence of herein private
respondent in Cagayan de Oro City is substantial enough to show his intention to
fulfill the duties of mayor and for the voters to evaluate his qualifications for the
mayorship. Petitioners' very legalistic, academic and technical approach to the
residence requirement does not satisfy this simple, practical and common-sense
rationale for the residence requirement.
Interpretation to Favor Popular Mandate

There is no question that private respondent was the overwhelming choice of the
people of Cagayan de Oro City. He won by a margin of about 30,000 votes. lxxvi
[24] Thus, we find it apt to reiterate the principle that the manifest will of the
people as expressed through the ballot must be given fullest effect. In case of
doubt, political laws must be interpreted to give life and spirit to the popular
mandate.lxxvii[25] Verily, in Frivaldo v. Comelec,lxxviii[26] the Court held:
"x x x [T]his Court has repeatedly stressed the importance of giving effect to the
sovereign will in order to ensure the survival of our democracy. In any action
involving the possibility of a reversal of the popular electoral choice, this Court
must exert utmost effort to resolve the issues in a manner that would give effect
to the will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority. To successfully
challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional and
legal principles that overriding such ineligibility and thereby giving effect to the
apparent will of the people would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and laws so
zealously protect and promote."
In the same vein, we stated in Alberto v. Comeleclxxix[27] that "election cases
involve public interest; thus, laws governing election contests must be liberally
construed to the end that the will of the people in the choice of public officials
may not be defeated by mere technical objections."
Indeed, "it would be far better to err in favor of popular sovereignty than to be
right in complex but little understood legalisms." lxxx[28]
In sum, we hold that Respondent Comelec cannot be faulted with abuse, much
less grave abuse, of discretion in upholding private respondent's election.

Corollary Issue: Effect of Disqualification of Winner on Second Placer

With the resolution of the first issue in the positive, it is obvious that the second
one posited by petitioners has become academic and need not be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec
Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.
Torayno v COMELEC G.R. No. 137329. August 9, 2000. 07/19/2010
0 Comments
Facts: During the 1995 elections, Vicente Y. Emano ran for, was elected, and proclaimed
provincial governor of Misamis Oriental. It was his third consecutive term as governor of the
province. In his Certificate of Candidacy dated March 12, 1995, his residence was declared to be
in Tagoloan, Misamis Oriental. On March 25, 1998, he filed his Certificate of Candidacy for mayor
of the city, stating therein that his residence for the preceding two years and five months was at
1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City.
On May 29, 1998, petitioners filed another Petition before the COMELEC, this time for quo
warranto, in which they sought (1) the annulment of the election of private respondent; and (2) the
proclamation of Erasmo B. Damasing, who had garnered the next highest number of votes, as
the duly elected mayor of the city.
Issue: In their Memorandum, petitioners submit that the main issue is whether the "COMELEC
gravely abused its discretion amounting to lack of jurisdiction in issuing the questioned
Resolutions." Allegedly, the resolution of this issue would depend on the following:
1. Whether or not private respondent Emano's (a) remaining as governor of Misamis
Oriental until he filed his certificate of candidacy for mayor of Cagayan de Oro City on March 25,
1998 in the May 11, 1998 election; (b) asserting under oath [that he was] qualified to act as
governor of said province until said date; and (c) admitting, in sworn statements, [that he was] a
resident of Misamis Oriental, precluded him from acquiring a bona fide domicile of choice for at
least one (1) year in Cagayan de Oro City prior to the May 11, 1998 elections, as to disqualify
him for being a candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing a residence certificate in Cagayan de
Oro City, holding offices as governor of Misamis Oriental in the Capitol Building located in
Cagayan de Oro City and having a house therein where he had stayed during his tenure as
governor, and registering as a voter in said City in June 1997, would be legally sufficient, as
against the undisputed facts above enumerated, to constitute a change of his domicile of birth in
Tagoloan, Misamis Oriental in favor of a new domicile of choice in Cagayan de Oro City for at
least one (1) year for purposes of qualifying him to run for city mayor in the May 11, 1998
elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan de Oro City in
the May 11, 1998 elections, who received the second highest number of votes, can be declared
winner, considering that respondent Emano was disqualified to run for and hold said office and
considering that his disqualification or ineligibility had been extensively brought to the attention
and consciousness of the voters prior to the May 11, 1998 election as to attain notoriety,
notwithstanding which they still voted for him."

Held: WHEREFORE, the Petition is DISMISSED and the assailed COMELEC Resolutions
AFFIRMED. Costs against petitioners.

Ratio: In the case at bar, the COMELEC found that private respondent and his family had
actually been residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had
bought in 1973. Furthermore, during the three terms (1988-1998) that he was governor of
Misamis Oriental, he physically lived in that city, where the seat of the provincial government was
located. In June 1997 he also registered as voter of the same city.
We stress that the residence requirement is rooted in the desire that officials of districts or
localities be acquainted not only with the metes and bounds of their constituencies but, more
important, with the constituents themselves their needs, difficulties, aspirations, potentials for
growth and development, and all matters vital to their common welfare. The requisite period
would give candidates the opportunity to be familiar with their desired constituencies, and likewise
for the electorate to evaluate the former's qualifications and fitness for the offices they seek.
In view of locus standi of petitioners
Under the Rules of Court, a quo warranto may be brought only by (1) the solicitor general or
(2) a public prosecutor or (3) a person claiming to be entitled to the public office or position
usurped or unlawfully held or exercised by another. A reading of the Rules shows that petitioners,
none of whom qualify under any of the above three categories, are without legal standing
to bring this suit.
Under our election laws and the COMELEC Rules of Procedure, any voter may file a petition
to disqualify a candidate on grounds provided by law, or to contest the election of a city officer on
the ground of ineligibility or disloyalty to the Republic. The petitioners herein, being "dulyregistered voters" of Cagayan de Oro City, therefore satisfy the requirement of said laws and
rules.

In view of residence qualification for candidacy

Private respondent contends further that his transfer of legal residence did not ipso facto
divest him of his position as provincial governor. First, there is no law that prevents an elected
official from transferring residence while in office. Second, an elective official's transfer of
residence does not prevent the performance of that official's duties, especially in private
respondent's case in which the seat of government became his adopted place of residence.
Third, as ruled in Frivaldo v. COMELEC, the loss of any of the required qualifications for election
merely renders the official's title or right to office open to challenge. In Emano's case, no one
challenged his right to the Office of Provincial Governor when he transferred his residence to
Cagayan de Oro City. Naturally, he continued to discharge his functions as such, until he filed his
candidacy for mayor in March 1998.

In view of law on qualifications of local elective officials

Such provision is aimed at excluding outsiders "from taking advantage of favorable
circumstances existing in that community for electoral gain." Establishing residence in a
community merely to meet an election law requirement defeats the purpose of representation: to
elect through the assent of voters those most cognizant and sensitive to the needs of the
community. This purpose is "best met by individuals who have either had actual residence in the
area for a given period or who have been domiciled in the same area either by origin or by
choice."

In view of interpretation to favor popular mandate

There is no question that private respondent was the overwhelming choice of the people of
Cagayan de Oro City. He won by a margin of about 30,000 votes. Thus, we find it apt to reiterate
the principle that the manifest will of the people as expressed through the ballot must be given
fullest effect.
To successfully challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles
that overriding such ineligibility and thereby giving effect to the apparent will of the people would
ultimately create greater prejudice to the very democratic institutions and juristic traditions that
our Constitution and laws so zealously protect and promote .
In sum, we hold that COMELEC cannot be faulted with abuse, much less grave abuse, of
discretion in upholding private respondent's election.
With the resolution of the first issue in the positive, it is obvious that the second one posited by
petitioners has become academic and need not be ruled upon.

EN BANC
[G.R. No. 137000. August 9, 2000]
CIRILO R. VALLES, petitioner, vs. COMMISSION ON ELECTIONS and
ROSALIND YBASCO LOPEZ, respondents.
DECISION
PURISIMA, J.:
This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64 of
the 1997 Rules of Civil Procedure, assailing Resolutions dated July 17, 1998 and
January 15, 1999, respectively, of the Commission on Elections in SPA No. 98336, dismissing the petition for disqualification filed by the herein petitioner, Cirilo
R. Valles, against private respondent Rosalind Ybasco Lopez, in the May 1998
elections for governor of Davao Oriental.
Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome,
Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native
of Daet, Camarines Norte, and Theresa Marquez, an Australian. In 1949, at the
age of fifteen, she left Australia and came to settle in the Philippines.

On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at the
Malate Catholic Church in Manila. Since then, she has continuously participated
in the electoral process not only as a voter but as a candidate, as well. She
served as Provincial Board Member of the Sangguniang Panlalawigan of Davao
Oriental. In 1992, she ran for and was elected governor of Davao Oriental. Her
election was contested by her opponent, Gil Taojo, Jr., in a petition for quo
warranto, docketed as EPC No. 92-54, alleging as ground therefor her alleged
Australian citizenship. However, finding no sufficient proof that respondent had
renounced her Philippine citizenship, the Commission on Elections en banc
dismissed the petition, ratiocinating thus:
A cursory reading of the records of this case vis-a-vis the impugned resolution
shows that respondent was able to produce documentary proofs of the Filipino
citizenship of her late father... and consequently, prove her own citizenship and
filiation by virtue of the Principle of Jus Sanguinis, the perorations of the
petitioner to the contrary notwithstanding.
On the other hand, except for the three (3) alleged important documents . . . no
other evidence substantial in nature surfaced to confirm the allegations of
petitioner that respondent is an Australian citizen and not a Filipino. Express
renunciation of citizenship as a mode of losing citizenship under Commonwealth
Act No. 63 is an equivocal and deliberate act with full awareness of its
significance and consequence. The evidence adduced by petitioner are
inadequate, nay meager, to prove that respondent contemplated renunciation of
her Filipino citizenship. [1]
1

In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for reelection as governor of Davao Oriental. Her opponent, Francisco Rabat, filed a
petition for disqualification, docketed as SPA No. 95-066 before the COMELEC,
First Division, contesting her Filipino citizenship but the said petition was likewise
dismissed by the COMELEC, reiterating substantially its decision in EPC 92-54.
The citizenship of private respondent was once again raised as an issue when
she ran for re-election as governor of Davao Oriental in the May 11, 1998
elections. Her candidacy was questioned by the herein petitioner, Cirilo Valles,
in SPA No. 98-336.

On July 17, 1998, the COMELECs First Division came out with a Resolution
dismissing the petition, and disposing as follows:
Assuming arguendo that res judicata does not apply and We are to dispose the
instant case on the merits trying it de novo, the above table definitely shows that
petitioner herein has presented no new evidence to disturb the Resolution of this
1

Commission in SPA No. 95-066. The present petition merely restates the same
matters and incidents already passed upon by this Commission not just in 1995
Resolution but likewise in the Resolution of EPC No. 92-54. Not having put forth
any new evidence and matter substantial in nature, persuasive in character or
sufficiently provocative to compel reversal of such Resolutions, the dismissal of
the present petition follows as a matter of course.
xxx....................................xxx....................................xxx
WHEREFORE, premises considered and there being no new matters and
issues tendered, We find no convincing reason or impressive explanation to
disturb and reverse the Resolutions promulgated by this Commission in EPC 9254 and SPA. 95-066. This Commission RESOLVES as it hereby RESOLVES to
DISMISS the present petition.
SO ORDERED. [2]
2

Petitioner interposed a motion for reconsideration of the aforesaid Resolution but

to no avail. The same was denied by the COMELEC in its en banc Resolution of
January 15, 1999.

Undaunted, petitioner found his way to this Court via the present petition;
questioning the citizenship of private respondent Rosalind Ybasco Lopez.
The Commission on Elections ruled that private respondent Rosalind Ybasco
Lopez is a Filipino citizen and therefore, qualified to run for a public office
because (1) her father, Telesforo Ybasco, is a Filipino citizen, and by virtue of the
principle of jus sanguinis she was a Filipino citizen under the 1987 Philippine
Constitution; (2) she was married to a Filipino, thereby making her also a Filipino
citizen ipso jure under Section 4 of Commonwealth Act 473; (3) and that, she
renounced her Australian citizenship on January 15, 1992 before the Department
of Immigration and Ethnic Affairs of Australia and her Australian passport was
accordingly cancelled as certified to by the Australian Embassy in Manila; and (4)
furthermore, there are the COMELEC Resolutions in EPC No. 92-54 and SPA
Case No. 95-066, declaring her a Filipino citizen duly qualified to run for the
elective position of Davao Oriental governor.
Petitioner, on the other hand, maintains that the private respondent is an
Australian citizen, placing reliance on the admitted facts that:
a) In 1988, private respondent registered herself with the Bureau of Immigration
as an Australian national and was issued Alien Certificate of Registration No.
404695 dated September 19, 1988;
2

b) On even date, she applied for the issuance of an Immigrant Certificate of

Residence (ICR), and
c) She was issued Australian Passport No. H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts and circumstances, the
private respondent had renounced her Filipino citizenship. He contends that in
her application for alien certificate of registration and immigrant certificate of
residence, private respondent expressly declared under oath that she was a
citizen or subject of Australia; and said declaration forfeited her Philippine
citizenship, and operated to disqualify her to run for elective office.
As regards the COMELECs finding that private respondent had renounced her
Australian citizenship on January 15, 1992 before the Department of Immigration
and Ethnic Affairs of Australia and had her Australian passport cancelled on
February 11, 1992, as certified to by the Australian Embassy here in Manila,
petitioner argues that the said acts did not automatically restore the status of
private respondent as a Filipino citizen. According to petitioner, for the private
respondent to reacquire Philippine citizenship she must comply with the
mandatory requirements for repatriation under Republic Act 8171; and the
election of private respondent to public office did not mean the restoration of her
Filipino citizenship since the private respondent was not legally repatriated.
Coupled with her alleged renunciation of Australian citizenship, private
respondent has effectively become a stateless person and as such, is
disqualified to run for a public office in the Philippines; petitioner concluded.
Petitioner theorizes further that the Commission on Elections erred in applying
the principle of res judicata to the case under consideration; citing the ruling in
Moy Ya Lim Yao vs. Commissioner of Immigration, [3] that:
3

xxx 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 as res adjudicata, hence it has to be threshed out again and
again as the occasion may demand. xxx
The petition is unmeritorious.
The Philippine law on citizenship adheres to the principle of jus sanguinis.
Thereunder, a child follows the nationality or citizenship of the parents regardless
of the place of his/her birth, as opposed to the doctrine of jus soli which
determines nationality or citizenship on the basis of place of birth.
Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in Napier
Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino
3

citizen and native of Daet, Camarines Norte, and Theresa Marquez, an

Australian. Historically, this was a year before the 1935 Constitution took into
effect and at that time, what served as the Constitution of the Philippines were
the principal organic acts by which the United States governed the country.
These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of
August 29, 1916, also known as the Jones Law.
Among others, these laws defined who were deemed to be citizens of the
Philippine islands. The Philippine Bill of 1902 defined Philippine citizens as:
SEC. 4 xxx all inhabitants of the Philippine Islands continuing to reside therein
who were Spanish subjects on the eleventh day of April, eighteen hundred and
ninety-nine, and then resided in the Philippine Islands, and their children born
subsequent thereto, shall be deemed and held to be citizens of the Philippine
Islands and as such entitled to the protection of the United States, except such
as shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United States
and Spain signed at Paris December tenth, eighteen hundred and ninety-eight.
(underscoring ours)
The Jones Law, on the other hand, provides:
SEC. 2 That all inhabitants of the Philippine Islands who were Spanish subjects
on the eleventh day of April, eighteen hundred and ninety-nine, and then resided
in said Islands, and their children born subsequent thereto, shall be deemed and
held to be citizens of the Philippine Islands, except such as shall have elected to
preserve their allegiance to the Crown of Spain in accordance with the provisions
of the treaty of peace between the United States and Spain, signed at Paris
December tenth, eighteen hundred and ninety-eight, and except such others as
have since become citizens of some other country: Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who
cannot come within the foregoing provisions, the natives of the insular
possessions of the United States, and such other persons residing in the
Philippine Islands who are citizens of the United States, or who could become
citizens of the United States under the laws of the United States if residing
therein. (underscoring ours)
Under both organic acts, all inhabitants of the Philippines who were Spanish
subjects on April 11, 1899 and resided therein including their children are
deemed to be Philippine citizens. Private respondents father, Telesforo Ybasco,
was born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by
a certified true copy of an entry in the Registry of Births. Thus, under the
Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a
Philippine citizen. By virtue of the same laws, which were the laws in force at the

time of her birth, Telesforos daughter, herein private respondent Rosalind

Ybasco Lopez, is likewise a citizen of the Philippines.
The signing into law of the 1935 Philippine Constitution has established the
principle of jus sanguinis as basis for the acquisition of Philippine citizenship, to
wit:
(1) Those who are citizens of the Philippine Islands at the time of the adoption of
this Constitution.
(2) Those born in the Philippine Islands of foreign parents who, before the
adoption of this Constitution had been elected to public office in the Philippine
Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the
age of majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.

So also, the principle of jus sanguinis, which confers citizenship by virtue of blood
relationship, was subsequently retained under the 1973 [4] and 1987 [5]
Constitutions. Thus, the herein private respondent, Rosalind Ybasco Lopez, is a
Filipino citizen, having been born to a Filipino father. The fact of her being born
in Australia is not tantamount to her losing her Philippine citizenship. If Australia
4

4
5

follows the principle of jus soli, then at most, private respondent can also claim
Australian citizenship resulting to her possession of dual citizenship.
Petitioner also contends that even on the assumption that the private respondent
is a Filipino citizen, she has nonetheless renounced her Philippine citizenship.
To buttress this contention, petitioner cited private respondents application for an
Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence
(ICR), on September 19, 1988, and the issuance to her of an Australian passport
on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a
foreign country upon attaining twenty-one years of age or more;
(4) By accepting commission in the military, naval or air service of a foreign
country;
(5) By cancellation of the certificate of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine
armed forces in time of war, unless subsequently, a plenary pardon or amnesty
has been granted: and
(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws
in force in her husbands country, she acquires his nationality.
In order that citizenship may be lost by renunciation, such renunciation must be
express. Petitioners contention that the application of private respondent for an
alien certificate of registration, and her Australian passport, is bereft of merit.
This issue was put to rest in the case of Aznar vs. COMELEC [6] and in the more
recent case of Mercado vs. Manzano and COMELEC. [7]
6

In the case of Aznar, the Court ruled that the mere fact that respondent Osmena
was a holder of a certificate stating that he is an American did not mean that he
is no longer a Filipino, and that an application for an alien certificate of
registration was not tantamount to renunciation of his Philippine citizenship.
And, in Mercado vs. Manzano and COMELEC, it was held that the fact that
respondent Manzano was registered as an American citizen in the Bureau of
6
7

Immigration and Deportation and was holding an American passport on April 22,
1997, only a year before he filed a certificate of candidacy for vice-mayor of
Makati, were just assertions of his American nationality before the termination of
his American citizenship.

Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder
of an Australian passport and had an alien certificate of registration are not acts
constituting an effective renunciation of citizenship and do not militate against her
claim of Filipino citizenship. For renunciation to effectively result in the loss of
citizenship, the same must be express. [8] As held by this court in the aforecited
case of Aznar, an application for an alien certificate of registration does not
amount to an express renunciation or repudiation of ones citizenship. The
application of the herein private respondent for an alien certificate of registration,
and her holding of an Australian passport, as in the case of Mercado vs.
Manzano, were mere acts of assertion of her Australian citizenship before she
effectively renounced the same. Thus, at the most, private respondent had dual
citizenship - she was an Australian and a Filipino, as well.
8

Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s
was born in another country has not been included as a ground for losing ones
Philippine citizenship. Since private respondent did not lose or renounce her
Philippine citizenship, petitioners claim that respondent must go through the
process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private respondent
had dual citizenship, still, she is disqualified to run for governor of Davao
Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local
Government Code of 1991, which states:
SEC. 40. Disqualifications. The following persons are disqualified from running
for any elective local position:
xxx....................................xxx....................................xxx
(d) Those with dual citizenship;
xxx....................................xxx....................................xxx
Again, petitioners contention is untenable.
In the aforecited case of Mercado vs. Manzano, the Court clarified dual
citizenship as used in the Local Government Code and reconciled the same with
Article IV, Section 5 of the 1987 Constitution on dual allegiance. [9] Recognizing
situations in which a Filipino citizen may, without performing any act, and as an
9

8
9

involuntary consequence of the conflicting laws of different countries, be also a

citizen of another state, the Court explained that dual citizenship as a
disqualification must refer to citizens with dual allegiance. The Court succinctly
pronounced:
xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No.
7854, xxx 20 must be understood as referring to dual allegiance. Consequently,
persons with mere dual citizenship do not fall under this disqualification.
Thus, the fact that the private respondent had dual citizenship did not
automatically disqualify her from running for a public office. Furthermore, it was
ruled that for candidates with dual citizenship, it is enough that they elect
Philippine citizenship upon the filing of their certificate of candidacy, to terminate
their status as persons with dual citizenship. [10] The filing of a certificate of
candidacy sufficed to renounce foreign citizenship, effectively removing any
disqualification as a dual citizen. [11] This is so because in the certificate of
candidacy, one declares that he/she is a Filipino citizen and that he/she will
support and defend the Constitution of the Philippines and will maintain true faith
and allegiance thereto. Such declaration, which is under oath, operates as an
effective renunciation of foreign citizenship. Therefore, when the herein private
respondent filed her certificate of candidacy in 1992, such fact alone terminated
her Australian citizenship.
10

11

Then, too, it is significant to note that on January 15 1992, private respondent

executed a Declaration of Renunciation of Australian Citizenship, duly registered
in the Department of Immigration and Ethnic Affairs of Australia on May 12, 1992.
And, as a result, on February 11, 1992, the Australian passport of private
respondent was cancelled, as certified to by Second Secretary Richard F. Munro
of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC,
the aforesaid acts were enough to settle the issue of the alleged dual citizenship
of Rosalind Ybasco Lopez. Since her renunciation was effective, petitioners
claim that private respondent must go through the whole process of repatriation
holds no water.
Petitioner maintains further that when citizenship is raised as an issue in judicial
or administrative proceedings, the resolution or decision thereon is generally not
considered res judicata in any subsequent proceeding challenging the same;
citing the case of Moy Ya Lim Yao vs. Commissioner of Immigration. [12] He
insists that the same issue of citizenship may be threshed out anew.
12

Petitioner is correct insofar as the general rule is concerned, i.e. the principle of
res judicata generally does not apply in cases hinging on the issue of citizenship.
10
11
12

However, in the case of Burca vs. Republic, [13] an exception to this general rule
was recognized. The Court ruled in that case that in order that the doctrine of res
judicata may be applied in cases of citizenship, the following must be present:
13

1) a persons citizenship be raised as a material issue in a controversy where

said person is a party;
2) the Solicitor General or his authorized representative took active part in the
resolution thereof, and
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case of Moy Ya Lim Yao, the case
did not foreclose the weight of prior rulings on citizenship. It elucidated that
reliance may somehow be placed on these antecedent official findings, though
not really binding, to make the effort easier or simpler. [14] Indeed, there appears
sufficient basis to rely on the prior rulings of the Commission on Elections in
SPA. No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor
of the herein private respondent. The evidence adduced by petitioner is
substantially the same evidence presented in these two prior cases. Petitioner
failed to show any new evidence or supervening event to warrant a reversal of
such prior resolutions. However, the procedural issue notwithstanding,
considered on the merits, the petition cannot prosper.
14

WHEREFORE, the petition is hereby DISMISSED and the COMELEC

Resolutions, dated July 17, 1998 and January 15, 1999, respectively, in SPA No.
98-336 AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run
for governor of Davao Oriental. No pronouncement as to costs.
SO ORDERED.

13
14

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xxG.R. No. 120905 March 7, 1996
RENATO U. REYES, petitioner,
vs.
COMMISSION ON ELECTIONS, and ROGELIO DE CASTRO, respondents.
G.R. No. 120940 March 7, 1996
JULIUS O. GARCIA, petitioner,
vs.
COMMISSION ON ELECTIONS, and RENATO U. REYES, respondents.

MENDOZA., J.:p
For resolution are special civil actions of certiorari. The petition in G.R. No. 120905 seeks to
annul the resolution dated May 9, 1995 of the Second Division of the Commission on
Elections, declaring petitioner Renato U. Reyes disqualified from running for local office and
cancelling his certificate of candidacy, and the resolution dated July 3, 1995 of the
Commission en banc, denying petitioner's motion for reconsideration. On the other hand, the
petition in G.R. No. 120940, filed by Julius O. Garcia, has for its purpose the annulment of the
aforesaid resolution of July 3, 1995 of the Commission en banc insofar as it denies his motion
to be proclaimed the elected mayor of Bongabong, Oriental Mindoro, in view of the
disqualification of Renato U. Reyes.
On August 1, 1995, the Court issued a temporary restraining order directing the Commission
on Elections en banc to cease and desist from implementing its resolution of July 3, 1995. It
also ordered the two cases to be consolidated, inasmuch as they involved the same
resolutions of the COMELEC.

The facts are as follows:

Petitioner Renato U. Reyes was the incumbent mayor of the municipality of Bongabong,
Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994,
an administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr.
Ernesto Manalo. It was alleged, among other things, that petitioner exacted and collected
P50,000,00 from each market stall holder in the Bongabong Public Market; that certain
checks issued to him by the National Reconciliation and Development Program of the
Department of Interior and Local Government were never received by the Municipal Treasurer
nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27)
heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and
fattened the cattle for seven months.
In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty
of the charges and ordered his removal from office.
It appears that earlier, after learning that the Sanggunian had terminated the proceedings in
the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition
and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the
proceedings had been terminated without giving him a chance to be heard. A temporary
restraining order was issued by the court on February 7, 1995, enjoining the Sangguniang
Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang
Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration
of the temporary restraining order and without any injunction being issued by the Regional
Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila.
However, the latter refused to accept the decision. Subsequent attempts to serve the decision
upon petitioner himself also failed, as he also refused to accept the decision.
On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor
Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and peacefully
turn over the office to the incumbent vice mayor. But service of the order upon petitioner was
also refused.
Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the
Election Officer of the COMELEC in Bongabong.
On March 24, 1995, private respondent Rogelio de Castro, as registered voter of Bongabong,
sought the disqualification of petitioner as candidate for mayor, citing the Local Government
Code of 1991 (R.A. No .7160) which states:
40. Disqualification. The following persons are disqualified from running for any elective
local position:
....
(b) Those removed from office as a result of an administrative case.

Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner
Reyes was voted for in the elections held on May 8, 1995.
On May 9, 1995, the COMELEC's Second Division issued the questioned resolution, the
dispositive portion of which reads as follows:
WHEREFORE, respondent having been removed from office by virtue of Administrative Case
006-94, he is hereby DISQUALIFIED from running for public office, in conformity with Section
40, paragraph (b) of the 1991 Local Government Code. The respondent's Certificate of
Candidacy is CANCELLED in conformity with this resolution. The Election Officer of Bongabong,
Oriental Mindoro is ordered to amend the official list of candidates in Bongabong to reflect the
respondent's disqualification and to IMMEDIATELY circulate the amendment to the different
Boards of Election Inspectors in Bongabong upon the receipt of this decision.

On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of
the disqualification of Reyes by the COMELEC, proclaimed him the duly-elected mayor.
On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of the
COMELEC's Second Division, but his motion was denied. The COMELEC en banc declared
him to have been validly disqualified as candidate and, consequently, set aside his
proclamation as municipal mayor of Bongabong. Hence the petition in G.R. No. 120905,
which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the
ground that the decision in the administrative case against petitioner Reyes was not yet final
and executory and therefore could not be used as basis for his disqualification. It is contended
that the charges against him were rendered moot and academic by the expiration of the term
during which the acts complained of had allegedly been committed. Invoking the ruling in the
case of Aguinaldo v. Santos, 1 petitioner argues that his election on May 8, 1995 is a bar to his
disqualification.
On the other hand, it appears that petitioner Julius M. Garcia, who obtained the second
highest number of votes next to petitioner Reyes in the same elections of May 8, 1995,
intervened in the COMELEC on June 13, 1995 (after the main decision disqualifying Renato
Reyes was promulgated), contending that because Reyes was disqualified, he (Garcia) was
entitled to be proclaimed mayor of Bongabong, Oriental Mindoro.
In its resolution of July 3, 1995, the COMELEC en banc denied Garcia's prayer, citing the
ruling in Republic v. De la Rosa 2 that a candidate who obtains the second highest number of
votes in an election cannot be declared winner. Hence the petition in G.R. No. 120940.
Petitioner contends that (1) the COMELEC en banc should have decided his petition at least
15 days before the May 8, 1995 elections as provided in 78 of the Omnibus Elections Code,
and that because it failed to do so, many votes were invalidated which could have been for
him had the voters been told earlier who were qualified to be candidates; (2) that the decision
of the Sangguniang Panlalawigan was final and executory and resulted in the automatic
disqualification of petitioner, and the COMELEC did not need much time to decide the case
for disqualification against Reyes since the latter did not appeal the decision in the
administrative case ordering his removal; (3) that the COMELEC should have considered the
votes cast for Reyes as stray votes.

After deliberating on the petitions filed in these cases, the Court resolved to dismiss them for
lack of showing that the COMELEC committed grave abuse of discretion in issuing the
resolutions in question.
G.R. No. 120905
First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan, ordering
him removed from office, is not yet final because he has not been served a copy thereof.
It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a copy of its
decision was due to the refusal of petitioner and his counsel to receive the decision. As the
secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated
attempts had been made to serve the decision on Reyes personally and by registered mail,
but Reyes refused to receive the decision. Manzo's certification states:
On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of the decision
to the Counsel for Respondent, Atty. Rogelio V. Garcia, which said counsel refused to accept.
On March 23, 1995, Mr. Mario I. C. Manzo, Secretary to the Sangguniang Panlalawigan with Mr.
Marcelino B. Macatangay again went to the office of the Mayor of Bongabong to serve the
decision. Mayor Renato U. Reyes, himself present, refused to accept the ORDER enforcing the
decision citing particularly the pending case filed in the Sala of Judge Manuel A. Roman as the
basis of his refusal.
On [sic] 4:40 p.m., of the same date, the Secretary to the Sangguniang Panlalawigan, unable to
serve the ORDER, mailed the same (registered mail receipt No. 432) on the Bongabong Post
Office to forward the ORDER to the Office of Mayor Renato U. Reyes.
On March 28, 1995 said registered mail was returned to the Sangguniang Panlalawigan with the
following inscriptions on the back by the Postmaster:
1) 1st attempt addressee out of town 9:15 a.m., 3-23-95
2) 2nd attempt addressee cannot be contacted, out of town, 8:50 a.m., 3-24-95.
3) 3rd attempt addressee not contacted out of town 8:15 a.m., 3-24-95.
4) 4th attempt addressee refused to accept 8:15 a.m., 3-27-95.
On March 24, 1995, Mr. Marcelino B. Macatangay, again went to Bongabong to serve the same
ORDER enforcing the decision. Mayor Renato U. Reyes was not present so the copy was left on
the Mayor's Office with comments from the employees that they would not accept the same. 3

Rule 13, 3 and 7 of the Rules of Court provide for the service of final orders and judgments
either personally or by mail. Personal service is completed upon actual or constructive
delivery, which may be made by delivering a copy personally to the party or his attorney, or by
leaving it in his office with a person having charge thereof, or at his residence, if his office is
not known. 4 Hence service was completed when the decision was served upon petitioner's
counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the
Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner
Reyes. Although the mail containing the decision was not claimed by him, service was

deemed completed five days after the last notice to him on March 27, 1995. 5
If a judgment or decision is not delivered to a party for reasons attributable to him, service is
deemed completed and the judgment or decision will be considered validly served as long as
it can be shown that the attempt to deliver it to him would be valid were it not for his or his
counsel's refusal to receive it.
Indeed that petitioner's counsel knew that a decision in the administrative case had been
rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan
not to have the decision served upon him and his client while their petition for certiorari in the
Regional Trial Court was
pending. 6 His refusal to receive the decision may, therefore, be construed as a waiver on his
part to have a copy of the decision.
The purpose of the rules on service is to make sure that the party being served with the
pleading, order or judgment is duly informed of the same so that he can take steps to protect
his interests, enable a party to file an appeal or apply for other appropriate reliefs before the
decision becomes final.
In practice, service means the delivery or communication of a pleading, notice or other papers in
a case to the opposite party so as to charge him with receipt of it, and subject him to its legal
effect. 7

In the case at bar, petitioner was given sufficient notice of the decision. Prudence required
that, rather than resist the service, he should have received the decision and taken an appeal
to the Office of the President in accordance with R.A. No. 7160, 67. 8 But petitioner did not
do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service
upon petitioner.
The net result is that when the elections were held on May 8, 1995, the decision of the
Sangguniang Panlalawigan had already become final and executory. The filing of a petition
for certiorari with the Regional Trial Court did not prevent the administrative decision from
attaining finality. An original action of certiorari is an independent action and does not interrupt
the course of the principal action nor the running of the reglementary period involved in the
proceeding. 9
Consequently, to arrest the course of the principal action during the pendency of the certiorari
proceedings, there must be a restraining order or a writ of preliminary injunction from the
appellate court directed to the lower court. 10

In the case at bar, although a temporary restraining order was issued by the Regional Trial
Court, no preliminary injunction was subsequently issued. The temporary restraining order
issued expired after 20 days. From that moment on, there was no more legal barrier to the
service of the decision upon petitioner.
Petitioner claims that the decision cannot be served upon him because at the hearing held on
February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang
Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the
Sangguniang Panlalawigan pending final resolution of the petition for certiorari.

The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan
cannot bind the Sangguniang Panlalawigan. It was illegal . And it would have been no less
illegal for the Sangguniang Panlalawigan to have carried it out because R.A. No. 7160, 66
(a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall
immediately be furnished to respondent and/or interested parties." It was the Sangguniang
Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed
the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to
perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner
Reyes.
Second. The next question is whether there election of petitioner rendered the administrative
charges against him moot and academic. Petitioner invokes the ruling in Aguinaldo v.
COMELEC, 11 in which it was held that a public official could not be removed for misconduct
committed during a prior term and that his reelection operated as a condonation of the
officer's previous misconduct to the extent of cutting off the right to remove him therefor. But
that was because in that case, before the petition questioning the validity of the administrative
decision removing petitioner could be decided, the term of office during which the alleged
misconduct was committed expired. 12 Removal cannot extend beyond the term during which
the alleged misconduct was committed. If a public official is not removed before his term of
office expires, he can no longer be removed if he is thereafter reelected for another term. This
is the rationale for the ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought
an action to question the decision in the administrative case, the temporary restraining order
issued in the action he brought lapsed, with the result that the decision was served on
petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to
the Office of the President. He was thus validly removed from office and, pursuant to 40(b)
of the Local Government Code, he was disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there was no provision
similar to 40(b) which disqualifies any person from running for any elective position on the
ground that he has been removed as a result of an administrative case. The Local
Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the
Court in the first Aguinaldo
case: 13
The COMELEC applied Section 40(b) of the Local Government Code Republic Act 7160) which
provides:
Sec. 40. The following persons are disqualified from running for any elective local position:
.....
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992. . . . There is no provision in the statute
which would clearly indicate that the same operates retroactively.

It, therefore, follows that 40(b) of the Local Government Code is not applicable to the present
case.
Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the
then Secretary of Local Government was questioned by the petitioner in this Court and that to
date, the petition remains unresolved.

At any rate, petitioner's claim that he was not given time to present his evidence in the
administrative case has no basis, as the following portion of the decision of the Sangguniang
Panlalawigan makes clear:
On November 28, 1994 the Sanggunian received from respondent's counsel a motion for
extension of time to file a verified answer within 15 days from November 23, 1994. In the interest
of justice another fifteen (15) day period was granted the respondent.
On December 5, 1994 which is the last day for filing his answer, respondent instead filed a
motion to dismiss and set the same for hearing on December 22, 1994.
....
On January 4, 1995, the motion to dismiss was denied for lack of merit and the order of denial
was received by respondent on January 7, 1995. Considering the fact that the last day within
which to file his answer fell on December 5, 1994, respondent is obliged to file the verified
answer on January 7, 1995 when he received the order denying his motion to dismiss.
In the hearing of the instant case on January 26, 1995, the counsel for the complainant
manifested that he be allowed to present his evidence for failure of the respondent to file his
answer albeit the lapse of 19 days from January 7, 1995.
The manifestation of complainant's counsel was granted over the objection of the respondent,
and the Sanggunian in open session, in the presence of the counsel for the respondent, issued
an order dated January 26, 1995 quoted as follows:
"As shown from the record of this case, Mayor Renato U. Reyes of Bongabong
failed to file his answer within the time prescribed by law, after the motion to
dismiss was denied by this Sanggunian. The Sanggunian declares that
respondent Mayor Renato U. Reyes failed to file his answer to the complaint
filed against him within the reglementary period of fifteen (15) days. Counsel for
respondent requested for reconsideration twice, which oral motions for
reconsideration were denied for lack of merit.
Art. 126 (a) (1) provides that failure of respondent to file his verified answer
within fifteen (15) days from receipt of the complaint shall be considered a
waiver of his rights to present evidence in his behalf.
It is important to note that this case should be heard in accordance with what is
provided for in the constitution that all parties are entitled to speedy disposition
of their cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its
authority to investigate this case come February 8, 1995 and therefore, in the
interest of justice and truth the Sanggunian must exercise that authority by
pursuing the hearing of this case.
Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will
present his evidence on February 2, 3, and 6, 1995, and the counsel for

respondent will be given a chance to cross-examine the witnesses that may be

presented thereat."
....
On February 2, 1995, the respondent through counsel despite due notice in open session, and
by registered mail (registry receipt no. 1495) dated January 27, 1995, failed to appear. No
telegram was received by this body to the effect that he will appear on any of the dates stated in
the Order of January 26, 1995. Indeed, such in action is a waiver of the respondent to whatever
rights he may have under our laws.
All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one
(61) days to file his verified answer however, he resorted to dilatory motions which in the end
proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his
answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt
of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1).
Art. 126 of Rules and Regulations implementing the Local Government Code of 1991). All
persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies (Sec. 16, Art. III of the Constitution).

Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed
to do so. Nonetheless, he was told that the complainant would be presenting his evidence
and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But
on the date set, he failed to appear. He would say later that this was because he had filed a
motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of
delay he employed to render the case against him moot by his election.
G.R. No. 120940
We likewise find no grave abuse of discretion on the part of the COMELEC in denying
petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of
Renato U. Reyes.
That the candidate who obtains the second highest number of votes may not be proclaimed
winner in case the winning candidate is disqualified is now settled. 14 The doctrinal instability
caused by see-sawing rulings 15 has since been removed. In the latest ruling 16 on the
question, this Court said:
To simplistically assume that the second placer would have received the other votes would be to
substitute our judgment for the mind of the voter. The second placer is just that, a second
placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He
could not be considered the first among qualified candidates because in a field which excludes
the disqualified candidate, the conditions would have substantially changed. We are not
prepared to extrapolate the results under the circumstances.

Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for
Reyes are presumed to have been cast in the belief that Reyes was qualified and for that
reason can not be treated as stray, void, or meaningless. 17 The subsequent finding that he is
disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for
him.

As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not
deciding the case before the date of the election, suffice it to say that under R.A. No. 6646,
6, the COMELEC can continue proceedings for disqualification against a candidate even after
the election and order the suspension of his proclamation whenever the evidence of his guilt
is strong. For the same reason, we find no merit in the argument that the COMELEC should
have seen right away that Reyes had not exhausted administrative remedies by appealing the
decision of the Sangguniang Panlalawigan and, therefore, should have disqualified him
before the elections.
WHEREFORE, the petition in G.R. 120905 and G.R. No, 120940 are DISMISSED for lack of
merit.
SO ORDERED.

xxi
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xxiv
xxv
xxvi
xxviiEN BANC
[G.R. No. 121592. July 5, 1996]
ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL
VILLANUEVA, respondents.
RESOLUTION
FRANCISCO, J.:
Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two
resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of
discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against
petitioner before the COMELEC.[1]
The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the
position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor,
Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991)[2] which provides as
follows:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment within two (2) years after serving sentence;
(b) x x x

xxx

x x x.

In disqualifying the petitioner, the COMELEC held that:

Documentary evidence x x x established that herein respondent (petitioner in this case) was found
guilty by the Municipal Trial Court, x x x in Criminal Case No. 14723 for violation of P.D. 1612,
(otherwise known as the Anti-fencing Law) in a Decision dated June 1,1990. Respondent appealed the
said conviction with the Regional Trial Court x x x, which however, affirmed respondents conviction
in a Decision dated November 14,1990. Respondents conviction became final on January 18,1991.
x x x x x x

xxx

x x x, there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna
this coming elections. Although there is dearth of jurisprudence involving violation of the AntiFencing Law of 1979 or P.D.1612 x x x, the nature of the offense under P.D. 1612 with which
respondent was convicted certainly involves moral turpitude x x x.[3]
The second assailed resolution, dated August 28, 1995, denied petitioners motion for reconsideration.
In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to
his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended
the execution of the judgment of conviction and all other legal consequences flowing therefrom,
rendered inapplicable Section 40 (a) as well.[4]
The two (2) issues to be resolved are:
1. Whether or not the crime of fencing involves moral turpitude.
2. Whether or not a grant of probation affects Section 40 (a)s applicability.
Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when
prior conviction of a crime becomes a ground for disqualification - i, e., when the conviction by final
judgment is for an offense involving moral turpitude. And in this connection, the Court has
consistently adopted the definition in Blacks Law Dictionary of moral turpitude as:
x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen,
or to society in general, contrary to the accepted and customary rule of right and duty between man and
woman or conduct contrary to justice, honesty, modesty, or good morals.[5]
Not every criminal act, however, involves moral turpitude. It is for this reason that as to what crime
involves moral turpitude, is for the Supreme Court to determine.[6] In resolving the foregoing
question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude,
while crimes mala prohibita do not[7], the rationale of which was set forth in Zari v. Flores,[8] to
wit:

It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by
law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The
doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does
not, however, include such acts as are not of themselves immoral but whose illegality lies in their being
positively prohibited.[9]
This guideline nonetheless proved short of providing a clear-cut solution, for in International Rice
Research Institute v. NLRC,[10] the Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum.
There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes
which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a
crime involves moral turpitude is ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statute.[11]
The Court in this case shall nonetheless dispense with a review of the facts and circumstances
surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction.
Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination
of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements
alone.
Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as:
a. x x x the act of any person who, with intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any
article, item, object or anything of value which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft.[12]
From the foregoing definition may be gleaned the elements of the crime of fencing which are:
"1. A crime of robbery or theft has been committed;
2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any
article, item, object or anything of value, which have been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or anything of value
has been derived from the proceeds of the crime of robbery or theft; and [Underscoring supplied.]
4. There is, on the part of the accused, intent to gain for himself or for another.[13]
Moral turpitude is deducible from the third element. Actual knowledge by the fence of the fact that
property received is stolen displays the same degree of malicious deprivation of ones rightful property
as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude.
And although the participation of each felon in the unlawful taking differs in point in time and in
degree, both the fence and the actual perpetrator/s of the robbery or theft invaded ones peaceful
dominion for gain - thus deliberately reneging in the process private duties they owe their
fellowmen or society in a manner contrary to x x x accepted and customary rule of right and duty
x x x, justice, honesty x x x or good morals. The duty not to appropriate, or to return, anything

acquired either by mistake or with malice is so basic it finds expression in some key provisions of the
Civil Code on Human Relations and Solutio Indebiti, to wit:
Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.
Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
Article 22. Every person who through an act of performance by another, or any other means, acquires
or comes into possession of something at the expense of the latter without just or legal ground, shall
return the same to him.
Article 2154. If something is received when there is no right to demand it, and it was unduly
delivered through mistake, the obligation to return it arises.
The same underlying reason holds even if the fence did not have actual knowledge, but merely
should have known the origin of the property received. In this regard, the Court held:
When knowledge of the existence of a particular fact is an element of the offense, such knowledge is
established if a person is aware of the high probability of its existence unless he actually believes that it
does not exist. On the other hand, the words should know denote the fact that a person of reasonable
prudence and intelligence would ascertain the fact in the performance of his duty to another or would
govern his conduct upon assumption that such fact exists.[14] [Italics supplied.]
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the
object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances
include the time and place of the sale, both of which may not be in accord with the usual practices of
commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly
engaged in the business of selling goods may likewise suggest the illegality of their source, and
therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612
that mere possession of any goods, x x x, object or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing- a presumption that is, according to the
Court, reasonable for no other natural or logical inference can arise from the established fact of x x x
possession of the proceeds of the crime of robbery or theft.[15] All told, the COMELEC did not err in
disqualifying the petitioner on the ground that the offense of fencing of which he had been previously
convicted by final judgment was one involving moral turpitude.
Anent the second issue where petitioner contends that his probation had the effect of suspending the
applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of
probation is only to suspend the execution of the sentence.[16] Petitioners conviction of fencing which
we have heretofore declared as a crime of moral turpitude and thus falling squarely under the
disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the
grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when
the accused applies for probation, although it is not executory pending resolution of the application for

probation.[17] Clearly then, petitioners theory has no merit.

ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed
resolutions of the COMELEC dated May 6,1995 and August 28,1995 are AFFIRMED in toto.
SO ORDERED.

xxviii
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xxxviii
xxxix
xl
xliFACTS:
Rolando P. Dela Torre seeks the nullification of two resolutions issued by COMELEC allegedly with
grave abuse of discretion amounting to lack of jurisdiction in a case for disqualification filed against
him.
The first resolution dated May 6, 1995 declared the Dela Torre disqualified from running for the
position of Mayor of Cavinti, Laguna for the reason that under Section 40(a) of the LGC a person who
has been sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment within two (2) years after serving sentence are
disqualified to run for any elective position.
COMELEC held that by established evidence Dela Torre was found guilty by the MTC for violation of
P.D. 1612 (Anti-fencing Law) in June 1, 1990. Dela Torre appealed the said conviction with the RTC
which however, affirmed MTCs decision. Said conviction became final on January 18, 1991.
The second resolution dated August 28, 1995, denied Dela Torres MR. In said motion, Dele Torre
claimed that Section 40 (a) of the LGC does not apply to his case because MTC granted his probation
petition which suspended the execution of the judgment of conviction and all other legal consequences
flowing there from.
ISSUES:
1. Whether or not the crime of fencing involves moral turpitude?
2. Whether or not a grant of probation affects Section 40 (a)'s applicability?
HELD:

I. Crime of Fencing involves moral turpitude?

Not every criminal act, involves moral turpitude. The Court is guided by one of the general rules that
crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which
was set forth in the case of Zari v. Flores. However the guidelines set forth proved short of providing a
clear-cut solutionin another case where they said that there are crimes which are mala in se and yet but
rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala
prohibita only. It is then ultimately a question of fact and frequently depends on all the circumstances
surrounding the violation of the statue.
Fencing is defined in Section 2 of P.D. 1612 the act of any person who, with intent to gain for himself
or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and
sell, or in any manner deal in any article, item, object or anything of value which he knows, or should
be known to him, to have been derived from the proceeds of the crime of robbery or theft.
Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that
property received is stolen displays the same degree of malicious deprivation of one's rightful property
as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude.
The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic
it finds expression in some key provisions of the Civil Code on "Human Relations" and "Solutio
Indebiti
All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of
fencing of which he had been previously convicted by final judgment was one involving moral
turpitude.
II. Grant of Probation affects Section 40(a) of LGC
Dela Torres conviction of fencing which we have declared as a crime of moral turpitude and thus
falling squarely under the disqualification found in Section 40 (a), subsists and remains totally
unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case
ipso facto attains finality when the accused applies for probation, although it is not executory pending
resolution of the application for probation.
Case DIMISSED and the assailed resolutions of the COMELEC dated May 6, 1995 and August 28,
1995 are AFFIRMED in toto.

xlii
xliiiEN BANC
[G.R. No. 154512. November 12, 2002]

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner, vs. THE
COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA) of Puerto
Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA Interim
Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding Officer Punong Bgy.
EARL S. BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR. respondents.
[G.R. No. 154683. November 12, 2002]
VICENTE S. SANDOVAL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS, respondent.
[G.R. Nos. 155083-84. November 12, 2002]
MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners, vs. THE
COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents.
DECISION
CARPIO, J.:
The Case
Before us are consolidated petitions for certiorari[1] seeking the reversal of the resolutions issued by the
Commission on Elections (COMELEC for brevity) in relation to the recall election for mayor of
Puerto Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto
Princesa convened themselves into a Preparatory Recall Assembly (PRA for brevity) at the
Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate
the recall[2] of Victorino Dennis M. Socrates (Socrates for brevity) who assumed office as Puerto
Princesas mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn,
president of the Association of Barangay Captains, as interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 (Recall Resolution for brevity) which
declared its loss of confidence in Socrates and called for his recall. The PRA requested the COMELEC
to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC), to
nullify and deny due course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc[3] promulgated a resolution dismissing for lack of merit
Socrates petition. The COMELEC gave due course to the Recall Resolution and scheduled the recall
election on September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the
calendar of activities and periods of certain prohibited acts in connection with the recall election. The

COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10
days.
On August 23, 2002, Edward M. Hagedorn (Hagedorn for brevity) filed his certificate of candidacy
for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo (Adovo for brevity) and Merly E. Gilo (Gilo for
brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn
from running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a
certain Bienvenido Ollave, Sr. (Ollave for brevity) filed a petition-in-intervention in SPA No. 02-492
also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another
petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and
involving the same issues. The petitions were all anchored on the ground that Hagedorn is
disqualified from running for a fourth consecutive term, having been elected and having served as
mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for
the same post. Subsequently, SPA Nos. 02-492 and 02-539 were consolidated.
In a resolution promulgated on September 20, 2002, the COMELECs First Division[4] dismissed for
lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in the
recall election. The COMELEC also reset the recall election from September 7, 2002 to September 24,
2002.
On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for
reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn
qualified to run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M.
No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election on
September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution.
Socrates cites the following circumstances as legal infirmities attending the convening of the PRA and
its issuance of the Recall Resolution: (1) not all members of the PRA were notified of the meeting to
adopt the resolution; (2) the proof of service of notice was palpably and legally deficient; (3) the
members of the PRA were themselves seeking a new electoral mandate from their respective
constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the
PRA proceedings were conducted in a manner that violated his and the publics constitutional right to
information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21,
2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a ten-day
campaign period. He prayed that the COMELEC be enjoined from holding the recall election on

September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days to
campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from
implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September 7,
2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from
September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the
candidates an additional 15 days from September 7, 2002 within which to campaign. Thus, the
COMELEC reset the recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELECs resolutions dated September 20, 2002 and
September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in
the recall election. They likewise prayed for the issuance of a temporary restraining order to enjoin the
proclamation of the winning candidate in the recall election.
Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorns
qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions
against a fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from proclaiming
any winning candidate in the recall election until further orders from the Court. Petitioners were
required to post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention
seeking the same reliefs as those sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238
votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning
candidate and to allow him to assume office to give effect to the will of the electorate.
On October 1, 2002, the Court granted Socrates motion for leave to file a petition for intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due
course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall election of
Puerto Princesa on September 24, 2002.

In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in fixing
a campaign period of only 10 days has become moot. Our Resolution of September 3, 2002 and
COMELEC Resolution No. 5708 granted an additional 15 days for the campaign period as prayed for
by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the
Recall Resolution despite the absence of notice to 130 PRA members and the defective service of
notice to other PRA members. The COMELEC, however, found that
On various dates, in the month of June 2002, the proponents for the Recall of incumbent City
Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members
thereof pursuant to Section 70 of the Local Government Code. Copies of the said notice are in
Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices
were attached to the Petition and marked as Annex G of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos
establishing the same were attached to the Petition and marked as Annex H. The proponents
likewise utilized the broadcast mass media in the dissemination of the convening of the PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25
names of provincial elective officials, print and broadcast media practitioners, PNP officials,
COMELEC city, regional and national officials, and DILG officials].
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The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified
that upon a thorough and careful verification of the signatures appearing in PRA Resolution 0102, x x x the majority of all members of the PRA concerned approved said resolution. She
likewise certified that not a single member/signatory of the PRA complained or objected as to
the veracity and authenticity of their signatures.
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated
10 July 2002, stated, upon proper review, all documents submitted are found in order.
The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following
recommendations:
This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and
substance. That the PRA was validly constituted and that the majority of all members thereof approved
Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.
x x x .
This Court is bound by the findings of fact of the COMELEC on matters within the competence and
expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v. COMELEC,[5]

which also dealt with alleged defective service of notice to PRA members, we ruled that
Needless to state, the issue of propriety of the notices sent to the PRA members is factual in
nature, and the determination of the same is therefore a function of the COMELEC. In the
absence of patent error, or serious inconsistencies in the findings, the Court should not disturb the
same. The factual findings of the COMELEC, based on its own assessments and duly supported
by gathered evidence, are conclusive upon the court, more so, in the absence of a substantiated
attack on the validity of the same.
In the instant case, we do not find any valid reason to hold that the COMELECs findings of fact are
patently erroneous.
Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2,
2002 because a majority of PRA members were seeking a new electoral mandate in the barangay
elections scheduled on July 15, 2002. This argument deserves scant consideration considering that
when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They
were all de jure sangguniang barangay members with no legal disqualification to participate in the
recall assembly under Section 70 of the Local Government Code.
Socrates bewails that the manner private respondents conducted the PRA proceedings violated his
constitutional right to information on matters of public concern. Socrates, however, admits receiving
notice of the PRA meeting and of even sending his representative and counsel who were present during
the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the Recall
Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets,
notices sent to PRA members, and authenticated master list of barangay officials in Puerto Princesa.
Socrates had the right to examine and copy all these public records in the official custody of the
COMELEC. Socrates, however, does not claim that the COMELEC denied him this right. There is no
legal basis in Socrates claim that respondents violated his constitutional right to information on
matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of
the Recall Resolution and in scheduling the recall election on September 24, 2002.
Second Issue: Hagedorns qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution,
which states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local
Government Code, which provides:

Section 43. Term of Office. (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official was
elected.
These constitutional and statutory provisions have two parts. The first part provides that an elective
local official cannot serve for more than three consecutive terms. The clear intent is that only
consecutive terms count in determining the three-term limit rule. The second part states that voluntary
renunciation of office for any length of time does not interrupt the continuity of service. The clear
intent is that involuntary severance from office for any length of time interrupts continuity of service
and prevents the service before and after the interruption from being joined together to form a
continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end
of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by
the prohibition for two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the question
asked was whether there would be no further election after three terms, or whether there would be no
immediate reelection after three terms. This is clear from the following deliberations of the
Constitutional Commission:
THE PRESIDENT:

The Acting Floor Leader is recognized.

MR. ROMULO:[6] We are now ready to discuss the two issues, as indicated on the blackboard,
and these are Alternative No. I where there is no further election after a total of three terms and
Alternative No. 2 where there is no immediate reelection after three successive terms.[7]
The Journal of the Constitutional Commission reports the following manifestation on the term of
elective local officials:
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1)
Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no
immediate reelection after three successive terms).[8]
The framers of the Constitution used the same no immediate reelection question in voting for the
term limits of Senators[9] and Representatives of the House.[10]
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth

term as long as the reelection is not immediately after the end of the third consecutive term. A recall
election mid-way in the term following the third consecutive term is a subsequent election but not an
immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other
subsequent election involving the same term of office. What the Constitution prohibits is a
consecutive fourth term. The debates in the Constitutional Commission evidently show that the
prohibited election referred to by the framers of the Constitution is the immediate reelection after the
third term, not any other subsequent election.
If the prohibition on elective local officials is applied to any election within the three-year full term
following the three-term limit, then Senators should also be prohibited from running in any election
within the six-year full term following their two-term limit. The constitutional provision on the term
limit of Senators is worded exactly like the term limit of elective local officials, thus:
No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.[11]
In the debates on the term limit of Senators, the following exchange in the Constitutional Convention is
instructive:
GASCON:[12] I would like to ask a question with regard to the issue after the second term. We
will allow the Senator to rest for a period of time before he can run again?
DAVIDE:[13]

That is correct.

GASCON:
And the question that we left behind before - if the Gentleman will remember was: How long will that period of rest be? Will it be one election which is three years or one term
which is six years?
DAVIDE:
If the Gentleman will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether such election
will be on the third or on the sixth year thereafter, this particular member of the Senate can run.
So, it is not really a period of hibernation for six years. That was the Committees stand.
GASCON:
So, effectively, the period of rest would be three years at the least.[14]
(Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run after only three years[15] following
his completion of two terms. The framers expressly acknowledged that the prohibited election refers
only to the immediate reelection, and not to any subsequent election, during the six-year period
following the two term limit. The framers of the Constitution did not intend the period of rest of an
elective official who has reached his term limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate
reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection
that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn

did not seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in
full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution
and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term
limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in
the 2001 elections.[16] Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After
Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of
September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was
Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorns service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition. Hagedorns three consecutive terms ended on June 30,
2001. Hagedorns new recall term from September 24, 2002 to June 30, 2004 is not a seamless
continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorns
previous three-terms with his new recall term to make the recall term a fourth consecutive term because
factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002
which broke the continuity or consecutive character of Hagedorns service as mayor.
In Lonzanida v. Comelec,[17] the Court had occasion to explain interruption of continuity of service in
this manner:
x x x The second sentence of the constitutional provision under scrutiny states, Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected. The clear intent of the framers
of the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the peoples choice and grant their elected
official full service of a term is evident in this provision. Voluntary renunciation of a term does
not cancel the renounced term in the computation of the three-term limit; conversely, involuntary
severance from office for any length of time short of the full term provided by law amounts to
an interruption of continuity of service. x x x. (Emphasis supplied)
In Hagedorns case, the nearly 15-month period he was out of office, although short of a full term of
three years, constituted an interruption in the continuity of his service as mayor. The Constitution does
not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption
for any length of time, as long as the cause is involuntary, is sufficient to break an elective local
officials continuity of service.
In the recent case of Adormeo v. Comelec and Talaga,[18] a unanimous Court reiterated the rule that an
interruption consisting of a portion of a term of office breaks the continuity of service of an elective
local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as mayor of
Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao.
However, in the recall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao
from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections,
Raymundo Adormeo, the other candidate for mayor, petitioned for Talagas disqualification on the
ground that Talaga had already served three consecutive terms as mayor.

Thus, the issue in Adormeo was whether Talagas recall term was a continuation of his previous two
terms so that he was deemed to have already served three consecutive terms as mayor. The Court ruled
that Talaga was qualified to run in the 2001 elections, stating that the period from June 30, 1998 to
May 12, 2000 when Talaga was out of office interrupted the continuity of his service as mayor.
Talagas recall term as mayor was not consecutive to his previous two terms because of this
interruption, there having been a break of almost two years during which time Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of office interrupts the continuity of
his service and prevents his recall term from being stitched together as a seamless continuation of his
previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months
Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being
stitched together as a seamless continuation of his previous three consecutive terms. The only
difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the
interruption occurred after the first two consecutive terms. In the instant case, the interruption
happened after the first three consecutive terms. In both cases, the respondents were seeking election
for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the
recall election. Talagas recall term did not retroact to include the tenure in office of his predecessor.
If Talagas recall term was made to so retroact, then he would have been disqualified to run in the 2001
elections because he would already have served three consecutive terms prior to the 2001 elections.
One who wins and serves a recall term does not serve the full term of his predecessor but only the
unexpired term. The period of time prior to the recall term, when another elective official holds office,
constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the
winner in the recall election cannot be charged or credited with the full term of three years for
purposes of counting the consecutiveness of an elective officials terms in office.
In the same manner, Hagedorns recall term does not retroact to include the tenure in office of Socrates.
Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the recall term is
made to retroact to June 30, 2001, for only then can the recall term constitute a fourth consecutive term.
But to consider Hagedorns recall term as a full term of three years, retroacting to June 30, 2001,
despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This
Court cannot declare as consecutive or successive terms of office which historically and factually are
not.
Worse, to make Hagedorns recall term retroact to June 30, 2001 creates a legal fiction that unduly
curtails the freedom of the people to choose their leaders through popular elections. The concept of
term limits is in derogation of the sovereign will of the people to elect the leaders of their own
choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will
of the people. As this Court aptly stated in Borja, Jr. v. Comelec:
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that
the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the

succeeding election following the expiration of the third consecutive term. Monsod warned
against prescreening candidates [from] whom the people will choose as a result of the proposed
absolute disqualification, considering that the draft constitution contained provisions recognizing
people's power.[19] (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is the start of a new term
following the interruption. An official elected in recall election serves the unexpired term of the
recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit.
This is clear from the following discussion in the Constitutional Commission:
SUAREZ:[20] For example, a special election is called for a Senator, and the Senator newly
elected would have to serve the unexpired portion of the term. Would that mean that serving the
unexpired portion of the term is already considered one term? So, half a term, which is actually
the correct statement, plus one term would disqualify the Senator concerned from running? Is
that the meaning of this provision on disqualification, Madam President?
DAVIDE: Yes, because we speak of term, and if there is a special election, he will serve only
for the unexpired portion of that particular term plus one more term for the Senator and two more
terms for the Members of the Lower House.[21]
Although the discussion referred to special elections for Senators and Representatives of the House, the
same principle applies to a recall election of local officials. Otherwise, an elective local official who
serves a recall term can serve for more than nine consecutive years comprising of the recall term plus
the regular three full terms. A local official who serves a recall term should know that the recall term is
in itself one term although less than three years. This is the inherent limitation he takes by running and
winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for
mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor
which ended on June 30, 2001;
2. Hagedorns continuity of service as mayor was involuntarily interrupted from June 30, 2001 to
September 24, 2002 during which time he was a private citizen;
3. Hagedorns recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June
30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive
term; and
4. Term limits should be construed strictly to give the fullest possible effect to the right of the
electorate to choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The
temporary restraining order issued by this Court on September 24, 2002 enjoining the proclamation of
the winning candidate for mayor of Puerto Princesa in the recall election of September 24, 2002 is
lifted. No costs.

SO ORDERED.
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livetition:Consolidated petitions for certiorari[1] seeking the reversal of theresolutions issued by the
Commission on Elections (COMELEC for brevity) in

relation to the recall election for mayor of Puerto Princesa City, Palawan.Ruling: The petitions in G.R. Nos. 154512,
154683 and 155083-84 are DISMISSED.The temporary restraining order issued by this Court on September 24,
2002enjoining the proclamation of the winning candidate for mayor of Puerto Princesain the recall election of September
24, 2002 is lifted
.FACTS:G.R. No. 154512Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August14, 2002 in
E.M. No. 02-010 (RC) which gave due course to the Recall Resolutionand scheduled the recall election on September 7,
2002.Socrates alleges that the COMELEC gravely abused its discretion in upholding theRecall Resolution. Socrates cites
the following circumstances as legalinfirmities attending the convening of the PRA and its issuance of the
RecallResolution: (1) not all members of the PRA were notified of the meeting to adoptthe resolution; (2) the proof of
service of notice was palpably and legallydeficient; (3) the members of the PRA were themselves seeking a new
electoralmandate from their respective constituents; (4) the adoption of the resolution wasexercised with grave abuse of
authority; and (5) the PRA proceedings wereconducted in a manner that violated his and the publics
constitutional right to

information.
G.R. No. 154683Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673dated August 21,
2002 insofar as it fixed the recall election on September 7,2002, giving the candidates only a ten-day campaign period. He
prayed that theCOMELEC be enjoined from holding the recall election on September 7, 2002 and thata new date be
fixed giving the candidates at least an additional 15 days tocampaign.In a resolution dated September 3, 2002, the Court
en banc enjoined the COMELECfrom implementing Resolution No. 5673 insofar as it fixed the date of the recallelection
on September 7, 2002. The Court directed the COMELEC to give thecandidates an additional fifteen 15 days from
September 7, 2002 within which tocampaign.Accordingly, on September 9, 2002, the COMELEC en banc issued
Resolution No. 5708giving the candidates an additional 15 days from September 7, 2002 within which tocampaign. Thus,
the COMELEC reset the recall election to September 24, 2002.G.R. Nos. 155083-84Petitioners Adovo, Gilo and
Ollave assail the COMELECs resolutions dated

September 20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaringHagedorn qualified to run for
mayor in the recall election. They likewise prayedfor the issuance of a temporary restraining order to enjoin the
proclamation ofthe winning candidate in the recall election.Petitioners argue that the COMELEC gravely abused its
discretion in upholdingHagedorns qualification to run for mayor in the recall election despite the


constitutional and statutory prohibitions against a fourth consecutive term forelective local officials.
In a resolution dated September 24, 2002, the Court ordered the COMELEC to desistfrom proclaiming any winning
candidate in the recall election until further ordersfrom the Court. Petitioners were required to post a P20,000 bond.On
September 27, 2002, Socrates filed a motion for leave to file an attachedpetition for intervention seeking the same reliefs
as those sought by Adovo, Giloand Ollave.In the meantime, Hagedorn garnered the highest number of votes in the
recallelection with 20,238 votes. Rival candidates Socrates and Sandoval obtained17,220 votes and 13,241 votes,
respectively.Hagedorn filed motions to lift the order restraining the COMELEC from proclaimingthe winning candidate
and to allow him to assume office to give effect to the willof the electorate.On October 1, 2002, the Court granted
Socrates motion for leave to file a

petition for intervention.

ISSUES: 1. In G.R. No. 154512, whether the COMELEC committed grave abuse ofdiscretion in giving due course to the
Recall Resolution and scheduling the recall election for mayor of Puerto Princesa.
3. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in therecall election of Puerto Princesa
on September 24, 2002.In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse
ofdiscretion in fixing a campaign period of only 10 days has become moot. OurResolution of September 3, 2002
and COMELEC Resolution No. 5708 granted anadditional 15 days for the campaign period as prayed for by
petitioner.
4.
HELD:First Issue: Validity of the Recall Resolution.Petitioner Socrates argues that the COMELEC committed grave
abuse of discretion inupholding the Recall Resolution despite the absence of notice to 130 PRA membersand the
defective service of notice to other PRA members. The COMELEC, however,found that

On various dates, in the month of June 2002, the proponents for the Recall of

incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening ofthe PRA to the members thereof
pursuant to Section 70 of the Local GovernmentCode. Copies of the said notice are in Volumes I and II entitled Notices to
PRA.Likewise, Proof of Service for each of the said notices were attached to thePetition and marked as Annex G of
Volumes II and III of the Petition.

Notices were likewise posted in conspicuous places particularly at the BarangayHall. Notices of the convening of the
Puerto Princesa PRA were also sent to thefollowing: [a list of 25 names of provincial elective officials, print andbroadcast
media practitioners, PNP officials, COMELEC city, regional and nationalofficials, and DILG officials].This Court is
bound by the findings of fact of the COMELEC on matters within thecompetence and expertise of the COMELEC,
unless the findings are patentlyerroneous. hus, we rule that the COMELEC did not commit grave abuse of discretionin
upholding the validity of the Recall Resolution and in scheduling the recallelection on September 24, 2002
.Second Issue: Hagedorns qualification to run for mayor

In summary, we hold that Hagedorn is qualified to run in the September 24, 2002recall election for mayor of Puerto
Princesa because:1. Hagedorn is not running for immediate reelection following his threeconsecutive terms as mayor
which ended on June 30, 2001;2. Hagedorns continuity of service as mayor was involuntarily interrupted
from

June 30, 2001 to September 24, 2002 during which time he was a private citizen;3. Hagedorns recall term from
September 24, 2002 to June 30, 2004 cannot be made

to retroact to June 30, 2001 to make a fourth consecutive term because factuallythe recall term is not a fourth consecutive
term; and4. Term limits should be construed strictly to give the fullest possible effect tothe right of the electorate to choose
their leaders
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lxxiEN BANC

FRANCIS G. ONG,

G.R. No. 163295

Petitioner,
Present:

PANGANIBAN, C.J.
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus -

CARPIO
AUSTRIA-MARTINEZ,
CORONA,

CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.

JOSEPH STANLEY ALEGRE and

Promulgated:

COMMISSION ON ELECTIONS,
Respondents.

January 23, 2006

x---------------------x

ROMMEL G. ONG,
Petitioner,

versus -

G.R. No. 163354

JOSEPH STANLEY ALEGRE and

COMMISSION ON ELECTIONS,
Respondents.
x----------------------------------------x

DECISION

GARCIA, J.:

Before the Court are these two separate petitions under Rule 65 of the Rules
of Court to nullify and set aside certain issuances of the Commission on Elections
(COMELEC) en banc.

The first, docketed as G.R. No. 163295, is a petition for certiorari with
petitioner Francis G. Ong impugning the COMELEC en banc resolution[1] dated
May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley
Alegre's motion for reconsideration of the resolution dated March 31, 2004 [2] of
the COMELECs First Division.

The second, G.R. No. 163354, is for certiorari, prohibition and mandamus,
with application for injunctive relief, filed by petitioner Rommel Ong, brother of
Francis, seeking, among other things, to stop the COMELEC from enforcing and
implementing its aforesaid May 7, 2004 en banc resolution in SPA Case No. 04048 pending the outcome of the petition in G.R. No. 163295.

Per its en banc Resolution of June 1, 2004, the Court ordered the
consolidation of these petitions.

The recourse stemmed from the following essential and undisputed factual
backdrop:

Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong
(Francis) were candidates who filed certificates of candidacy for mayor of San
Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the
incumbent mayor.

On January 9, 2004, Alegre filed with the COMELEC Provincial Office a

Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy[3] of
Francis. Docketed as SPA Case No. 04-048, the petition to disqualify was
predicated on the three-consecutive term rule, Francis having, according to
Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and
have assumed office as mayor and discharged the duties thereof for three (3)
consecutive full terms corresponding to those elections.

To digress a bit, the May 1998 elections saw both Alegre and Francis
opposing each other for the office of mayor of San Vicente, Camarines Norte, with
the latter being subsequently proclaimed by COMELEC winner in that contest.
Alegre subsequently filed an election protest, docketed as Election Case No. 6850
before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC
declared Alegre as the duly elected mayor in that 1998 mayoralty contest,[4]
albeit the decision came out only on July 4, 2001, when Francis had fully served
the 1998-2001 mayoralty term and was in fact already starting to serve the
2001-2004 term as mayor-elect of the municipality of San Vicente.

Acting on Alegres petition to disqualify and to cancel Francis certificate of

candidacy for the May 10, 2004 elections, the First Division of the COMELEC
rendered on March 31, 2004 a resolution[5] dismissing the said petition of Alegre,
rationalizing as follows:

We see the circumstances in the case now before us analogous to those obtaining
in the sample situations addressed by the Highest Court in the Borja case. Herein, one of
the requisites for the application of the three term rule is not present. Francis Ong might
have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to
2004. The mayoral term however, from 1998 to 2001 cannot be considered his because
he was not duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has
voided his election for the 1998 term when it held, in its decision that Stanley Alegre
was the legally elected mayor in the 1998 mayoralty election in San Vicente,
Camarines Norte. This disposition had become final after the [COMELEC] dismissed
the appeal filed by Ong, the case having become moot and academic.
xxx

xxx

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On the basis of the words of the Highest Court pronounced in the Lonzanida case
and applicable in the case at bench, Ong could not be considered as having served as
mayor from 1998 to 2001 because he was not duly elected to the post; he merely

assumed office as a presumptive winner; which presumption was later overturned

when [the RTC] decided with finality that [he] lost in the May 1998 elections. (Words
in bracket and emphasis in the original).

Undaunted, Alegre filed a timely motion for reconsideration, contending, in

the main, that there was a misapplication of the three-term rule, as applied in the
cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra.

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a

resolution[6] reversing the March 31, 2004 resolution of the COMELECs First
Division and thereby (a) declaring Francis as disqualified to run for mayor of San
Vicente, Camarines Norte in the May 10, 2004; (b) ordering the deletion of
Francis name from the official list of candidates; and (c) directing the concerned
board of election inspectors not to count the votes cast in his favor.

The following day, May 8, Francis received a fax machine copy of the
aforecited May 7, 2004 resolution, sending him posthaste to seek the assistance
of his political party, the Nationalist Peoples Coalition, which immediately
nominated his older brother, Rommel Ong (Rommel), as substitute candidate. At
about 5:05 p.m. of the very same day - which is past the deadline for filing a
certificate of candidacy, Rommel filed his own certificate of candidacy for the
position of mayor, as substitute candidate for his brother Francis.

The following undisputed events then transpired:

1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a

Petition to Deny Due Course to or Cancel Certificate of Rommel Ong.

2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a

letter[7] to Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cario
and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to
the COMELECs inaction on Alegre's petition to cancel Rommels certificate of
candidacy, the name Rommel Ong be included in the official certified list of
candidates for mayor of San Vicente, Camarines Norte. The desired listing was
granted by the PES Carino.

3. On May 10, 2004, Alegre wrote[8] to then COMELEC Commissioner

Virgilio Garcillano, Commissioner-in-Charge for Regions IV and V, seeking
clarification on the legality of the action thus taken by the PES Cario.
Responding, Commissioner Garcillano issued a Memorandum under date May 10,
2004[9] addressed to PES Liza D. Zabala-Cario, ordering her to implement the
resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7,
2004.[10] Said Memorandum partly stated:

The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig

[Director IV, Law Department], which he quote your stand, "that substitution is not
proper if the certificate of the substituted candidacy is denied due course. In the
Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was
denied due course," and elaborated further that:
"x x x there is an existing policy of the Commission not to include
the name of a substitute candidate in the certified list of candidates unless
the substitution is approved by the Commission.
In view, thereof, it is recommended that 1) the substitute
certificate of candidacy of Rommel Ong Gan Ong, should be
denied due course; and 2) the election officer be directed to delete his
name from the list of candidates."
The above position of the Commission was in line with the pronouncement of
Supreme Court in Miranda vs. Abaya (311 SCRA 617) which states:
"There can no valid substitution where a candidate is excluded
not only by disqualification but also by denial and cancellation of his
certificate of candidacy."
In view thereof, you are hereby directed to faithfully implement the said
Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May 7,
2004. (Emphasis in the original; words in bracket added].

4. Owing to the aforementioned Garcillano Memorandum, it would seem

that the Chairman of the Municipal Board of Canvasser of San Vicente issued an
order enjoining all concerned not to canvass the votes cast for Rommel,
prompting the latter to file a protest with that Board.[11]

5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre

as the winning candidate for the mayoralty post in San Vicente, Camarines Norte.
[12]

On May 12, 2004, Francis filed before the Court a petition for certiorari,
presently docketed as G.R. No. 163295. His brother Rommels petition in G.R. No.
163354 followed barely a week after.

In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R.
No. 163354 were consolidated.[13]

Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing

private respondent Alegres Petition to Deny Due Course to or Cancel Certificate
of Candidacy of Rommel Ong, for being moot and academic.[14]

The issues for resolution of the Court are:

In G.R. No. 163295, whether the COMELEC acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing its en banc
resolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for
Mayor of San Vicente, Camarines Norte in the May 10, 2004 elections and
consequently ordering the deletion of his name from the official list of candidates
so that any vote cast in his favor shall be considered stray.

In G.R. No. 163354, whether the COMELEC committed grave abuse of

discretion when it denied due course to Rommels certificate of candidacy in the
same mayoralty election as substitute for his brother Francis.

A resolution of the issues thus formulated hinges on the question of whether

or not petitioner Franciss assumption of office as Mayor of San Vicente,
Camarines Norte for the mayoralty term 1998 to 2001 should be considered as

full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner

Francis, on the other hand, disagrees. He argues that, while he indeed assumed
office and discharged the duties as Mayor of San Vicente for three consecutive
terms, his proclamation as mayor-elect in the May 1998 election was contested
and eventually nullified per the decision of the RTC of Daet, Camarines Norte
dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs.
Comelec[15], that a proclamation subsequently declared void is no proclamation
at all and one assuming office on the strength of a protested proclamation does
so as a presumptive winner and subject to the final outcome of the election
protest.

The three-term limit rule for elective local officials is found in Section 8,
Article X of the 1987 Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his service
for the full term for which he was elected.

Section 43 (b) of the Local Government Code restates the same rule as
follows:
Sec. 43. Term of Office.
xxx

xxx

xxx

(b) No local elective official shall serve for more than three consecutive years in
the same position. Voluntary renunciation of the office for any length of time shall not
be considered an interruption in the continuity of service for the full term for which the
elective official concerned was elected.

For the three-term limit for elective local government officials to apply, two
conditions or requisites must concur, to wit: (1) that the official concerned has
been elected for three (3) consecutive terms in the same local government post,

and (2) that he has fully served three (3) consecutive terms.[16]

With the view we take of the case, the disqualifying requisites are present
herein, thus effectively barring petitioner Francis from running for mayor of San
Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute
about petitioner Francis Ong having been duly elected mayor of that municipality
in the May 1995 and again in the May 2001 elections and serving the July 1, 1995June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein
controversy revolves around the 1998-2001 mayoral term, albeit there can also
be no quibbling that Francis ran for mayor of the same municipality in the May
1998 elections and actually served the 1998-2001 mayoral term by virtue of a
proclamation initially declaring him mayor-elect of the municipality of San
Vicente. The question that begs to be addressed, therefore, is whether or not
Franciss assumption of office as Mayor of San Vicente, Camarines Norte from
July 1, 1998 to June 30, 2001, may be considered as one full term service in the
context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, service for
the full term, and should be counted as a full term served in contemplation of the
three-term limit prescribed by the constitutional and statutory provisions, supra,
barring local elective officials from being elected and serving for more than three
consecutive term for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,[17] that it
was Francis opponent (Alegre) who won in the 1998 mayoralty race and, therefore, was the legally
elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and
legal use and value, having been promulgated after the term of the contested office has expired.
Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as
his proclamation was under protest did not make him less than a duly elected mayor. His proclamation
by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty
election coupled by his assumption of office and his continuous exercise of the functions thereof from
start to finish of the term, should legally be taken as service for a full term in contemplation of the
three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary
view would mean that Alegre would under the three-term rule - be considered as having served a
term by virtue of a veritably meaningless electoral protest ruling, when another actually served such
term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in, Lonzanida vs.
Comelec,[18] citing Borja vs. Comelec[19]. In Lonzanida, petitioner Lonzanida was elected and
served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995
elections. He then ran again for the same position in the May 1995 elections, won and discharged his
duties as Mayor. However, his opponent contested his proclamation and filed an election protest
before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure
of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner
Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his
duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of
the same town. A petition to disqualify, under the three-term rule, was filed and was eventually
granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the
post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason
of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida cannot be
deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact
vacated] his post before the expiration of the term.

The difference between the case at bench and Lonzanida is at once apparent. For one, in
Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of failure
of election, and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not
fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of
legal processes. In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more
importantly, here, there was actually no interruption or break in the continuity of Francis service
respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in
question; he never ceased discharging his duties and responsibilities as mayor of San Vicente,
Camarines Norte for the entire period covering the 1998-2001 term.

The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc
when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty post of San
Vicente and denying due course to his certificate of candidacy by force of the constitutional and
statutory provisions regarding the three-term limit rule for any local elective official cannot be
sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself
for concurrence:

As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in

the Borja and Lonzanida cases in the instant petition will be erroneous because the
factual milieu in those cases is different from the one obtaining here. Explicitly, the
three-term limit was not made applicable in the cases of Borja and Lonzanida because
there was an interruption in the continuity of service of the three consecutive terms.
Here, Respondent Ong would have served continuously for three consecutive terms,
from 1995 to 2004. His full term from 1998 to 2001 could not be simply discounted on
the basis that he was not duly elected thereto on account of void proclamation because it
would have iniquitous effects producing outright injustice and inequality as it rewards a
legally disqualified and repudiated loser with a crown of victory. (Word in bracket
added; emphasis in the original)

Given the foregoing consideration, the question of whether or

not then Commissioner Virgilio Garcillano overstepped his discretion
when he issued the May 10, 2004 Memorandum, ordering the
implementation of aforesaid May 7, 2004 COMELEC en banc resolution
even before its finality[20] is now of little moment and need not detain

us any longer.

Just as unmeritorious as Francis petition in G.R. No. 163295 is

Rommels petition in G.R. No. 163354 in which he (Rommel)
challenges the COMELEC's act of not including his name as a
substitute candidate in the official list of candidates for the May 10,
2004 elections. As it were, existing COMELEC policy[21] provides for
the non-inclusion of the name of substitute candidates in the certified
list of candidates pending approval of the substitution.

Not to be overlooked is the Courts holding in Miranda vs. Abaya,

[22]

that a candidate whose certificate of candidacy has been

cancelled or not given due course cannot be substituted by another

belonging to the same political party as that of the former, thus:

While there is no dispute as to whether or not a nominee of a registered or accredited political party
may substitute for a candidate of the same party who had been disqualified for any cause, this does not
include those cases where the certificate of candidacy of the person to be substituted had been denied
due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may
be validly substituted, there is no mention of the case where a candidate is excluded not only by
disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing
rule, there can be no valid substitution for the latter case, much in the same way that a nuisance
candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted.
If the intent of the lawmakers were otherwise, they could have so easily and conveniently included
those persons whose certificates of candidacy have been denied due course and/or cancelled under the
provisions of Section 78 of the Code.

xxx

xxx

xxx

A person without a valid certificate of candidacy cannot be considered a candidate in much the same
way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the
imagination, be a candidate at all.

xxx

xxx

xxx

After having considered the importance of a certificate of candidacy, it can be readily understood why
in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a
cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering
that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or
accredited party may be substituted, there demonstrably cannot be any possible substitution of a person
whose certificate of candidacy has been cancelled and denied due course.

In any event, with the hard reality that the May 10, 2004
elections were already pass, Rommel Ongs petition in G.R. No.
163354 is already moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the

assailed en banc Resolution dated May 7, 2004 of the COMELEC, in
SPA No. 04-048 AFFIRMED.

Costs against petitioners.

SO ORDERED.

lxxii
lxxiiiONG VS ALEGRE
FACTS: Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due
Courseand Cancel the Certificate of Candidacy of Francis Ong. The petition to disqualify was
predicated onthe three-consecutive term rule. Francis having, according to Alegre, ran in the May 1995,
1998, andMay 2001 mayoralty elections and have assumed office as Mayor and discharged the duties
thereof for three consecutive full terms corresponding to those elections.The First Division of
COMELEC rendered on March 31, 2004 a resolution dismissing the said petitionof Alegre,
rationalizing that Francis might have indeed fully served the mayoral terms of 1995 to 1998;1998 to
2001 and 2001 to 2004 but the mayoral term however, from 1998 to 2001 cannot be consideredhis
because he was not duly elected thereto. The RTC of Daet, Camarines Norte Branch 41 has voided
1
It is a general rule of law that an incumbent of an office will hold over after the conclusion or
expiration of his term until theappointment of his successor
2
The laws of Australia at that time required any person over the age of 16 who is granted citizenship to
take an oath of allegiance
his election for the 1998 term when it held, in its decision that Alegre was the "legally elected Mayor
inthe 1998 mayoralty election in San Vicente, Camarines Norte."ISSUE: Whether or not Ongs
assumption of office as Mayor of San Vicente, Camarines Norte for themayoralty term 1998 to 2001 be
considered as full service for the purpose of the three-term limit rule.HELD: Affirmative. Ong is
disqualified as even if the COMELEC had declared Alegre to be the legallyelected mayor in the 1998
elections, it was without effect as the declaration only took place AFTER theexpiration of the contested
office
lxxiv
lxxv
lxxvi
lxxvii
lxxviii
lxxix
lxxx
Sevilla vs CA
G..R. No. L-41182-3
April 16, 1988
Employer-Employee Relationship
Facts:

The petitioners invoke the provisions on human relations of the Civil Code in this appeal by certiorari.
Mrs. Segundina Noguera, party of the first part; the Tourist World Service, Inc., represented by Mr.
Eliseo Canilao as party of the second part, and hereinafter referred to as appellants, the Tourist World
Service, Inc. leased the premises belonging to the party of the first part at Mabini St., Manila for the
former-s use as a branch office. In the said contract the party of the third part held herself solidarily
liable with the party of the part for the prompt payment of the monthly rental agreed on. When the
branch office was opened, the same was run by the herein appellant Una 0. Sevilla payable to Tourist
World Service Inc. by any airline for any fare brought in on the efforts of Mrs. Lina Sevilla, 4% was to
go to Lina Sevilla and 3% was to be withheld by the Tourist World Service, Inc.
On November 24, 1961 the Tourist World Service, Inc. appears to have been informed that Lina Sevilla
was connected with a rival firm, the Philippine Travel Bureau, and, since the branch office was anyhow
losing, the Tourist World Service considered closing down its office.
On June 17,1963, appellant Lina Sevilla refiled her case against the herein appellees and after the
issues were joined, the reinstated counterclaim of Segundina Noguera and the new complaint of
appellant Lina Sevilla were jointly heard following which the court ordered both cases dismiss for lack
of merit.
In her appeal, Lina Sevilla claims that a joint bussiness venture was entered into by and between her
and appellee TWS with offices at the Ermita branch office and that she was not an employee of the
TWS to the end that her relationship with TWS was one of a joint business venture appellant made
declarations.
Issue:
Whether or not the padlocking of the premises by the Tourist World Service, Inc. without the
knowledge and consent of the appellant Lina Sevilla entitled the latter to the relief of damages prayed
for and whether or not the evidence for the said appellant supports the contention that the appellee
Tourist World Service, Inc. unilaterally and without the consent of the appellant disconnected the
telephone lines of the Ermita branch office of the appellee Tourist World Service, Inc.?
Held:
The trial court held for the private respondent on the premise that the private respondent, Tourist World
Service, Inc., being the true lessee, it was within its prerogative to terminate the lease and padlock the
premises. It likewise found the petitioner, Lina Sevilla, to be a mere employee of said Tourist World
Service, Inc. and as such, she was bound by the acts of her employer. The respondent Court of Appeal
rendered an affirmance.
In this jurisdiction, there has been no uniform test to determine the evidence of an employer-employee
relation. In general, we have relied on the so-called right of control test, "where the person for whom
the services are performed reserves a right to control not only the end to be achieved but also the means
to be used in reaching such end." Subsequently, however, we have considered, in addition to the
standard of right-of control, the existing economic conditions prevailing between the parties, like the
inclusion of the employee in the payrolls, in determining the existence of an employer-employee
relationship.

the Decision promulgated on January 23, 1975 as well as the Resolution issued on July 31, 1975, by the
respondent Court of Appeals is hereby REVERSED and SET ASIDE. The private respondent, Tourist
World Service, Inc., and Eliseo Canilao, are ORDERED jointly and severally to indemnify the
petitioner, Lina Sevilla, the sum of 25,00.00 as and for moral damages, the sum of P10,000.00, as and
for exemplary damages, and the sum of P5,000.00, as and for nominal and/or temperate damages.

EN BANC
G.R. No. L-9075

January 29, 1960

S. V. S. PICTURES, INC., and RAMOS S. SEVILLA Petitioners, vs. THE COURT OF

APPEALS, RAMCAR, INC., and JOSE NEPOMUCENO, Respondents.
GUTIERREZ DAVID, J.:
This is an appeal by certiorari from a judgment of the Court of Appeals.

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It appears that on April 22, 1947, a contract was entered into between Jose Nepomuceno and S. V. S.
Pictures, Inc., whereby for a consideration of P23,000.00, the former undertook to furnish to the latter
"a complete service of equipment and personnel" for the filming of a picture entitled "Dalawang
Anino" and to release to the said corporation six prints of said picture for exhibition in the different
theaters. The sitpulated consideration of P23,000.00 was to be paid in installments, P5,000.00 on the
date of the contract, P1,000.00 weekly for ten weeks and the balance from the first receipts from the
showing of the picture. In fulfillment of the contract, the picture mentioned was filmed. Three prints
thereof were delivered to S. V. S. Pictures. The later, in turn, made partial payments to Nepomuceno as
stipulated in the contract. On November 10, 1947, after the picture had been exhibited in Manila and in
the provinces, an accounting was had between the parties. As it was found that there was still due
Nepommuceno the sum of P6,00.00, the S. V. S. Pictures, represented by Ramon S. Sevilla and its
president and general manager Arsenio J. Santos, executed six promissory notes for P1,000.00 each
payable without interest to Nepomuceno. The first of the notes was to mature on December 10, 1947
and the others successively on the 10th of the following months.
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The aforesaid notes having been subsequently assigned to RAMCAR, Inc., the latter, upon the notes
being dishonored, brought the present action on July 19, 1948 in the Court of First Instance of Manila
against S. V. S. Pictures and Ramon S. Sevilla for the total amount of the notes with legal interest from
the filing of the complaint.
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The defendants, in their separate answers, set up the defense that the notes were void for want of
consideration; that their assignment to plaintiff RAMCAR was not valid because it was without
consideration and without notice to the makers; and that Nepomuceno had no right to make such
assignment. Defendants Sevilla further disclaimed liability of the contract alleging that the same was
signed by him as Treasurer and Director of S. V. S. Pictures not in his personal capacity. Together with
the answers, defendants each filed a third party complaint against Nepomuceno alleging that the latter
had breached his contract by not releasing to the S. V. S. Pictures the remaining three other prints of the
film and praying that for such breach Nepomuceno be condemned to pay damages in the sum of
P10,000.00. In their amended third-party complaint defendants further alleged that the negative of the
firm "Dalawang Anino" was delivered to Nepomuceno which the latter failed and refused to return, and

accordingly prayed that Nepomuceno be ordered to return said negative.

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After hearing, the trial court rendered judgment condemning the defendants to pay the plaintiffs
RAMCAR, jointly and severally, the sum of P6,000.00 with legal interest from the filing of the action
and dismissing the third party complaint against Jose Nepomuceno as well as the counterclaim filed by
defendant S. V. S. Pictures.
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The above decision having been affirmed by the Court of Appeals, the defendants brought the case to
this Court thorough the appeal by certiorari, contending that the Court of Appeals erred (1) "in not
permitting petitioners to introduce evidence in support of their right to recover the film negative as well
as to ask for damages for the delay of the return thereof;" and (2) "in not making complete finding of
fact and law in its decision.".
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After going over the record, we find that, contrary to petitioners' first assignment of error - which
appears to be directed against the trial court - they were in fact allowed to introduce evidence in support
of their alleged right to recover the film negative. Their witnesses testified on the matter and portions of
such testimony are even quoted in their own brief. What is more, petitioners themselves admit that
"they introduced evidence to show ownership of this film negative and to show proof of the delivery
thereof to the respondents." What petitioners, in reality, are questioning, as gleaned from their
arguments, is the denial by the trial court of their motion for the admission of their second amended
answer and to present additional evidence on the execution of the promissory notes and on damages
they suffered, as well as the denial of their other motion for the admission of additional documentary
evidence for attachment to the record. The motions, however, sought the introduction of evidence
which would establish damages allegedly suffered by the petitioners as a result of Nepomuceno's
alleged breach of contract and had nothing to do with their claim for the return of the film negative.
Thus, petitioners in their petition for review state that purpose in filing those motions was to prove
some allegations in their answers. The pleadings, on the other hand, show that their claim to the film
negative is alleged only in their third-party complaints. At any rate, the motions were filed after the
case was submitted for decision so that their grant or denial was purely discretionary upon the court. In
the circumstances of the case, we hold that the Court of Appeals correctly sustained the action of the
trial court denying the said motions.
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It would seem that under the first assignments of error petitioners are also claiming for damages based
on the alleged delay of the return of the film negative. In this connections, it is to be noted that in the
trial court, as well as in the Court of Appeals, petitioners as third party plaintiffs asked for damages
only on the ground that Nepomuceno breached their contract by failing to release three additional
prints. Such being the case, petitioners cannot now for the first time on appeal claim for damages based
on the alleged delay of the return of the film negative.
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Under that second assignment of error, petitioners allege that the Court of Appeals did not make a
complete finding of fact and law. They claim that as court did not resolve the question of the return of
the film, negative which was property raised before it, its decision is void. We find, however, that the
appealed decision holding the petitioners liable on the promissory notes is based on sufficient findings
of fact. Thus, the Court of Appeals found that ... from the return of the contract between the parties for the filming or the pictures "Dalawang Anino",
dated April 22, 1947, can be clearly gleamed that what Nepomuceno undertook to provide was the
equipment and facilities of the studio the technical personnel etc., but not the raw materials (films) to

be used for the making of the picture, which where to be furnished and supplied by defendant
corporation, and the uncontradicted testimony of Nepomuceno plainly points out the reason why three
prints only of the picture were actually released and delivered to defendants corporation, such reason
being the failure of the latter to provide and supply the raw materials needed for the making of the three
additional prints. Anyway, the promissory notes in question were executed on November, 10, 1947,
after a formal accounting and liquidation of the transaction was made, which showed an unpaid balance
of P6,000.00, and the execution of said promissory notes for the satisfaction of said P6,00.00 not only
shows the consideration for the drawing of the notes but also a recognition of the indebtedness on the
part of the makers thereof, which was over and above or despite the alleged violations of contract by
Nepomuceno.
What is more, petitioners in this appeal no longer question their liability on the promissory notes. The
pretense, therefore, that the decision sought to be reviewed does not comply with the rule that a
judgment must state the facts on which it is based cannot be sustained.
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It is true that the Court of Appeals in its decision did not expressly rule on petitioners claim in their
third party complaints for the return of the film negative. This failure, however, in our opinion, is not a
reversible error, particularly since petitioners had already called the attention of the appellate court in
that regard in their motion for reconsideration. If that court denied their motion, it was apparently
because it was deemed it unjustified or without merit..
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It cannot be ascertained, however, from the decision appealed from just why petitioners' claim for the
return of the film negative was denied. Neither does said decision - or that of the trial court - state facts
essential to the determination of that claim. On the other hand, it is of record that the question regarding
the return of the negative was one of the issues squarely raised in the proceedings below and, for that
matter, the parties had already presented their evidence. Petitioners alleged that the negative, worth at
least P25,000.00, belonged to S. V. S. Picture and that it had been delivered to respondent
Nepomuceno. The latter, on the other hand, averred that petitioners did not present sufficient evidence
to establish his liability to return the negative film as it had not been shown that he was in possession
thereof. Counsel for the respondent RAMCAR, Inc., after hearing of the case before this Court, has
also made allegations, factual in nature, regarding the negative film, which tend to defeat petitioners'
claim for its return. Needless, to say, resolution of these conflicting claims necessarily involve an
examination of the probative value of the evidence presented (or still be presented, if necessary) by the
parties. The transcript containing the testimony of the witnesses, however, is not before us, the
questions of law may be raised. In the circumstances, we think the interest of justice would be better
served if the case were remanded to the Court of Appeals for further proceedings, insofar as petitioners'
claim for the return of the film negative is concerned.
chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the decision appealed from petitioners liable on the promissory notes is affirmed, but the
case is hereby ordered remanded to the Court of Appeals for further proceedings insofar as the
controversy on the film negative is concerned. Without pronouncement as to costs.
chanroble

EN BANC

G.R. No. 116183 October 6, 1995

SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports
and Chairman of the Board of Trustees of the Philippine State College of Aeronautics
(PSCA); JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge of PSCA; and
BOARD OF TRUSTEES of PSCA, petitioners,
vs.
HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial
Court of Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V.
CERILLO, ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA,
JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO
SACUEZA, JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO, BENIGNO
T. AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, and NELSON
SACUEZA, respondents.

HERMOSISIMA, JR., J.:

Intransigence of private respondents in maintaining a patently indefensible position sparked
this long drawn out controversy. Knowing fully well that, as temporary employees whose
terms of office, whether by contract or by the tenor of their appointments, had expired one
year after their respective temporary appointments, that is, on December 31, 1992, they insist
on a perceived, albeit mistaken, right to reinstatement.
Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as
Secretary of Education, Culture and Sports (DECS) and as Chairman of the Board of
Trustees of the Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in
his capacity as Officer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1,
under Rule 65 of the Revised Rules of Court, with the end in view of nullifying the Decision 2
and Order 3 of respondent Judge Salvador P. de Guzman, Jr., Presiding Judge of Branch 113,
Regional Trial Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively.
Questioned in effect by the petitioners is only the portion of the judgment ordering the
reinstatement of private respondent Rosario V. Cerillo to the position of "Coordinator for
Extension Services".
Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was
perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the
DECS Secretary. The case for reinstatement which was filed before respondent Judge
Salvador P. de Guzman, Jr. of the Pasay City Regional Trial Court was instituted during the
incumbency of the succeeding DECS Secretary, the Hon. Armand Fabella. The judgment of
the lower court, as a matter of fact, involved the Hon. Armand Fabella as defendant. In view
of the resignation of Secretary Fabella, the duty and obligation to question the decision
aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the incumbent Secretary, the
Hon. Ricardo T. Gloria.
Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria;
PSCA Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of
Trustees created under Republic Act

No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public
respondent, and the named private respondents who were the petitioners in the court below.
The facts of the case are not in dispute. The question at issue is one of law: Is private
respondent Rosario V. Cerillo entitled to reinstatement to the position of "Coordinator for
Extension Services"?
Private respondents were employees of the Philippine Air Force College of Aeronautics
(PAFCA) which was created by virtue of Presidential Decree No. 1078 on January 26, 1977.
Under the said decree, the Board of Trustees is vested with authority, among others, to
appoint, as it did appoint, officials and employees of the college, except the members of the
Board of Trustees themselves and the President of the college. In line with this authority, the
PAFCA Board of Trustees issued Resolution No. 91-026 on April 1, 1991, which declared that
"All faculty/administrative employees are also subject to the required civil service eligibilities",
in accordance with pertinent civil service law, rules and regulations. Thus, herein private
respondents were issued only temporary appointments because at the time of their
appointment, they lacked appropriate civil service eligibilities or otherwise failed to meet the
necessary qualification standards for their respective positions.
Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary
appointment to the position of Board Secretary II of PAFCA (now PSCA), that is, from
January 1, 1992 to December 31, 1992. This appointment went along the line enunciated by
the Civil Service Commission in a letter, dated March 25, 1992. 4 The letter emphasized that
temporary appointments were good and renewable only up to 1992.
On March 24, 1992, private respondent Rosario V. Cerillo was
relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017
by reason of loss of confidence. Subsequently, however, she was designated as "Coordinator
for Extension Services".
On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a
state college to be known as the Philippine State College of Aeronautics (PSCA). The Board
of Trustees likewise was the governing body of the PSCA. The power to make appointments
was retained by the Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge
by virtue of a designation made anew by then DECS Secretary Isidro Cario on June 8, 1992.
Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be
deemed separated from the service upon the expiration of their temporary appointments. Had
private respondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on
March 24, 1992, her temporary appointment as such was supposed to have lasted until
December 31, 1992.
On June 25, 1993, barely five months after the lapse of the terms of their temporary
appointments as determined by the PSCA administration, the herein private respondents filed
before the Regional Trial Court of Pasay City, presided over by respondent Judge Salvador P.
de Guzman, Jr., a "Petition for Mandamus and Reinstatement, with Back Wages and
Damages", docketed as Civil Case No. 10049. The complaint in effect prayed that then DECS
Secretary Armand Fabella complete the filling up of positions for Board of Trustees and order

the Board of Trustees to reinstate the respondents in the case at bench to their respective
positions.
In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus
will not lie to compel reinstatement because the reappointment prayed for is discretionary on
the part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of
mandamus should be unavailing to private respondents because of their failure to exhaust
administrative remedies.
We find the petition to be impressed with merit.
I
The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the
reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services"
is patently improper because it finds no support as to facts and the law. Respondent Cerillo,
although temporarily extended an appointment as Board Secretary II, was dismissed
therefrom because of loss of confidence. This dismissal was neither contested nor appealed
from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II
could not have been the subject of the petition for mandamus and reinstatement filed before
respondent Judge. The fact is that private respondent's assignment as "Coordinator for
Extension Services" was a mere designation. Not being a permanent appointment, the
designation to the position cannot be the subject of a case for reinstatement.
Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for
Extension Services", her reinstatement thereto would not be possible because the position is
not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment
for this inexistent position. This could very well be the reason why she was merely designated
as Coordinator. As a mere designee, she could not have acquired any right to the position
even if the position existed.
At any rate, a mere "designation" does not confer upon the designee security of tenure in the
position or office which he occupies in an acting capacity only 6.
II
Should the object of private respondent Cerillo in prosecuting the case in the court below be
her reinstatement to the position of Board Secretary II, the reinstatement prayed for appears
to be impermissible. In the first place,
Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not
contest this dismissal possibly because the position of Board Secretary II is primarily
confidential and the Board of Trustees, when finding her, the incumbent to the position, to be
wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the
dismissal without any ripple and when designated as Coordinator for Extension Services, she
indicated acceptance by performing the acts called for by the designation.
The quarrel between the private respondents, on the one hand, and the PSCA administration,
on the other, came about in this manner:

The Civil Service Commission, mandating a policy, wrote petitioner

Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of
officers/employees of the PSCA were to last only up to December 31, 1992. For a better
perspective, We quote a pertinent portion of the letter:
xxx xxx xxx
Please note that temporary appointments last only for a maximum of one (1) year and all
personnel appointed in a temporary capacity can be replaced any time by a civil service eligible.
Since you have just been recently covered by the Civil Service Law and rules, this Field Office
approved all your temporary appointments subject to yearly renewal up to 1992 only.
Subsequent appointments should strictly conform with civil service policies. You may, therefore,
advise all your temporary personnel to take civil service examinations in order to be eligible for
appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private
respondents pointed out to the PSCA administration that, in Resolution No. 91-026, dated
April 1, 1991, the Board of Trustees declared that all faculty/administrative employees of the
college, while required to acquire civil service eligibilities under pertinent civil service law,
rules and regulations, must exert effort to acquire civil service eligibilities within a period of
three years from their temporary appointments. This, the private respondents believe should
be taken to mean that, should they acquire civil service eligibilities within that period of three
years, they cannot be terminated from the service.
The fact that private respondent Cerillo passed the requisite Civil Service Examination after
the termination of her temporary appointment is no reason to compel petitioners to reappoint
her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be
considered by the appointing authority are: performance, degree of education, work
experience, training, seniority, and, more importantly, as in this case, whether or not the
applicant enjoys the confidence and trust of the appointing power. As We said earlier, the
position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not
only confidence in the aptitude of the appointee for the duties of the office but primarily close
intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential
matters of state." 8 In other words, the choice of an appointee from among those who
possessed the required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the service which can best
be made by the Head of the office concerned. 9
It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the
Civil Service Commission policies on the issuance of temporary appointments. When the Civil
Service Commission directed that temporary appointments were to be effective only up to
1992, it did so in pursuance of the general purpose of the civil service law, as stated under
Section 2 of Republic Act No. 2260, as amended, which is "to ensure and promote the
constitutional mandate regarding appointments only according to merit and fitness and to
provide within the public service a progressive system of personal administration to ensure
the maintenance of an honest and
efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is
vested with the function, among others, to promulgate policies, standards and guidelines for
the civil service and adopt plans and programs to promote economical, efficient and effective

personnel administration in the government.

11

We hold that reappointment to the position of Board Secretary II is an act which is

discretionary on the part of the appointing power. Consequently, it cannot be the subject of an
application for a writ of mandamus.
Reinstatement is technically issuance of a new appointment which is essentially discretionary,
to be performed by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications required by law. 12 Such
exercise of the discretionary power of appointment cannot be controlled, not even by the
Court as long as it is exercised properly by the appointing authority. 13
It is Our holding that the questioned order of reinstatement amounts to an undue interference
by the Court in the exercise of the discretionary power of appointment vested in the PSCA
Board of Trustees.
Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a
reappointment, adhered to this pontification by stating that:
The appointment of the petitioners to their former positions is not a matter of right; rather, it is a
matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel
anyone to exercise his discretion absent any showing of grave abuse of discretion.

III
The termination of the services of private respondents was proper and legal, it being the
consequence of the Board of Trustees' power to appoint. The view of respondent Judge,
however, is that there was no termination ordered. Either the employees' contracts lapsed or
their temporary appointments were abrogated by circulars from the Civil Service Commission.
This, as a necessary consequence of the transition from the Philippine Air Force College of
Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA).
We agree with respondent Judge's disquisition on this point:
To the question was the termination of the services of the petitioners legal or not?, the only
answer is there was not termination to speak of. Termination presupposes an overt act
committed by a superior officer. There was none whatsoever in the case at bar. At most, Col.
Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts,
Petitioners appointment or employment simply expired either by its very own terms, or because
it may not exceed one year, but most importantly because the PAFCA was dissolved and
replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been
misunderstood by them as an act of dismissal which as they correctly state, belongs to the
Board of Trustees alone.

IV
Considering Our finding that there is merit to the petition, the issue as to whether attorney's
fees and costs of litigation should be awarded to private respondent Rosario V. Cerillo as
adjudged in the questioned decision of respondent Judge has become moot and academic.
At any rate, the Court holds that the said award could not have been imposed because, while

it was directly ordered in the dispositive portion of the decision, it was neither discussed nor
justified in the body of the questioned decision. Clear on this point is Our decision in
Policarpio vs. Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to
state that the reason for the award of attorney's fees must be stated in the text of the
decision, otherwise, if it is stated only in the dispositive portion of the decision, the same shall
be disallowed." This ruling We reiterated in the case of Koa vs. Court of Appeals, 219 SCRA
541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340,
where it was stated that "The award of attorney's fees must be disallowed for want of factual
and legal premise in the text of the decision rendered by the court of origin and the appellate
court as well."
WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994,
insofar as it ordered the reinstatement of
Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and
the Order, dated June 29, 1994, of respondent
Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside.
The temporary restraining order/preliminary injunction heretofore issued is hereby made
permanent.
SO ORDERED.

Gloria v. De GuzmanFacts:Private respondents were employees of the Philippine Air Force

College of Aeronautics(PAFCA) which was created by virtue of Presidential Decree No. 1078 on
January 26, 1977. Underthe said decree, the Board of Trustees is vested with authority,
among others, to appoint, as itdid appoint, officials and employees of the college, except the
members of the Board of Trusteest h e m s e l v e s a n d t h e P r e s i d e n t o f t h e c o l l e g e . I n l i n e
with this authority, the PAFCA Board of T r u s t e e s i s s u e d R e s o l u t i o n
No. 91-026 on April 1, 1991, which declared that
" A l l faculty/administrative employees are also subject to the required civil service
eligibilities", ina c c o r d a n c e w i t h p e r t i n e n t c i v i l s e r v i c e l a w , r u l e s a n d
regulations. Thus, herein privater e s p o n d e n t s w e r e i s s u e d o n l y
t e m p o r a r y a p p o i n t m e n t s b e c a u s e a t t h e t i m e o f t h e i r appointment,
they lacked appropriate civil service eligibilities or otherwise failed to meet theneces sary
qualification standards for their respective positions. Rosario V. Cerillo, specifically, was
issued a one-year temporary appointment to the position of Board Secretary II of
PAFCA(now PSCA), that is, from January 1, 1992 to December 31, 1992. This
appointment went alongthe line enunciated by the Civil Service Commission in a letter, dated
March 25, 1992.
The letteremphasized that temporary appointments were good and renewable only up to 1992. On
March24, 1992, Rosario V. Cerillo was relie ved as Board Secretary of the PAFCA in
accordance withBoard Resolution No. 92-017 by reason of loss of confidence.
Subsequently, however, she was designated as "Coordinator for Extension Services". On June 3,
1992, Republic Act No. 7605 wasenacted into law. It converted PAFCA into a state college to
be known as the Philippine StateCollege of Aeronautics (PSCA). The Board of Trustees

likewise was the governing body of the P S C A . T h e p o w e r t o m a k e a p p o i n t m e n t s w a s

r e t a i n e d b y t h e B o a r d . P e t i t i o n e r C o l . J u l i a n J . Loleng, Jr. remained as Officer-inCharge by virtue of a designation made anew by then DECS Secretary Isidro Cario on June 8,
1992. Only on December 7, 1992 did Col. Loleng inform privaterespondents that they shall be
deemed separated from the service upon the expiration of their t e m p o r a r y
appointments. Had Rosario V. Cerillo not been summarily dismissed as
B o a r d Secretary on March 24, 1992, her temporary appointment as such was supposed to have
lasteduntil December 31, 1992. On June 25, 1993, barely five months after the lapse of the
terms of t h e i r t e m p o r a r y a p p o i n t m e n t s a s d e t e r m i n e d b y t h e P S C A
a d m i n i s t r a t i o n , t h e p r i v a t e respondents filed before the RTC of Pasay City, a
"Petition for
Mandamus
and Reinstatement,w i t h B a c k W a g e s a n d D a m a g e s " , T h e c o m p l a i n t i n e f f e c t p r a y e d
t h a t t h e n D E C S S e c r e t a r y Armand Fabella complete the filling up of positions for Board of
Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their
respective positions. In theirAnswer,
the petitioners opposed the petition upon the ground that
mandamus
w i l l n o t l i e t o compel reinstatement because the reappointment prayed for is
discretionary on the part of theappointing power. Besides, it was the claim of Secretary Fabella
that a writ of
mandamus
shouldbe unavailing to private respondents because of their failure to exhaust administrative
remedies.After trial, the court ruled in favor of the relieved employees.Issue: Is Rosario V. Cerillo
entitled to reinstatement to the position of "Coordinator for ExtensionServices"?
Held:N o . C e r i l l o , a l t h o u g h t e m p o r a r i l y e x t e n d e d a n a p p o i n t m e n t a s B o a r d
S e c r e t a r y I I , w a s dismissed therefrom because of loss of confidence. This dismissal was
neither contested nora p p e a l e d f r o m b y M s . C e r i l l o . T h e r e i s n o q u e s t i o n ,
t h e r e f o r e , t h a t h e r d i s m i s s a l a s B o a r d Secretary II could not have been the subject of
the petition for mandamus and reinstatementfile d before respondent Judge. The fact is
that private respondent's assignment as "Coordinato rf o r E x t e n s i o n S e r v i c e s " w a s a
m e r e d e s i g n a t i o n . N o t b e i n g a p e r m a n e n t a p p o i n t m e n t , t h e designation to the position
cannot be the subject of a case for reinstatement. Even granting thatMs. Cerillo could be validly
reinstated as "Coordinator for Extension Services", her reinstatementthereto would not be possible
because the position is not provided for in the PSCA plantilla. ThePSCA could not have made any
valid appointment for this inexistent position. This could very wellbe the reason why she was merely
designated as Coordinator. As a mere designee, she could noth a v e a c q u i r e d a n y r i g h t t o t h e
position even if the position existed. At any rate, a mere
"designation" does not confer upon the designee security of tenure in the position or office whichhe
occupies in an acting capacit y only.The fact that Cerillo passed the requisite Civil
ServiceE x a m i n a t i o n a f t e r t h e t e r m i n a t i o n o f h e r t e m p o r a r y a p p o i n t m e n t
i s n o r e a s o n t o c o m p e l petitioners to reappoint her. Acquisition of civil
s e r v i c e e l i g i b i l i t y i s n o t t h e s o l e f a c t o r f o r reappointment. Still to be considered by
the appointing authority are: performance, degree of education, work experience,
training, seniority, and, more importantly, as in this case, whetheror not the applica nt
enjoys the confidence and trust of the appointing power. The position of B o a r d

Secretary II, by its nature, is primarily confidential, requiring as it

d o e s " n o t o n l y confidence in the aptitude of the appointee for the duties of
t h e o f f i c e b u t p r i m a r i l y c l o s e intimacy which ensures freedom from misgivings of
betrayals of personal trust or confidentialmatters of state." In other words, the choice of
an appointee from among those who possessed the required qualifications is a political and
administrative decision calling for considerations of wisdom, convenience, utility and the
interests of the service which can best be made by the Head of the office concerned.
Reappointment to the position of Board Secretary II is an act whichis discretionary on the part of the
appointing power. Consequently, it cannot be the subject of anapplication for a writ of mandamus.
Reinstatement is technically issuance of a new appointmentwhich is essentially discretionary, to
be performed by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications required by law. Such
exercise of the discretionary power of appointment cannot be controlled,not even by the Court as long
as it is exercised properly by the appointing authority.

EN BANC

JOSE M. CARINGAL,
Petitioner,

- versus -

PHILIPPINE CHARITY SWEEPSTAKES OFFICE (PCSO),

Respondent.

G.R. No. 161942

Present:

Promulgated:

October 13, 2005

x--------------------------------------------------------------------------------------------------------

-----x D E C I S I O N SANDOVAL-GUTIERREZ,

J.:

permanent

appointment in the career service is issued to a person who has met

the requirements of the position to which the appointment is made in
accordance with the provisions of law, the rules and the standards
promulgated pursuant thereto.[1]
civil service eligible.[2]

It implies that the appointee is a

Thus, while the appointing authority has the

discretion to choose whom to appoint, the choice is subject to the

caveat that the appointee possesses the required qualifications.[3]
For our resolution is the instant petition for review on certiorari
under Rule 45 of the 1997 Rules of Civil Procedure, as amended, filed
by Atty. Jose M. Caringal, petitioner, assailing the January 27, 2004
Decision[4] of the Court of Appeals in CA-G.R. SP No. 66695, entitled
JOSE M. CARINGAL vs. PHILIPPINE CHARITY SWEEPSTAKES OFFICE, ET
AL.
On December 9, 1998, petitioner was appointed Assistant
Department Manager II in the Philippine Charity Sweepstakes Office

(PCSO), respondent.

On December 18, 1998, then PCSO Chairman,

Justice Cecilia Munoz-Palma, instructed him to assume the duties and

responsibilities of Assistant Manager in the Legal Department.
Subsequently, Chairman Ricardo Golpeo replaced Justice
Munoz-Palma.
139

On May 16, 2000, he issued Special Order No. 2000-

re-assigning

petitioner

to

the

Assets

and

Investment

Department.
On May 18, 2000, petitioner sent a Memorandum to Chairman
Golpeo and Ms. Maripaz Magsalin, Assistant General Manager for
Administration,

protesting his re-assignment, the same being a

constructive dismissal.
On May 19, 2000, Director Arnel Del Monte of the Civil Service
Commission (CSC) wrote Manager Francisco Swin of the PCSO
Administrative Department, stating that his office inadvertently
omitted to stamp on petitioners appointment the collatilla that the
appointee does not have security of tenure until he obtains a
CES eligibility.

However, Director Del Monte could not effect the necessary

correction since petitioner has the original copy of his appointment.
On June 16, 2000, petitioner filed with the CSC an administrative
complaint for constructive dismissal and culpable violation of the
Constitution on civil service appointments against Chairman Golpeo
and Assistant General Manager Magsalin.
On June 22, 2000, the PCSO Board of Directors issued Resolution
No. 793 terminating the employment of petitioner on the ground that
he does not have security of tenure as he does not possess a Career
Executive Service (CES) eligibility.
On June 28, 2000, Chairman Golpeo issued a Memorandum to
petitioner informing him that his temporary appointment as Assistant
Department Manager II of the Legal Department is terminated
effective June 30, 2000, in accordance with Sections 4 and 13 of Rule
5 on Appointments under the Omnibus Rules Implementing Book 5 of
Executive Order No. 292.[5]
Meantime, on February 15, 2001, the CSC issued Resolution No.
01-0444 dismissing petitioners administrative complaint against

Chairman Golpeo and Assistant General Manager Magsalin for lack of

merit. The CSC held:
The sole issue to be resolved in the case at bar is whether or not
the separation of Jose Caringal from the service as Assistant Department
Manager II, Legal Department, PCSO, was unlawful.
After a careful evaluation of the records, the Commission rules in
the negative.
It must be stressed that Jose Caringals position is a third level
position. As such, the qualifications for the position are as follows:
POSITION
LEVEL
EDUCATION
EXPERIENCE
TRAINING
ELIGIBILITY

: Assistant Department Manager II

: 3
: Bachelors Degree
: 3 years of supervisory experience
: None
: Career Service Executive Eligibility
(CSEE)/Career Executive Service (CES)

Records show that Caringal does not possess the required

eligibility for the position. Thus, he does not have security of tenure
and his employment may be terminated at any given time by the
appointing authority and be replaced by a CES eligible.
The appointment of Atty. Lauro Patiag, a CES eligible, vice Atty.
Jose Caringal, the herein appellant, was more in accord with the existing
law and jurisprudence.
In particular, the pertinent provision that is applicable to the
present case is Rule V specifically Section 4 thereof of the Omnibus
Rules Implementing Book V of Executive Order No. 292 which
provides, that:
Section 4. Except as otherwise provided herein, a
person who meets all the requirements of the position including
the appropriate civil service eligibility shall be appointed to a
position in the first and second levels. However, when the
immediate filing of a vacancy becomes necessary, taking into
account the public interest, and a person with an appropriate civil
service eligibility but who meets the other requirements of the

position may be appointed. His appointments shall be temporary

for a period of not more than 12 months and he may be replaced
at any time with one who has an appropriate civil service
eligibility.

xxx

xxx

xxx

It must be emphasized that if an appointment to a third level

position is issued to one who does not meet the eligibility requirement,
the appointment shall be approved but the appointee is not entitled to the
mantle of security of tenure. Hence, albeit there were variation in the
wordings of the attestation of the Commission, the absence of the
appropriate eligibility makes the appointment temporary in nature.
xxx

xxx

xxx

In brief, the termination of appointment of Caringal was

precipitated by the appointment of Atty. Lauro Patiag, a CES eligible, to
the position temporarily held by Caringal. Such termination was valid
and lawful.[6]

On July 16, 2001, the CSC denied petitioners motion for

reconsideration.[7]
Petitioner then filed with the Court of Appeals a petition for
certiorari[8] under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, docketed as CA-G.R. SP. No. 66695.
On January 27, 2004, the Appellate Court issued the assailed
Decision dismissing the petition and affirming the Resolutions of the
CSC, thus:
Undisputably, the original appointment of Atty. Caringal to the position of
Assistant Department manager II was permanent in status. On this basis, he

asserts security of tenure and argues that he can only be replaced for just
cause.
In this regard, the established law provides that security of tenure can
only be enjoyed when a person has complied with all the requirements of the
position to which he is being appointed and civil service eligibility necessary for
a permanent appointment. Section 2 (a) of the Omnibus Rules On
Appointments and Other Personnel Actions states:
a. Permanent Issued to a person who meets all the minimum
qualification requirements of the position to which he is being appointed,
including the appropriate eligibility required, in accordance with the
provisions of law, rules and standards promulgated in pursuance
thereof.

In applying the provision of law cited above, it must be stressed that the
position of Assistant Department Manager II requires Career Executive Service
eligibility, which is conferred after passing the CES examination. Afterwards,
and provided the examinee complies with the other requirements prescribed by
the Board, the holder of the CES position may qualify for appointment to a CES
rank, made by the President upon recommendation of the CES Board. This
process completes membership in the CES and most importantly, confers on
him security of tenure in the CES.
xxx

xxx

xxx

Nevertheless, the failure to notify Atty. Caringal does not entitle him to
reinstatement to his position with back salaries. On July 3, 2000, a few days
after the termination of his employment, the PCSO appointed Atty. Lauro A.
Patiag to the position he vacated. The status of Mr. Patiags appointment was
permanent since he possessed all the requirements of the position, including
the appropriate CES eligibility. With Atty. Caringals appointment being merely
temporary, he could be replaced at any time by a more qualified appointee,
who, in this case, was Atty. Patiag. In this regard, Section 2(b) of the Omnibus
Rules on Appointments And Other Personnel Actions (Memorandum Circular
No. 40, S. 1998) provides:
Temporary issued to a person who meets the education,
experience and training requirements for the position to which he is
being appointed except for the appropriate eligibility but only in the
absence of a qualified eligible actually available, as certified to by the
Civil Service Regional Director or Field Officer. The appointment shall
not exceed twelve months, reckoned from the date it was issued but the
appointee may be replaced sooner if a qualified eligible who is willing to
accept the appointment becomes actually available.
xxx

xxx

xxx

The fact that the correction in the appointment of Atty. Caringal was
made a year and four months after its issuance cannot in any manner mean that

a replacement beyond this period is barred by laches. Although lacking CES

eligibility, he may continue to serve beyond a one-year period provided no one
has qualified. This is obvious from the directive of the Office of the President,
which holds:
Pursuant to existing laws and jurisprudence, all non-Carrer
Executive Service Officials (non CESO) occupying Career Executive
Service (CES) Positions, shall continue on hold-over capacity. To
perform their duties and discharge their responsibilities until their
successors have been appointed and have qualified. (Memorandum
Circular No. 35 dated June 30, 1999)

xxx

xxx

xxxx

WHEREFORE, the petition is DENIED (sic). Resolution No. 010444

dated Febraury 15, 2001 and Resolution No. 011268 dated July 26, 2001 of the
Civil Service Commission are AFFIRMED. No costs.
SO ORDERED.

Hence, the present petition. Petitioner contends that: (1) he was

denied his day in court; (2) the CSC did not follow its own rules; and
(3) the Court of Appeals erred in not finding that there was
discrimination on the part of the PCSO against him.
Respondent PCSO, on the other hand, maintains inter alia that
petitioner was separated from the service because he does not
possess the CES eligibility required by law; that his successor, Atty.
Lauro Patiag, is qualified for the position because he is a CES eligible;
and the CSC followed its own rules.

The issues boil down to whether petitioners separation from the

service is in accordance with the Civil Service law and rules.
The petition must fail.
Section 27 (1), of the Civil Service Law[9] provides:
(1)

Permanent status. A permanent appointment shall be issued to

a person who meets all the requirements for the position to which
he is being appointed, including the appropriate eligibility
prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof.

In the career executive service, the acquisition of security of

tenure which presupposes a permanent appointment is governed by
the Rules and Regulations promulgated by the CES Board,[10] thus:
Career Executive Service Eligibility
Passing the CES examination entitles the examinee to a conferment of a
CES eligibility and the inclusion of his name in the roster of CES eligibles.
Conferment of CES eligibility is done by the Board through a formal Board
Resolution after an evaluation is done of the examinees performance in the
four stages of the CES eligibility examinations.
xxx

xxx

xxx

Appointment to CES Rank

Upon conferment of a CES eligibility and compliance with the other
requirements prescribed by the Board, an incumbent of a CES position may
qualify for appointment to a CES rank. Appointment to a CES rank is made by
the President upon the recommendation of the Board. This process
completes the officials membership in the CES and most importantly,
confers on him security of tenure in the CES.

As clearly set forth in the foregoing provisions, what entitles an

examinee to a conferment of a CES eligibility is his passing the CES
examination. Upon conferment of a CES eligibility, an incumbent of a
CES position may qualify for appointment to a CES rank.

After such

appointment, the appointee is entitled to a security of tenure.

There is no question that petitioner does not possess the

required CES eligibility.

Hence, he has no security of tenure as his

appointment is merely temporary.

not attain permanency.

To be sure, his appointment did

Such being the case, it can be withdrawn

from him anytime without violating the constitutionally guaranteed

right to security of tenure.[11]

In Achacoso v. Macaraig,[12] we held:

It is settled that a permanent appointment can be issued only to a
person who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed. Achacoso did not.
At best, therefore, his appointment could be regarded only as temporary. And
being so, it could be withdrawn at will by the appointing authority and at a
moments notice, conformably to established jurisprudence.
xxx

xxx

xxx

The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of it. A
person who does not have the requisite qualifications for the position cannot be

appointed to it in the first place or, as an exception to the rule, may be appointed
to it merely in an acting capacity in the absence of appropriate eligibles. The
appointment extended to him cannot be regarded as permanent even if it may
be so designated.

Considering that petitioner is not a CES eligible, he has no

security of tenure.

Consequently, the PCSO could terminate his

employment at any time and could be replaced by a CES eligible.

In

approving or disapproving an appointment, the CSC merely examines

the conformity of the appointment with the law and the appointees
possession

of

the

required

qualification

and

none

of

the

disqualification.[13]
WHEREFORE, the petition is DENIED. The assailed Decision of
the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.

EN BANC
[G.R. No. 127182. January 22, 2001]
HON. ALMA G. DE LEON, Chairman, HON. THELMA P. GAMINDE, Commissioner, and HON.
RAMON P. ERENETA, JR., Commissioner, Civil Service Commission, and SECRETARY RAFAEL
M. ALUNAN, III, Department of Interior and Local Government, petitioners, vs. HON. COURT OF
APPEALS and JACOB F. MONTESA, respondents.
DECISION

YNARES-SANTIAGO, J.:
Can a person who lacks the necessary qualifications for a public position be appointed to it in a
permanent capacity?
Before the Court is a Petition for Review on Certiorari assailing the April 25, 1996 Decision,[1] and
November 20, 1996 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 38664, which set aside
Resolution Nos. 953268[3] and 955201[4] of the Civil Service Commission; and declared as null and
void - (1) Department Order No. 94-370,[5] issued by the Department of Interior and Local
Government, relieving private respondent of his duties as Department Legal Counsel/Director III and
reassigning him as Director III (Assistant Regional Director), Region XI; and (2) Administrative Order
No. 235 issued by then President Fidel V. Ramos, dropping private respondent from the rolls of public
service, for serious neglect of duty and absences without official leave.
On August 28, 1986, private respondent Atty. Jacob F. Montesa, who is not a Career Executive Service
Officer (CESO) or a member of the Career Executive Service, was appointed as Ministry Legal
Counsel - CESO IV in the Ministry of Local Government (now Department of Interior and Local
Government [hereafter referred to as Department]), by then Minister Aquilino Pimentel, Jr. Private
respondents appointment was approved as permanent by the Civil Service Commission.
On July 25, 1987, then President Corazon C. Aquino promulgated Executive Order No. 262,
reorganizing the Department. On April 8, 1988, then Secretary Luis T. Santos, who succeeded
Minister Pimentel, designated Nicanor M. Patricio as Chief, Legal Service in place of private
respondent who, in turn, was directed to report to the office of the Secretary to perform special
assignments.
Consequently, private respondent filed before this Court a petition for quo warranto, docketed as G.R.
No. 83470,[6] against then Secretary Luis T. Santos and Nicanor Patricio. On September 26, 1990, we
ruled in favor of private respondent Montesa and ordered his reinstatement to his former position.
Meanwhile, Republic Act No. 6758 (otherwise known as the Salary Standardization Law) took effect
on July 1, 1989. Pursuant thereto, the position of Department Service Chiefs, which include the
Department Legal Counsel, was reclassified and ranked with Assistant Bureau Directors under the
generic position title of Director III.[7]
Hence, in the execution of the decision of this Court in G.R. No. 83470, respondent was reinstated to
the position: Department Legal Counsel and/or Director III.[8]
On July 26, 1994, then Secretary Rafael M. Alunan III, citing as reasons the interest of public service
and the smooth flow of operations in the concerned offices, issued Department Order No. 94-370,
relieving private respondent of his current duties and responsibilities and reassigning him as Director
III (Assistant Regional Director), Region XI.[9] Private respondent, however, did not report to his new
assigned position. Instead, he filed a 90-day sick leave, and upon the expiration thereof on December
5, 1994, he submitted a memorandum for then acting Secretary Alexander P. Aguirre, signifying his
intention to re-assume his position as Department Legal Counsel/Chief, Legal Services.[10]
Thereupon, Acting Secretary Aguirre, by memorandum dated December 6, 1994,[11] reiterated to
private respondent that the issuance of Department Order No. 94-370, transferring him to Region XI,

was in keeping with the interest of the public service and of the Career Executive Service (CES)
provision on assignment, reassignment, and transfer. Accordingly, private respondent was advised to
report to Region XI immediately.
Private respondent wrote a memorandum dated December 12, 1994,[12] requesting for a
reconsideration of Department Order No. 94-370, but to no avail. Private respondent appealed to the
Civil Service Commission and the latter issued Resolution No. 95-3268,[13] dated May 23, 1995 which
sustained his reassignment to Region XI, on the grounds that: 1) the subject reassignment was not
violative of the due process clause of the Constitution or of private respondents right to security of
tenure; 2) the reassignment did not entail any reduction in rank or status; 3) private respondent could be
reassigned from one station to another without his consent as the rule against unconsented transfer
applies only to an officer who is appointed to a particular station, and not merely assigned thereto.
Private respondents motion for reconsideration of the aforesaid Resolution was similarly denied by the
Commission in Resolution No. 955201 dated August 22, 1995.[14]
On October 10, 1995, the Department directed private respondent to report to his new assigned post in
Region XI, stressing that his continued non-compliance with D.O. No. 94-370 is prejudicial to the
interest of public service, particularly in Region XI. Private respondent was also warned that upon his
failure to comply, the Department shall be constrained to consider him on Absence Without Leave
(AWOL) and as a consequence, drop him from the rolls of public service.[15]
Instead of complying therewith, private respondent, on October 23, 1995, filed with the Court of
Appeals a Petition for Review with prayer for the issuance of a temporary restraining order and/or
preliminary injunction. No restraining order or preliminary injunction, however, was issued by the
court.
On December 13, 1995, then President Fidel V. Ramos, upon the recommendation of the Department,
issued Administrative Order No. 235, dropping private respondent Atty. Jacob F. Montesa, Director III,
Legal Service, from the roster of public servants for serious neglect of duty and absences without leave
(AWOL).[16]
On April 25, 1996, the Court of Appeals rendered its decision in favor of private respondent, holding as
follows:
WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it affects
petitioner, Jacob F. Montesa, is hereby declared null and void. Petitioner is hereby ordered retained
in his position as Chief, Legal Service or Department Legal Counsel in the DILG, without loss of
seniority, rank, emolument and privileges. The DILG Secretary is hereby ordered to release to
petitioner his withheld salaries corresponding to the period July 15-21, 1995 and his back salaries, if
also withheld, corresponding to the period July 22, 1995 to September 27, 1995.
Finding that petitioner has not paid the amount of P500.00 as deposit for costs (page 1, Rollo), he is
hereby ordered to pay the same to the Clerk of this Court within five (5) days from receipt of this
decision.
SO ORDERED.[17]

Both petitioners and private respondent moved for reconsideration. In his Motion for Clarification
and/or Partial Motion for Reconsideration, private respondent prayed for backwages to cover the
period from October 5, 1995 up to his actual reinstatement to office, the period from August 1, 1994 to
July 14, 1995 having been covered by approved leave of absences with pay, while the period July 1521, 1995 is the period where his name was included in the payroll but release of his salary was illegally
withheld by private respondent Alunan on July 21, 1995, and the period of July 22 to October 4, 1995
is the period where respondent Alunan withheld his salary even before CSC Resolution No. 95-9201
(should be No. 95-3268) became executory.[18] Respondent likewise prayed for the award of RATA
during the period of his illegal dismissal.
Petitioners, on the other hand, posited that the decision of the Court of Appeals is not confluent with
Administrative Order No. 235, issued on December 13, 1995 by then President Ramos which dropped
petitioner from the roster of public servants. They further argued that until and unless the said Order is
declared illegal and/or invalid, the presumption is in favor of its validity and it is incumbent upon
private respondent to comply therewith so as not to prejudice the public service.
On November 20, 1996, the Court of Appeals issued the assailed resolution modifying its April 25,
1996 decision, thus:
WHEREFORE, premises considered, the Motion for Reconsideration filed by public respondents is
hereby DENIED for lack of merit. Petitioners Motion for Clarification and/or Partial Motion for
Reconsideration is hereby GRANTED. The dispositive portion of the decision is hereby modified to
read as follows:
WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it affects
petitioner, Jacob Montesa, and Administrative Order No. 235 are hereby declared null and void.
Petitioner is hereby ordered reinstated to his position as Chief Legal Service or Department Legal
Counsel in the DILG, without loss of seniority, rank, emolument and privileges. The DILG Secretary
is hereby ordered to release to petitioner his withheld salaries and backwages, including allowances
(RATA) and other benefits, to which petitioner would have been entitled had he not been illegally
removed, corresponding to the period July 15, 1995 up to his actual reinstatement to office.
SO ORDERED.[19]
Dissatisfied, petitioners filed the instant petition with this Court, contending that:
I
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESAS
REASSIGNMENT IS ACTUALLY AN UNCONSENTED TRANSFER.
II
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESAS
TRANSFER CHANGES HIS APPOINTMENT FROM PERMANENT TO TEMPORARY
AND VIOLATES HIS CONSTITUTIONAL RIGHT TO SECURITY OF TENURE.
III

RESPONDENT COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF

DISCRETION IN ORDERING THE REINSTATEMENT OF RESPONDENT MONTESA IN
OPEN DISREGARD OF ADMINISTRATIVE ORDER NO. 235 ISSUED BY THE PRESIDENT
OF THE PHILIPPINES DROPPING HIM FROM THE ROSTER OF PUBLIC SERVANTS.
IV
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA
IS ENTITLED TO BACKWAGES, INCLUDING RATA AND OTHER BENEFITS,
CORRESPONDING TO THE PERIOD FROM JULY 15, 1995 UP TO HIS ACTUAL
REINSTATEMENT.[20]
Succinctly put, the pivot of inquiry here boils down to the nature of the appointment of private
respondent Atty. Jacob F. Montesa.
At the outset, it must be stressed that the position of Ministry Legal Counsel - CESO IV is embraced in
the Career Executive Service. Under the Integrated Reorganization Plan, appointment thereto shall be
made as follows:
c.
Appointment. Appointment to appropriate classes in the Career Executive Service shall be
made by the President from a list of career executive eligibles recommended by the Board. Such
appointments shall be made on the basis of rank; provided that appointments to the higher ranks which
qualify the incumbents to assignments as undersecretary and heads of bureaus and offices and
equivalent positions shall be with the confirmation of the Commission on Appointments. The President
may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible;
provided that such appointee shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher class until he qualifies in such examination.
At the initial implementation of this Plan, an incumbent who holds a permanent appointment to a
position embraced in the Career Executive Service shall continue to hold his position, but may not
advance to a higher class of position in the Career Executive Service unless or until he qualifies for
membership in the Career Executive Service.[21]
Corollarily, the required Career Executive Service eligibility may be then acquired in the following
manner:
Career Executive Service Eligibility
Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the
inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the
Board through a formal Board Resolution after an evaluation of the examinees performance in the
four stages of the CES eligibility examinations.[22]
In the case at bar, there is no question that private respondent does not have the required CES
eligibility. As admitted by private respondent in his Comment, he is not a CESO or a member of the
Career Executive Service.
In the case of Achacoso v. Macaraig, et al.,[23] the Court held that:

It is settled that a permanent appointment can be issued only to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and at a
moments notice, conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties in the
petitioners Reply and the Solicitor-Generals Rejoinder, must find for the respondents.
The mere fact that a position belongs to the Career Service does not automatically confer security of
tenure on its occupant even if he does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A
person who does not have the requisite qualifications for the position cannot be appointed to it in the
first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in
the absence of appropriate eligibles. The appointment extended to him cannot be regarded as
permanent even if it may be so designated.
Evidently, private respondents appointment did not attain permanency. Not having taken the
necessary Career Executive Service examination to obtain the requisite eligibility, he did not at the time
of his appointment and up to the present, possess the needed eligibility for a position in the Career
Executive Service. Consequently, his appointment as Ministry Legal Counsel - CESO IV/ Department
Legal Counsel and/or Director III, was merely temporary. Such being the case, he could be transferred
or reassigned without violating the constitutionally guaranteed right to security of tenure.
Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility
and flexibility concepts in the assignment of personnels under the Career Executive Service[24] do not
apply to him because he is not a Career Executive Service Officer. Obviously, the contention is
without merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent
appointments to CES positions were never meant to remain immobile in their status. Otherwise, their
lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege
even their eligible counterparts do not enjoy.
Then too, the cases on unconsented transfer invoked by private respondent find no application in the
present case. To reiterate, private respondents appointment is merely temporary; hence, he could be
transferred or reassigned to other positions without violating his right to security of tenure.
WHEREFORE, based on the foregoing, the Petition is GRANTED. The April 25, 1996 Decision and
the November 20, 1996 Resolution of the Court of Appeals in CA-G.R. SP No. 38664 are REVERSED
and SET ASIDE. Resolution Nos. 953268 and 955201 of the Civil Service Commission are
REINSTATED. No pronouncement as to costs.
SO ORDERED.

FIRST DIVISION

G.R. No. 103125 May 17, 1993

PROVINCE OF CAMARINES SUR, represented by GOV. LUIS R. VILLAFUERTE and
HON. BENJAMIN V. PANGA as Presiding Judge of RTC Branch 33 at Pili, Camarines
Sur, petitioners,
vs.
THE COURT OF APPEALS (THIRD DIVISION), ERNESTO SAN JOAQUIN and EFREN
SAN JOAQUIN, respondents.
The Provincial Attorney for petitioners.
Reynaldo L. Herrera for Ernesto San Joaquin.

QUIASON, J.:
In this appeal by certiorari from the decision of the Court of Appeals in AC-G.R. SP No. 20551
entitled "Ernesto N. San Joaquin, et al., v. Hon. Benjamin V. Panga, et al.," this Court is
asked to decide whether the expropriation of agricultural lands by local government units is
subject, to the prior approval of the Secretary of the Agrarian Reform, as the implementator of
the agrarian reform program.
On December 22, 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur
passed Resolution No. 129, Series of 1988, authorizing the Provincial Governor to purchase
or expropriate property contiguous to the provincial capitol site, in order to establish a pilot
farm for non-food and non-traditional agricultural crops and a housing project for provincial
government employees.
The "WHEREAS" clause o:f the Resolution states:
WHEREAS, the province of Camarines Sur has adopted a five-year Comprehensive
Development plan, some of the vital components of which includes the establishment of model
and pilot farm for non-food and non-traditional agricultural crops, soil testing and tissue culture
laboratory centers, 15 small scale technology soap making, small scale products of plaster of
paris, marine biological and sea farming research center,and other progressive feasibility
concepts objective of which is to provide the necessary scientific and technology know-how to
farmers and fishermen in Camarines Sur and to establish a housing project for provincial
government employees;
WHEREAS, the province would need additional land to be acquired either by purchase or
expropriation to implement the above program component;

WHEREAS, there are contiguous/adjacent properties to be (sic) present Provincial Capitol Site
ideally suitable to establish the same pilot development center;
WHEREFORE . . . .

Pursuant to the Resolution, the Province of Camarines Sur, through its Governor, Hon. Luis
R.Villafuerte, filed two separate cases for expropriation against Ernesto N. San Joaquin and
Efren N. San Joaquin, docketed as Special Civil Action Nos. P-17-89 and P-19-89 of the
Regional Trial Court, Pili, Camarines Sur, presided by the Hon. Benjamin V. Panga.
Forthwith, the Province of Camarines Sur filed a motion for the issuance of writ of possession.
The San Joaquins failed to appear at the hearing of the motion.
The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price
offered for their property. In an order dated December 6, 1989, the trial court denied the
motion to dismiss and authorized the Province of Camarines Sur to take possession of the
property upon the deposit with the Clerk of Court of the amount of P5,714.00, the amount
provisionally fixed by the trial court to answer for damages that private respondents may
suffer in the event that the expropriation cases do not prosper. The trial court issued a writ of
possession in an order dated January18, 1990.
The San Joaquins filed a motion for relief from the order, authorizing the Province of
Camarines Sur to take possession of their property and a motion to admit an amended motion
to dismiss. Both motions were denied in the order dated February 1990.
In their petition before the Court of Appeals, the San Joaquins asked: (a) that Resolution No.
129, Series of 1988 of the Sangguniang Panlalawigan be declared null and void; (b) that the
complaints for expropriation be dismissed; and (c) that the order dated December 6, 1989 (i)
denying the motion to dismiss and (ii) allowing the Province of Camarines Sur to take
possession of the property subject of the expropriation and the order dated February 26,
1990, denying the motion to admit the amended motion to dismiss, be set aside. They also
asked that an order be issued to restrain the trial court from enforcing the writ of possession,
and thereafter to issue a writ of injunction.
In its answer to the petition, the Province of Camarines Sur claimed that it has the authority to
initiate the expropriation proceedings under Sections 4 and 7 of Local Government Code
(B.P. Blg. 337) and that the expropriations are for a public purpose.
Asked by the Court of Appeals to give his Comment to the petition, the Solicitor General
stated that under Section 9 of the Local Government Code (B.P. Blg. 337), there was no need
for the approval by the Office of the President of the exercise by the Sangguniang
Panlalawigan of the right of eminent domain. However, the Solicitor General expressed the
view that the Province of Camarines Sur must first secure the approval of the Department of
Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing
project.
The Court of Appeals set aside the order of the trial court, allowing the Province of Camarines
Sur to take possession of private respondents' lands and the order denying the admission of

the amended motion to dismiss. It also ordered the trial court to suspend the expropriation
proceedings until after the Province of Camarines Sur shall have submitted the requisite
approval of the Department of Agrarian Reform to convert the classification of the property of
the private respondents from agricultural to non-agricultural land.
Hence this petition.
It must be noted that in the Court of Appeals, the San Joaquins asked for: (i) the dismissal of
the complaints for expropriation on the ground of the inadequacy of the compensation offered
for the property and (ii) the nullification of Resolution No. 129, Series of 1988 of the
Sangguniang Panlalawigan of the Province of Camarines Sur.
The Court of Appeals did not rule on the validity of the questioned resolution; neither did it
dismiss the complaints. However, when the Court of Appeals ordered the suspension of the
proceedings until the Province of Camarines Sur shall have obtained the authority of the
Department of Agrarian Reform to change the classification of the lands sought to be
expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid
and that the expropriation is for a public purpose or public use.
Modernly, there has been a shift from the literal to a broader interpretation of "public purpose"
or "public use" for which the power of eminent domain may be exercised. The old concept
was that the condemned property must actually be used by the general public (e.g. roads,
bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional
requirement of "public use". Under the new concept, "public use" means public advantage,
convenience or benefit, which tends to contribute to the general welfare and the prosperity of
the whole community, like a resort complex for tourists or housing project (Heirs of Juancho
Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SC.RA 461 [1987]).
The expropriation of the property authorized by the questioned resolution is for a public
purpose. The establishment of a pilot development center would inure to the direct benefit
and advantage of the people of the Province of Camarines Sur. Once operational, the center
would make available to the community invaluable information and technology on agriculture,
fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and
craftsmen would be enhanced. The housing project also satisfies the public purpose
requirement of the Constitution. As held in Sumulong v. Guerrero, 154 SCRA 461, "Housing is
a basic human need. Shortage in housing is a matter of state concern since it directly and
significantly affects public health, safety, the environment and in sum the general welfare."
It is the submission of the Province of Camarines Sur that its exercise of the power of eminent
domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law
(R.A. No. 6657), particularly Section 65 thereof, which requires the approval of the
Department of Agrarian Reform before a parcel of land can be reclassified from an
agricultural to a non-agricultural land.
The Court of Appeals, following the recommendation of the Solicitor General, held that the
Province of Camarines Sur must comply with the provision of Section 65 of the
Comprehensive Agrarian Reform Law and must first secure the approval of the Department of
Agrarian Reform of the plan to expropriate the lands of the San Joaquins.

In Heirs of Juancho Ardana v. Reyes, 125 SCRA 220, petitioners raised the issue of whether
the Philippine Tourism Authority can expropriate lands covered by the "Operation Land
Transfer" for use of a tourist resort complex. There was a finding that of the 282 hectares
sought to be expropriated, only an area of 8,970 square meters or less than one hectare was
affected by the land reform program and covered by emancipation patents issued by the
Ministry of Agrarian Reform. While the Court said that there was "no need under the facts of
this petition to rule on whether the public purpose is superior or inferior to another purpose or
engage in a balancing of competing public interest," it upheld the expropriation after noting
that petitioners had failed to overcome the showing that the taking of 8,970 square meters
formed part of the resort complex. A fair and reasonable reading of the decision is that this
Court viewed the power of expropriation as superior to the power to distribute lands under the
land reform program.
The Solicitor General denigrated the power to expropriate by the Province of Camarines Sur
by stressing the fact that local government units exercise such power only by delegation.
(Comment, pp. 14-15; Rollo, pp. 128-129)
It is true that local government units have no inherent power of eminent domain and can
exercise it only when expressly authorized by the legislature (City of Cincinnati v. Vester, 28l
US 439, 74 L.ed. 950, 50 SCt. 360). It is also true that in delegating the power to expropriate,
the legislature may retain certain control or impose certain restraints on the exercise thereof
by the local governments (Joslin Mfg. Co. v. Providence, 262 US 668 67 L. ed. 1167, 43 S Ct.
684). While such delegated power may be a limited authority, it is complete within its limits.
Moreover, the limitations on the exercise of the delegated power must be clearly expressed,
either in the law conferring the power or in other legislations.
Resolution No. 129, Series of 1988, was promulgated pursuant to Section 9 of B.P. Blg. 337,
the Local Government Code, which provides:
A local government unit may, through its head and acting pursuant to a resolution of its
sanggunian exercise the right of eminent domain and institute condemnation proceedings for
public use or purpose.

Section 9 of B.P. Blg. 337 does not intimate in the least that local government, units must first
secure the approval of the Department of Land Reform for the conversion of lands from
agricultural to non-agricultural use, before they can institute the necessary expropriation
proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law
which expressly subjects the expropriation of agricultural lands by local government units to
the control of the Department of Agrarian Reform. The closest provision of law that the Court
of Appeals could cite to justify the intervention of the Department of Agrarian Reform in
expropriation matters is Section 65 of the Comprehensive Agrarian Reform Law, which reads:
Sec. 65. Conversion of Lands. After the lapse of five (5) years from its award, when the land
ceases to be economically feasible and sound for, agricultural purposes, or the locality has
become urbanized and the land will have a greater economic value for residential, commercial
or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due
notice to the affected parties, and subject to existing laws, may authorize the reclassification or
conversion of the land and its disposition: Provided, That the beneficiary shall have fully paid his
obligation.

The opening, adverbial phrase of the provision sends signals that it applies to lands
previously placed under the agrarian reform program as it speaks of "the lapse of five (5)
years from its award."
The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive
Order No. 129-A, Series of 1987, cannot be the source of the authority of the Department of
Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to
which it would be devoted by the expropriating authority. While those rules vest on the
Department of Agrarian Reform the exclusive authority to approve or disapprove conversions
of agricultural lands for residential, commercial or industrial uses, such authority is limited to
the applications for reclassification submitted by the land owners or tenant beneficiaries.
Statutes conferring the power of eminent domain to political subdivisions cannot be
broadened or constricted by implication (Schulman v. People, 10 N.Y. 2d. 249, 176 N.E. 2d.
817, 219 NYS 2d. 241).
To sustain the Court of Appeals would mean that the local government units can no longer
expropriate agricultural lands needed for the construction of roads, bridges, schools,
hospitals, etc, without first applying for conversion of the use of the lands with the Department
of Agrarian Reform, because all of these projects would naturally involve a change in the land
use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the
expropriation is for a public purpose or public use.
Ordinarily, it is the legislative branch of the local government unit that shall determine whether
the use of the property sought to be expropriated shall be public, the same being an
expression of legislative policy. The courts defer to such legislative determination and will
intervene only when a particular undertaking has no real or substantial relation to the public
use (United States Ex Rel Tennessee Valley Authority v. Welch, 327 US 546, 90 L. ed. 843,
66 S Ct 715; State ex rel Twin City Bldg. and Invest. Co. v. Houghton, 144 Minn. 1, 174 NW
885, 8 ALR 585).
There is also an ancient rule that restrictive statutes, no matter how broad their terms are, do
not embrace the sovereign unless the sovereign is specially mentioned as subject thereto
(Alliance of Government Workers v. Minister of Labor and Employment, 124 SCRA 1 [1983]).
The Republic of the Philippines, as sovereign, or its political subdivisions, as holders of
delegated sovereign powers, cannot be bound by provisions of law couched in general term.
The fears of private respondents that they will be paid on the basis of the valuation declared
in the tax declarations of their property, are unfounded. This Court has declared as
unconstitutional the Presidential Decrees fixing the just compensation in expropriation cases
to be the value given to the condemned property either by the owners or the assessor,
whichever was lower ([Export Processing Zone Authority v. Dulay, 149 SCRA 305 [1987]). As
held in Municipality of Talisay v. Ramirez, 183 SCRA 528 [1990], the rules for determining just
compensation are those laid down in Rule 67 of the Rules of Court, which allow private
respondents to submit evidence on what they consider shall be the just compensation for their
property.

WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals
is set aside insofar as it (a) nullifies the trial court's order allowing the Province of Camarines
Sur to take possession of private respondents' property; (b) orders the trial court to suspend
the expropriation proceedings; and (c) requires the Province of Camarines Sur to obtain the
approval of the Department of Agrarian Reform to convert or reclassify private respondents'
property from agricultural to non-agricultural use.
The decision of the Court of Appeals is AFFIRMED insofar as it sets aside the order of the
trial court, denying the amended motion to dismiss of the private respondents.
SO ORDERED.

PROVINCE OF CAMARINES SUR vs. CA and TITO B. DATO

July 14, 1995;
KAPUNAN,
J.
FACTS:
In January 1, 1960 - private respondent Dato was appointed as Private Agent by the then Gov. of Camarines Sur,
Apolonio Maleniza.October 12, 1972 - Dato was promoted and appointed Assistant Provincial Warden by then Gov.
Felix Alfelor, Sr.Dato had no civil service eligibility for the position he was appointed to, thus, he could not be legally
extended a permanentappointment. He was extended a temporary appointment, which was renewed annually. January 1,
1974 Gov. Alfelor approved the change in Dato's employment status from temporary to permanent upon the
latter'srepresentation that he passed the civil service examination for supervising security guards. Said change of status
however, was notfavorably acted upon by the Civil Service Commission (CSC) reasoning that Dato did not possess the
necessary civil service eligibilityfor the office he was appointed to. His appointment remained temporary and no other
appointment was extended to him.March 16, 1976 Dato was indefinitely suspended by Gov. Alfelor after criminal
charges were filed against him and a prison guard forallegedly conniving and/or consenting to evasion of sentence of
some detention prisoners who escaped from confinement. Two years after the request for change of status was made, Mr.
Lope B. Rama, head of the Camarines Sur Unit of the Civil ServiceCommission, wrote the Gov. a letter informing him
that the status of private respondent Dato has been changed from temporary topermanent, the latter having passed the
examination for Supervising Security Guard. The change of status was to be maderetroactive to June 11, 1974, the date of
release of said examination.Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant
Provincial Warden and deleted privaterespondent's name from the petitioner's plantilla.Dato was subsequently acquitted
of the charges against him. Consequently, he requested the Gov. for reinstatement and backwages.His request was not
heeded. Dato filed an action before the RTC.RTC Decision: Ordered the payment of backwages of Dato equivalent to
five years. Province of Camarines Sur appealed the decisionto the CA.CA: Affirmed RTCs decision. Hence the present
petition.
ISSUE:
W/N Dato was a permanent employee of petitioner Province of Camarines Sur at the time he was suspended on March
16,1976.Petitioners contention: When Gov. Alfelor recommended to CSC the change in the employment status of
private respondent fromtemporary to permanent, which the CSC approved as only
temporary
pending validation of the results of private respondent'sexamination for supervising security guard, private respondent's
appointment in effect remained temporary. Hence, his subsequentqualification for civil service eligibility did not
ipso facto

convert his temporary status to that of permanent.

SC Held:
Agrees with Petitioners contentions. Dato, being merely a temporary employee, is not entitled to his claim for
backwagesfor the entire period of his suspension.
Ratio:
At the time Dato was appointed Assistant Provincial Warden on January 1, 1974, he had not yet qualified in an
appropriateexamination for the aforementioned position. Such lack of a civil service eligibility made his appointment
temporary
and without afixed and definite term and is dependent entirely upon the pleasure of the appointing power. The fact that
private respondent obtained civil service eligibility later on is of no moment as his having passed the supervisingsecurity
guard examination, did not
ipso facto
convert his temporary appointment into a permanent one.
What is required is a newappointment since a permanent appointment is not a continuation of the temporary appointment
these are two distinct acts of theappointing authority The letter communicated by Mr. Lope Rama to the Gov. of
Camarines Sur is a clear arrogation of power properly belonging to theappointing authority. CSC has the power to
approve
or
disapprove
an appointment set before it. It does not have the power to makethe appointment itself or to direct the appointing authority
to change the employment status of an employee. CSC should have endedits participation in the appointment of private
respondent on January 1, 1974 when it confirmed the
temporary
status of the latterwho lacked the proper civil service eligibility. When it issued the foregoing communication on March
19, 1976, it stepped on the toesof the appointing authority, thereby encroaching on the discretion vested solely upon the
latter

EN BANC

G.R. No. 104226 August 12, 1993

CONCHITA ROMUALDEZ-YAP, petitioner,
vs.

THE CIVIL SERVICE COMMISSION and THE PHILIPPINE NATIONAL BANK, respondents.
Estelito P. Mendoza for petitioner.
The Solicitor General for the Civil Service Commission.
Domingo A. Santiago, Jr. for Philippine National Bank.

PADILLA, J.:
This is a special civil action for certiorari under Rule 65 of the Rules of Court, assailing
Resolution No. 92-201 of the respondent Civil Service Commission, which upheld the
petitioner's separation from the Philippine National Bank(PNB) as a result of the abolition of
the Fund Transfer Department pursuant to a reorganization under Executive Order No. 80,
dated 3 December 1986.
Petitioner Conchita Romualdez-Yap started working with the Philippine National Bank on 20
September 1972 as special assistant with the rank of Second Assistant Manager assigned to
the office of the PNB President. After several promotions, she was appointed in 1983 Senior
Vice President assigned to the Fund Transfer Department.
Starting 1 April 1986 up to 20 February 1987, petitioner filed several applications for leave of
absence (due to medical reasons) which were duly approved. While she was on leave,
Executive Order No. 80 (Revised Charter of the PNB) was approved on 3 December 1986.
Said executive order authorized the restructure/reorganization and rehabilitation of PNB.
Pursuant to the reorganization plan, the Fund Transfer Department was abolished and its
functions transferred to the International Department.
Consequently, petitioner was notified of her separation from the service in a letter dated 30
January 1987, thus:
Pursuant to the Transitory Provision of the 1986 Revised Charter of the Bank, please be
informed that Management has approved your separation from the service effective February
16, 1986. You shall be entitled to the regular benefits allowed under existing law. (emphasis
supplied)
Please be informed further that under Sec. 37 of the Bank's 1986 Revised Charter, any officer or
employee who feels aggrieved by any matter treated above may submit his case to the Civil
Service
Commission. 1

This letter was received by petitioner's secretary at the PNB head office on 16 February 1987.
Petitioner's first recorded appeal to the Civil Service Commission questioning her separation
is a letter dated 4 August 1989. Then CSC Chairman Samilo N. Barlongay upheld the validity
of her separation from the service in a letter/opinion dated 30 August 1989 (this was allegedly
received by petitioner only on 26 February 1990) stating thus:

xxx xxx xxx

It may be mentioned in this connection, that inasmuch as you did not avail of the
ERIP/Supplementary Retirement Plans adopted by the PNB in 1986, you have therefore lost
your right thereto. Moreover, since you lack the required number of years of service to entitle
you to retirement benefits under existing laws, you may be entitled to the return of your GSIS
personal contributions. Considering further that you have exhausted all your accumulated leave
credits as you went on leave of absence for the period from April 1, 1986 to February 20, 1987,
there is no legal or valid basis to entitle you to payment of terminal leave.
Finally, pursuant to Section 16, Article XVIII of the Transitory Provisions of the 1987 Philippine
Constitution, you may be entitled to payment of separation subject to auditing rules and
regulations. 2

In her motion for reconsideration with the Civil Service Commission, dated 5 March 1990,
questioning Chairman Barlongay's ruling, petitioner claimed:
1. The opinion/ruling was not fully supported by the evidence on record;
2. Errors of law prejudicial to the interest of the movant have been committed. She argued:
. . . that her separation from the service was illegal and was done in bad faith considering that
her termination on February 16, 1986 was made effective prior to the effectivity of Executive
Order No. 80 on December 3, 1986, which law authorized the reorganization of the PNB, and
even before February 25, 1986, when President Corazon C. Aquino came into power. She
further claims that although the notice of termination was dated January 30, 1987 it was only
served upon her on February 16, 1987 when the new Constitution which guarantees security of
tenure to public employees was already in effect. 3
xxx xxx xxx
. . . the bad faith in her separation from the service in 1987 was evident from the recent
restoration of the Fund Transfer Department as a separate and distinct unit from the
International Department . . . 4

Denying the motion for reconsideration, the Civil Service Commission in its aforecited
Resolution No. 92-201, dated 30 January, 1992, ruled:
Sec. 33 of EO 80 (1986 Revised Charter of the PNB) provides:
Sec. 33. Authority to Reorganize. In view of reduced operations contemplated under this
charter in pursuance of the national policy expressed in the "Whereas" clause hereof, a
reorganization of the Bank and a reduction in force are hereby authorized to achieve greater
efficiency and economy in operations, including the adoption of a new staffing pattern to suit the
reduced operations envisioned. The program of reorganization shall begin immediately after the
approval of this Order, and shall be completed within six (6) months and shall be fully
implemented within eighteen (18) months thereafter." Clearly; as aforequoted, PNB was
authorized to undergo reorganization and to effect a reduction in force to "achieve greater
efficiency and economy in operations". It cannot, be disputed that reduction in force
necessitates, among others, the abolition of positions/offices. The records show that prior to its
reorganization, PNB originally had 7,537 positions which were reduced to 5,405 after the
reorganization. Indeed, 2,132 positions were abolished, that is, the original positions in PNB
were reduced by 28%. This reduction in force likewise included the senior officer positions, in
PNB, which were reduced, thus:

Positions Incumbents Proposed Position

President 1 1 1
Sr. Exec. VP 1 1 0
Exec. VP 3 2 2
Senior VP 12 11 7
Vice Pres. 33 27 15
The position of movant Yap (SVP) was one among the original twelve (12) SVP positions. It was
one among the five (5) SVP positions which were abolished. In fact, the FTD of which she was
then the incumbent SVP, was merged with the International Department to which its functions
were closedly related.
It should be noted that as ruled by the Supreme Court in Dario vs. Mison (G.R. NO. 81954):
Reorganizations in this jurisdiction have been regarded as valid provided they
are pursued in good faith. As a general rule, a reorganization is carried out in
"good faith" if it is for the purpose of economy or to make bureaucracy more
efficient. In that event, no dismissal or separation actually occurs because the
position itself ceases to exist. And in that case, security of tenure would not be a
Chinese Wall. . . . .
. . . Good faith, as a component of a reorganization under a constitutional
regime is judged from the facts of each case.
In the instant case, therefore, this Commission is inclined to believe that the reorganization of
PNB was done in good faith. For indeed, the reorganization was pursued to achieve economy. It
undertook reduction in force as a means to streamline the numbers of the workforce. It was
incidental that movant Yap's position was one among those abolished. Movant Yap failed to
substantiate her claim by clear and convincing evidence that the abolition of her position was a
result of her close identification with the previous regime, being a sister of former First Lady
Imelda Romualdez Marcos. This being so, and pursuant to the presumption of regularity in the
performance of official functions, the abolition of movant Yap's position should be upheld. PNB,
in the instant case, has clearly proved by substantial evidence that its act in terminating the
services of some of its employees was done in good faith. 5

Overruling her imputation of bad faith, i.e. her separation was illegal because it took effect on
16 February 1986 or even before the promulgation of EO No. 80 on 3 December 1986, the
CSC noted that the year "1986" stated in the notice of her separation from the service was a
typographical error. PNB submitted documents (p. 6 of Resolution No. 92-201) supporting its
stand that the separation actually took effect on 16 February 1987.
On the issue of bad faith as related to the later restoration of the Fund Transfer Department,
the subject CSC resolution adds:
xxx xxx xxx
It may be mentioned that the recent restoration of the Fund Transfer Department, actually was a
merger of the Fund Transfer Group, the Foreign Remittance Development and Coordinating Unit
based on board Resolution No. 60 of March 12, 1991, or after the lapse of over four (4) years
from the date it was abolished in 1987. Moreover, the restoration of the Fund Transfer
Department and other offices in the PNB was primarily caused by the improved financial
capability and present needs of the Bank. This improved financial condition of the PNB is
evident from the 1990 Annual Report it submitted. It may be further stated that the re-

established FTD is headed by a Vice President, a position much lower in rank than the former
department headed by a Senior Vice President.
Furthermore, it should be noted that granting arguendo that movant Yap's termination from the
service was tainted with bad faith, she however, is now barred from assailing the same as she
did not seasonably assert her right thereto. Records show that she was separated from PNB on
February 16, 1987 and it was only in 1989 or about 2 years thereafter when she brought this
matter to this Commission. By her inaction in questioning her termination within a period of one
year, she is considered to have acquiesced to her separation from the service and abandoned
her right to the position. 6

In the present petition before the Court, the following issues are raised:
1. Existence of bad faith in the reorganization of the Philippine National Bank resulting in the
separation from the service of petitioner.
2. Erroneous application of the Dario v. Mison doctrine vis-a-vis PNB's reorganization.
3. Erroneous application of the one (1) year prescriptive period for quo warranto proceedings
in petitioner's case.
Dario v. Mison 7 laid down the requirement of good faith in the reorganization of a government
bureau wherein offices are abolished. It says:
. . . Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in
good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose
of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of
dismissal) or separation actually occurs because the position itself ceases to exist. And in that
case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is
nothing else but a separation or removal, is done for political reasons or purposely to defeat
security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever
"abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a
change of nomenclature of positions, or where claims of economy are belied by the existence of
ample funds. It is to be stressed that by predisposing a reorganization to the yardstick of good
faith, we are not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the
course of a reorganization in good faith is still removal "not for cause" if by "cause" we refer to
"grounds" or conditions that call for disciplinary action. Good faith, as a component of a
reorganization under a constitutional regime, is judged from the facts of each case.

In Petitioner's case, the following instances are cited by her as indicia of bad faith:
1. The abolished department was later restored and the number of senior vice presidents was
increased.
2. PNB did not follow the prescribed sequence of separation of employees from the service
contained in Rep. Act No. 6656 which is:
Sec. 3. In the separation of personnel pursuant to reorganization, the following
order of removal shall be followed:
(a) Casual employees with less than five (5) years of
government service;

(b) Casual employees with five (5) years or more of government

service;
(c) Employees holding temporary appointments; and
(d) Employees holding permanent appointments: Provided,
That those in the same category as enumerated above, who
are least qualified in terms of performance and merit shall be
laid off first, length of service notwithstanding.
3. Petitioner was not extended preference in appointment to the positions in the new staffing
pattern as mandated by Sec. 4 of Rep. Act 6656, her qualification and fitness for new positions
were never evaluated or considered in violation of Sec. 27 of P.D. 807 which was incorporated
as Sec. 29 Ch. 5 Subtitle A, Book V of the Administrative Code of 1987.
4. Lack of notice and bearing before separation from the service.
5. Petitioner was forced to take a leave of absence and prevented from reporting for work.
6. There is a discrepancy in the date of her separation from the service and the effectivity
thereof.
7. PNB employees in the Fund Transfer Department identified with her were reassigned or
frozen.
8. She is listed as having resigned instead of being separated or dismissed which was what
actually happened.
9. The dismissal was politically motivated, she being a sister of Mrs. Imelda Romualdez Marcos,
wife of deposed President Ferdinand Marcos.

Executive Order No. 80 conferred upon the PNB the authority to reorganize. The order was
issued by then Pres. Corazon Aquino on 3 December 1986 while she was exercising the
powers vested in the President of the Philippines by the Freedom Constitution. After 3
December 1986, what remained to be done was the implementation of the reorganization.
There is no doubt as to the legal basis for PNB's reorganization. The real question is: was it
done in good faith, tested by the Dario v. Mison doctrine?
To start with it is almost absurd for petitioner to insist that her termination from the service
was antedated to 16 February 1986. At that time, the reorganization of PNB had not even
been conceived. In most of PNB's pleadings, it has documented and supported its stand that
the year of petitioner's separation is 1987 not 1986. The antedating of the termination date,
aside from being clearly a typographical error, is a periphernal issue. The real issue is
existence of bad faith consisting of tangible bureaucratic/management pressures exerted to
ease her out of office. Bad faith has been defined as a state of mind affirmatively operating
with furtive design or with some motive of self interest or ill will or for an ulterior purpose. 8 It is
the performance of an act with the knowledge that the actor is violating the fundamental law
or right, even without willful intent to injure or purposive malice to perpetrate a damnifying
harm. 9

PNB's reorganization, to repeat, was by virtue of a valid law. At the time of reorganization,
due to the critical financial situation of the bank, departments, positions and functions were
abolished or merged. The abolition of the Fund Transfer Department (FTD) was deemed
necessary. This, to the Court's mind, was a management prerogative exercised pursuant to a
business judgment. At this point, a distinction can be made in ruling on the validity of a
reorganization between a government bureau or office performing constituent functions (like
the Customs) and a government-owned or controlled corporation performing ministrant
functions (like the PNB).
Constituent function are those which constitute the very bonds of society and are compulsory
in nature; ministrant functions are those undertaken by way of advancing the general interests
of society, and are merely optional. Commercial or universal banking is, ideally, not a
governmental but a private sector, endeavor. It is an optional function of government.
. . . The principles determining whether or not a government shall exercise certain of these
optional functions are: (1) that a government should do for the public welfare those things which
private capital would not naturally undertake and (2) that a government should do those things
which by its very, nature it is better equipped to administer for the public welfare than is any
private individual or group of individuals (Malcolm, The Government of the Philippine Islands,
pp. 19-20)
From the above we may infer that, strictly speaking, there are functions which our government is
required to exercise to promote its objectives as expressed in our Constitution and which are
exercised by it as an attribute of sovereignty, and those which it may exercise to promote merely
the welfare, progress and prosperity of the people. To this latter class belongs the organization
of those corporations owned or controlled by the government to promote certain aspects of the
economic life of our people such as the National Coconut Corporation. These are what we call
government-owned or controlled corporations which may take on the form of a private enterprise
or one organized with powers and formal characteristics of a private corporation under the
Corporation Law. (Bacani vs. Nacoco, No, L-9657, November 29, 1956, 100 Phil. 468)

But a reorganization whether in a government bureau performing constituent functions or in a

government-owned or controlled corporation performing ministrant functions must meet a
common test, the test of good faith. In this connection, the philosophy behind PNB's
reorganization is spelled out in the whereas clauses of Executive Order No. 80:
WHEREAS, within the context of the general policy there nevertheless exists a clear role for
direct government-participation in the banking system, particularly in servicing the requirements
of agriculture, small and medium scale industry, export development, and the government
sector.
WHEREAS, in pursuit of this national policy there is need to restructure the government financial
institutions, particularly the Philippine National Bank, to achieve a more efficient and effective
use of available scarce resources, to improve its viability, and to avoid unfair competition with
the private sector, and
WHEREAS, the reorganization and rehabilitation of the Philippine National Bank into a similar
but stronger and more operationally viable bank is an important component of the nationalization
programs for both the financial system and the government corporation sector; . . . .

Whether there was a hidden political agenda to persecute petitioner due to her consanguinial
relation to Mrs. Imelda Romualdez Marcos, the widow of former President Marcos, is not

clearly shown. On the other hand, it is entirely possible that, precisely because of such
consanguinial relation, petitioner may have been the object of deferential, if not special
treatment under the Marcos regime. It is part of the Filipino culture to extend such deferential,
if not special treatment to close relatives of persons in power. Many times this is carried to
unwholesome extremes. But a discontinuance of such deferential or special treatment in the
wake of a change in government or administration is not bad faith per se. It may be merely
putting things in their proper places.
Due to the restructuring and this is empirically verifiable PNB became once more a
viable banking institution. The restoration of the FTD four years after it was abolished and its
functions transferred to the International Department, can be attributed to the bank's growth
after reorganizations, thereby negating malice or bad faith in that reorganization. The essence
of good faith lies in an honest belief in the validity of one's right. 10 It consists of an honest
intention to abstain from taking an unconscionable and unscrupulous advantage of another,
its absence should be established by convincing evidence. 11
The records also clearly indicate that starting April 1986 to February 1987, petitioner went on
leave of absence for medical reasons. While she was not reporting to the office, the bank's
reorganization got underway. She continued, however, receiving her salaries, allowances,
emoluments, honoraria and fees up to March 1987. Employees who were affected by the
reorganization had the option to avail of the bank's Separation Benefits Plan/Early Retirement
Plan (SBP/ERIP). Petitioner opted not to avail of such plan and instead submitted to the result
of the bank's ongoing reorganization and management's discretion. If petitioner had the desire
for continued employment with the bank, she could have asserted it for management's
consideration. There is no proof on record that she affirmatively expressed willingness to be
employed. Since she cannot rebut the CSC finding that her earliest appeal was made on 4
August 1989, there is no reason for this Court to hold that she did not sleep on her rights. On
the contrary, her present argument that bad faith existed at the time of the abolition of the
FTD because it was restored four years later is a little too late. Who could have predicted in
1986 or 1987 that PNB would be able to rise from its financial crisis and become a viable
commercial bank again? The decision to abolish the FTD at the time it was abolished, to
repeat, was a business judgment made in good faith.
PNB for its part submits that its reorganization was effected in good faith
because
a) There was not only a perceptible but substantial restructuring of the PNB hierarchy showing
reduction of personnel, consolidation of offices and abolition of positions.
b) Two thousand one hundred thirty two (2,132) positions were abolished during the period from
February 16, 1986 to January 14, 1987 leaving a lean workforce of five thousand four hundred
five (5,405) as of latter date per B.R. No. 34 hereto attached as Annex "R".
c) The number of senior officers, including Senior Vice Presidents, was accordingly reduced.

Another issue raised by petitioner is PNB's alleged non-compliance with the mandate of
Sections 2 and 4 of Rep. Act No. 6656. These Sections provide:

Sec. 2. No officer or employee in the career service shall be removed except for a valid cause
and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant or there is a need to
merge, divide, or consolidate positions in order to meet the exigencies of the service, or other
lawful causes allowed by the Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of
reorganization, giving to a claim for reinstatement or reappointment by an aggrieved party.
(a) Where there is a significant increase in the number of positions in the new staffing pattern of
the department or agency concerned;
(b) Where an office is abolished and another performing substantially the same functions is
created;
(c) Where incumbents are replaced by those less qualified in terms of status of appointment,
performance and merit;
(d) Where there is a reclassification of offices in the department or agency concerned and the
reclassified offices perform substantially the same functions as the original offices;
(e) Where the removal violates the order of separation provided in Section 3 hereof.
xxx xxx xxx
Sec. 4. Officers and employees holding permanent, appointments shall be given preference for
appointment to the new position in the approved staffing pattern comparable to their former
positions or in case there are not enough comparable positions, to positions next lower in rank.
No new employees shall be taken in until all permanent officers and employees have been
appointed, including temporary and casual employees who possess the necessary qualification
requirements, among which is the appropriate civil service eligibility, for permanent appointment
to positions in the approved staffing pattern, in case there are still positions to be filled, unless
such positions are policy-determining, primarily confidential or highly technical in nature.

In the first place, Rep. Act No. 6656 cannot be invoked by petitioner because it took effect on
15 June 1987, or after PNB's reorganization had already been implemented. But assuming,
ex gratia argumenti, that it is applicable here and petitioner must be accorded preferential
right to appointment in the bank, PNB in its rejoinder impressively asserts:
Needless to say, there were various committees that were created in the implementation of the
organizational restructuring of the Bank based on the foregoing policy guidelines. Each
personnel to be retained was evaluated in terms of relative fitness and merit along with the other
personnel of the Bank. Thus, when then SVP Federico Pascual was chosen to head the
International Department from among other officers of the Bank, including Ms. Yap, his
qualifications far exceeded those of the other candidates for the position.
We attach hereto as Annexes "G-1" and "G-2" the service records of Mr. Federico Pascual and
Petitioner Ms. Yap, respectively, which clearly show that the qualifications of Mr. Pascual far
exceed those of Petitioner Yap. Aside from being a lawyer having been a law graduate from the
University of the Philippines, he is also a Bachelor of Arts degree holder from Ateneo de Manila
and a Master of Laws graduate o Columbia Law School. He had studied Masteral Arts in Public
Administration at the London School of Economics and had undergone extensive seminars
since 1974 at the International Department and had been assigned in several foreign branches
of the Bank. Before he resigned from the Bank, he held the second highest position of Executive

Vice President and served as Acting President of the Bank before the incumbent president,
President Gabriel Singson assumed his position.
On the other hand, the service record of Petitioner Yap will show that she only holds a Bachelor
of Science in Commerce Degree from Assumption Convent and has undergone only one
seminar on Management and Leadersbip Training Program. She entered the Bank service in
1972. (Rollo at pp. 312 to 313)
xxx xxx xxx

The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former
position as senior vice president and head of the Fund Transfer Department, or
reappointment to a position of comparable or equivalent rank without loss of seniority rights
and pay, etc., under the bank's new staffing pattern.
A person claiming to be entitled to a public office or position usurped or unlawfully held or
exercised by another may bring an action for quo warranto (Rule 66, Sec. 6, Rules of Court).
The petitioner therein must show a clear legal right to the office allegedly held unlawfully by
another. 12
An action for quo warranto should be brought within one (1) year after ouster from office; 13 the
failure to institute the same within the reglementary period constitutes more than a sufficient
basis for its dismissal 14 since it is not proper that the title to a public office be subjected to
continued
uncertainty . . . 15 An exception to this prescriptive period lies only if the failure to file the action
can be attributed to the acts of a responsible government officer and not of the dismissed
employee. 16
Measured by the above jurisprudence, petitioner's action may be said to be one for quo
warranto, seeking reinstatement to her former position which at present is occupied by
another. She cannot invoke De Tavera v. Phil. Tuberculosis Society, Inc., et. al. 17 and
contend that there is no claim of usurpation of office, and that quo warranto may be availed of
to assert one's right to an office in the situation obtaining in the case at bar.
Santos v. CA, et. al. 18 and Magno v. PNNC Corp. 19 are invoked by petitioner to illustrate that
this action is one for separation without just cause, hence, the prescriptive period is allegedly
four (4) years in accordance with Article 1146 of the Civil Code. 20 We do not agree.
Petitioner's separation from the service was due to the abolition of her office in
implementation of a valid reorganization. This is not the unjustifiable cause which results in
injury to the rights of a person contemplated by Article 1146. The abolition of the office was
not a whimsical, thoughtless move. It was a thoroughly evaluated action for streamlining
functions based on a rehabilitation plan. 21 At the time of the abolition of the Fund Transfer
Department in 1986, foreign exchange losses of the bank amounted to P81.1 Million. 22 The
head of office was a Senior Vice President. At the time of restoration of the department in
1991, it was headed by a vice president (lower in rank) and showed earnings of P2,620.0
Million. 23 Other departments abolished in 1986 were also subsequently restored.
Restoring petitioner to her previous position with backwages would be unjust enrichment to
her, considering that she had abandoned or showed lack of interest in reclaiming the same

position when the bank was not yet fully rehabilitated and she only insisted on reinstatement
in August 1989 or two (2) years after her alleged unjustified separation.
To those who feel that their unjustified separation from the service is for a cause beyond their
control, the aforecited Magno case teaches:
. . . while We fully recognize the special protection which the Constitution, labor laws, and social
legislation accord the workingman, We cannot, however, alter or amend the law on prescription
to relieve him of the consequences of his inaction. Vigilantibus, non dormientibus, jura
subveniunt (Laws come to the assistance of the vigilant, not of the sleeping). His explanation
that he could not have filed the complaint earlier because "he was prevented to do so beyond
his control for the simple reason that private respondent have (sic) tried to circumvent the law by
merely floating" him is very flimsy and does not even evoke sympathetic consideration, if at all it
is proper and necessary. We note that petitioner herein is not an unlettered man; he seems to
be educated and assertive of his rights and appears to be familiar with judicial procedures. He
filed a motion for extension of time to file the petition and the petition itself without the assistance
of counsel. We cannot believe that if indeed he had a valid grievance against PNCC he would
not have taken immediate positive steps for its redress.

WHEREFORE, premises considered, the assailed CSC resolution is AFFIRMED. The petition
is DISMISSED for failure to show grave abuse of discretion on the part of said CSC in
rendering the questioned resolution. No pronouncement as to costs.
SO ORDERED.

THIRD DIVISION

G.R. No. L-26785 May 23, 1991

DEOGRACIAS A. REGIS, JR., petitioner,
vs.
SERGIO OSMEA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU,
CITY TREASURER AND CITY AUDITOR, respondents.
Basilio E. Duaban for petitioner.

DAVIDE, JR., J.:p

This is an appeal from the Decision 1 of the Court of First Instance of Cebu dated 28
December 1965 in Civil Case No. R-8778, dismissing the petition for Mandamus filed on 9
March 1965 by petitioner to compel respondents to reinstate him to his former position as
driver, Motorized Section of the Cebu City Police Department (CPD), with back salaries from
the date of his ouster until reinstatement, and to pay him moral and exemplary damages and

attorney's fees. 2
The material operative facts in this case, as admitted by the parties in the stipulation of facts
they submitted in the court below and as established by the other evidence introduced by
them pursuant to the reservations they made in the stipulation of facts are as follows:
I. Per stipulation of facts: 3
1. On January 8, 1958, petitioner was appointed by then Cebu City Mayor, Ramon Duterte, as
driver, Motorized Division of the Cebu Police Department, with a yearly compensation of
P1,440.00, as shown by a true copy of his appointment hereto attached and marked Annex "A";
2. On January 8, 1960, petitioner was issued another appointment as "driver" of the Cebu Police
Department, at an increased yearly compensation at P1,560.00, a true copy of which is hereto
attached and marked Annex "A-1";
3 On December 21, 1961, petitioner was issued another appointment by then Cebu City Mayor
Carlos J. Cuizon as "Driver, Civilian Employee" of the Cebu Police Department at the increased
yearly compensation of P1,920.00 a true copy of which is hereto attached and marked as Annex
"A-2";
4. On November 7, 1963, petitioner was extended an appointment as "driver (Radio Patrol)
Civilian Employee" of the Cebu Police Department at the increased yearly compensation of
P2,040.00, true copy of which is marked as Annex "A-3";
5 On April 14, 1964, petitioner was removed from his position in the Cebu Police Department
without prior investigation or hearing, the termination having been made in a letter of dismissal
quoted as follows:
REPUBLIC OF THE PHILIPPINES
CITY OF CEBU
Office of the Mayor
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Mr. Deogracias A. Regis, Jr.
Driver, Cebu Police Department
Cebu City

Sir:
There being no more need for your service as Driver in the Cebu Police Department, your
provisional appointment thereto is hereby terminated effective April 16, 1964. Please turn over
any government property that may have been issued to you to the proper property custodian
and have yourself cleared of any accountability during the period of your service.
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6. Petitioner is a civil service eligible, having passed the patrolman and/or detective (qualified)
civil service examination on July 20, 1963 with a rating of 76.85% as shown in the attached copy
of "Report of Ratings" marked Annex "B";
7. Petitioner is a fourth year student in the College of Liberal Arts in the University of the Visayas
as shown by the attached certification marked Annex "C";
8. The position of the petitioner, after his removal, was filled up by the respondent City Mayor
with the appointment of Eduardo Gabiana, a non-civil service eligible as shown in his
appointment hereto attached and marked Annex "D";
9. On August 20, 1964, after his removal, the petitioner addressed similarly worded letters to the
President of the Philippines and the Civil Service Commissioner, hereto attached as Annexes
"E" and "E-1", protesting and appealing his unlawful removal and demanding his reinstatement.
Under date of September 4, 1964, the Executive Secretary to the President indorsed the abovementioned letter to the Commissioner of Civil Service, as shown in the first indorsement hereto
attached as Annex "E-2". Since the filing of the instant action, the petitioner has not been
afforded the relief of reinstatement by either the Office of the President of the Philippines or by
the Civil Service Commissioner.
Parties, however, will submit evidence to establish facts not herein stipulated.
Cebu City, August 20, 1965.
(SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN
(T) FERNANDO S. RUIZ (T) JOSE BATIQUIN
Attorney for the Assistant City Fiscal
Petitioner Counsel for the
2nd Floor, Aboitiz Respondents
Building Cebu City

Magallanes corner
Jakosalem
Cebu City

II. Per additional evidence formally adduced during the hearing:

10. Petitioner received his civil service eligibility for patrolman-detective on 8 March 1964, a
photostatic of which was filed, for record purposes, with the clerk in charge of the record section
of the CPD on 12 March 1964 (Exhs. "F", "F-1"); his efficiency rating is 88%, the highest among
the drivers of the CPD he is the only civil service eligible among the drivers in the CPD; after his
ouster, the City of Cebu created positions of drivers; and he attributed his ouster to politics,
alleging that he was being suspected as a supporter of the faction of then Congressman
Durano, the political rival of respondent Mayor Osmea; 4 and
11. The records of the Regional Office of the Civil Service Commission in Cebu City do not show
that petitioner possesses any civil service eligibility at the time he was appointed as driver. 5

This Court further observes that the actions of the Civil Service Commission on the
appointments of petitioner admitted in the Stipulation of Facts and attached thereto as
Annexes "A", "A-1", "A-2" and "A-3" were as follows:
1. Appointment dated 8 January 1958 Noted as temporary pending receipt of
the required medical certificate, subject to availability of funds and provided that
there is no pending administrative or criminal case against appointee and that
the separation of the former incumbent is in order;
2. Appointment dated 8 January 1960 Approved under Section 24(c) or R.A.
No. 2260 as an exception to Section 256 of the Revised Administrative Code,
and subject to availability of funds;
3. Appointment dated 21 December 1961 Approved under Section 24(c) of
R.A. No. 2260, subject to availability of funds and as exceptional case under
Sec. 256 of the Revised Administrative Code, provided there is no pending
administrative or criminal case against the appointee and provided that his
efficiency rating for the semester ending 6-30-61 is not below 85%; and
4. Appointment dated 7 November 1963Approved under Section 24(c) of R.A.
No. 2260, subject to availability of funds and subject to Section 20 of R.A. No.
2260, provided there is no pending administrative or criminal case against the
appointee.
The last three appointments were for salary adjustments.
In its Decision of 28 December 1965, the court below dismissed the petition on the ground
that petitioner's questioned appointment was temporary in nature and, therefore, terminable
at the pleasure of the appointing power. Expounding on this, it says:
xxx xxx xxx

As for the first issue the answer is that his status at the time of his ouster on April 16, 1964 was
that of temporary driver of the CPD. His appointments on January 8, 1958, January 8, 1960,
December 21, 1961 and on November 7, 1963 were all temporary in nature. It is true that on
March 5, 1964 the Civil Service Commission certified to his having passed the
patrolman/detective civil service examination with a rating of 75.85%, but said examination is not
intended for or appropriate to, the position of driver; hence, it did not convert his temporary
status of driver to a permanent one. (Sec. 8, Rule IV, Civil Service Rules.) Then again, the mere
certification of the Civil Service Commission of his civil service eligibility for patrolman/detective
did not amount to his appointment. The appointing power, the City Mayor, has the right of choice
which he may exercise freely according to his judgment, deciding for himself who is best
qualified for any competitive position in the Civil Service. The Civil Service Commission does not
ensure any appointment; it only certifies an eligible to be possessed of the qualification, as
required for a position classified under its rules. (Jimenez vs. General Francisco, etc., et al.,
G.R. No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug. 15, 1957, p. 4804.)
The appointment of the petitioner being temporary or provisional in nature, the duration of
temporary appointment should not exceed six months. (Sec. 24, Rep. Act 226.) After the
expiration of said period, petitioner could have been removed at will by the appointment power;
his continuance thereafter as a temporary employee was only an extension of grace. (Jimenez
vs. General Francisco, etc., et al., supra.)
Temporary appointment is similar to one made in an acting capacity, the essence of which lies
in its temporary character and its terminability at pleasure by the appointing power. And one who
bears such an appointment cannot complain if it is terminated at a moment's notice. (Cuadra vs.
Cordova, G.R. No. L-11602, April 21, 1958; Vol. 54 O.G. Dec. 8, 1958, p. 8063.) 6

Hence, this appeal.

In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition. 7
In support thereof he argues that his removal on the ground that there was "no more need for
your service" was not real and true but a mere pretext, for after his ouster one Eduardo
Gabiana, a non-civil service eligible, was appointed to the vacated position and in the
succeeding budget of the City of Cebu more positions of driver were created; at the time of
his ouster he was already a civil service eligible, having passed the patrolman-detective
(qualifying) civil service examination given in July of 1963, and respondents knew of this fact.
Moreover, said removal was not for cause, and it was done without due process in violation of
Section 32 of R.A. No. 2260 which provides that 44 no officer or employee in the civil service
shall be removed or suspended except for cause provided by law and after due process."
Petitioner further argues that his last appointment of 7 November 1963 was approved under
Section 24(c) of R.A. No. 2260; therefore, it was a provisional and not a temporary
appointment as erroneously classified by the court a quo. Republic Act No. 2260 makes a
distinction between provisional and temporary appointments. The former is governed by
Section 24(c) while the latter is covered by Section 24(d) thereof. According to him, his
appointment was provisional because at the time it was extended he was not yet a civil
service eligible. He was still awaiting for the results of the examination for patrolman-detective
(qualifying) given by the Civil Service Commission in July of 1963; however, he received his
report of rating on 8 March 1963 indicating that he passed it; consequently, instead of
dismissing him, the City Mayor should have extended to him a permanent appointment
inasmuch as he had already become a civil service eligible. In short, he claims that his

patrolman-detective eligibility is appropriate to his position considering the nature of his office
prior to his removal which authorized him to wear the uniform and badge of a regular member
of the Cebu Police Department, carry an official firearm, wear an ID as a regular member of
the city police, and to make arrests.
Finally, petitioner submits that as member of the Cebu City Police at the time of his removal,
his separation from the service could only be done under R.A. No. 557 under which the City
Mayor can only prefer charges but cannot remove.
Respondents filed their Brief after the expiration of the reglementary period. Upon motion of
petitioner dated 29 March 1967 8 this Court ordered their brief stricken off the record. 9
We agree with the petitioner that the trial court erred in holding that his appointment is
temporary in nature. Obviously, the trial court failed to appreciate the clear distinction
between a temporary appointment and a provisional appointment. It had either confused one
for the other or considered one as synonymous with the other as shown in the opening
sentence of the first paragraph of the portions of the decision hereinbefore quoted wherein it
categorized the appointment of petitioner as "temporary or provisional in nature."
As correctly stated by petitioner, provisional appointments are governed by paragraph (c) of
Section 24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of
said Section. For convenience We quote both paragraphs:
xxx xxx xxx
(c) Provisional appointments A provisional appointment may be issued upon prior
authorization of the Commissioner in accordance with the provisions of the Act and the rules
and standards promulgated in pursuance thereto to a person who has not qualified in an
appropriate examination but who otherwise meets the requirements for appointment to a regular
position in the competitive service, whenever a vacancy occurs and the filling thereof is
necessary in the interest of the service and there is no appropriate register of eligibles at the
time of appointment.
(d) Temporary appointment. A person may receive a temporary appointment to a position
needed only for a limited period not exceeding six months, provided that a preference in filling
such position be given to persons on appropriate eligible lists.

In Festejo vs. Barreras, et al., L-25074, 27 December 1969,

a provisional appointment and temporary appointment thus:

10

We made a distinction between

xxx xxx xxx

There is no basis nor logic in appellants' contention that there is no difference between a
temporary appointment under Section 24(d) of the Civil Service Act which reads thus:
Temporary Appointment. A person may receive a temporary appointment to
a position needed only for a limited period not exceeding six months, provided
that preference in filing such position be given to persons on appropriate eligible
lists.
and a provisional appointment under Section 24(c) which says:

Provincial appointment. A provisional appointment may be issued upon the

prior authorization of the Commissioner in accordance with the provisions of this
Act and the rules and standards promulgated in pursuance thereto to a person
who has not qualified in an appropriate examination but who otherwise meets
the requirements for appointment to a regular position in the competitive
service, whenever a vacancy occurs and the filling thereof is necessary in the
interest of the service and there is no appropriate register of eligibles at the time
of appointment.
According to appellants, "while they may be different in the degree of permanence, in that
temporary appointments are generally for and within specified periods of time, their nature as
being subject to termination by the appointing power remains the same." Such contention
petition is untenable.
Even from a cursory reading of these two provisions, one can readily see that each of them
contemplates an entirely different situation from the other. Indeed, as pointed out by His Honor,
the trial judge, it is contrary to the ordinary rules of legal hermeneutics to assume that the
lawmakers intended these two separate provisions in a seemingly single enumeration of
categories of appointments to have the same import or significance. Whereas a temporary
appointment is designed to fill "a position needed only for a limited period not exceeding six
months, a provisional appointment, on the other hand, is intended for the contingency that "a
vacancy occurs and the filling thereof is necessary in the interest of the service and there is no
appropriate register of eligibles at the time of appointment." In other words, the reason for
extending a provisional appointment is not because there is an occasional work or job to be
done which is expected to be finished in not more than six months but because the interest of
the service requires that certain work be done or functions be performed by a regular employee,
only that there is no one with appropriate eligibility, who can be appointed to do it, hence any
other eligible may be appointed to perform such work or functions in the meanwhile that a
suitable eligible does not qualify for the position. This is clearly implied by the mandate of the
provision that a provisional appointment may be extended only to "a person who has not
qualified in an appropriate examination but who otherwise meets the requirements for
appointment to a regular position in the competitive service," meaning one who must anyway be
a civil service eligible. On the other hand, again, in the case of a temporary appointment, all that
the law enjoins is that "preference in filling such position be given to persons on appropriate
eligible lists." And merely giving preference, of course, presupposes that even a non-eligible
may be appointed. As a matter of fact, under this provision, even if the appointee has the
required civil service eligibility, his appointment is still temporary, simply because such is the
nature of the work to be done. The decisions cited by appellants are not in point. They all refer
to temporary appointments as such. None of them involves a provisional appointment like the
one herein in question.

In Ata, et al. vs. Namocatcat, et al., L-39703, 30 October 1972, 11 We further elaborated on the
distinction:
. . . A provisional appointment is one which may be issued, upon the prior authorization of the
Commissioner of Civil Service in accordance with the provisions of the Civil Service Law and the
rules and standards promulgated thereunder, to a person who has not qualified in an
appropriate examination but who otherwise meets the requirements for appointment to a regular
position in the competitive service, whenever a vacancy occurs and the filling thereof is
necessary in the interest of the service and there is no appropriate register of eligibles at the
time of appointment (Sec. 24(c), supra). On the other hand, a temporary appointment given to a
non-civil service eligible is without a definite tenure of office and is dependent upon the pleasure
of the appointing power." (Citing Cuadra vs. Cordova, 103 Phil. 391; Pinullar vs. President of the
Senate, 104 Phil. 131, 135).

As early as Piero, et al. vs. Hechanova, et al., L-22562, 22 October 1966, 12 We held:

. . . Even in the case of those holding provisional or probationary appointments . . . the invalidity
thereof can not be declared unless it is first shown that there were appropriate eligibles at the
time they were appointed . . .

In Ferrer vs. Hechanova, L-24416, 25 January 1967, 13 We held:

. . . A provisional appointment is good only until replacement by a civil service eligible and in no
case beyond thirty (30) days from the date of receipt by the appointing officer of the certificate of
eligibility (Sec. 24(c), R.A. 2260; Rule VI, Secs. 13 and 14, Revised Civil Service Rules; Piero
vs. Hechanova, supra).

In Ramos vs. Subido, L-26090, September 6, 1967,

14

We ruled:

The position in question is under the classified service; Ramos accepted Ms latest appointment
thereto, dated July 1, 1963, without having the requisite appropriate civil service eligibility for
said position. Accordingly, his appointment can only be deemed provisional and good only until
replacement by one holding such appropriate eligibility, in no case to extend more than thirty
days from receipt of the appointing officer of the list of eligibles (Ferrer vs. Hechanova, L-24418,
January 25, 1967).

In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July

1971, 15 We affirmed the decision of the trial court holding that provisional appointments under
Sec. 24(c) of R.A. No. 2260 can only by terminated thirty days after receipt by the appointing
power of a list of eligibles from the Civil Service Commission.
In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972, 16 We reiterated our rulings in
Piero vs. Hechanova, Ferrer vs. Hechanova, and Ramos vs. Subido.
Accordingly, since there was no certificate of civil service eligibility received by respondent
City Mayor, the provisional appointment of petitioner remained valid and subsisting. Prior to
such receipt petitioner may only be removed for cause as provided by law under Section 32 of
R.A. No. 2260. That there was "no more need" for his service was not a valid and lawful
cause and even if it were so, it could not be availed of in this case since, as admitted by the
parties, immediately after the ouster a non-civil service eligible was appointed to replace
petitioner and more driver positions were included in the succeeding budget of the City of
Cebu. These facts negated the pretended basis for the dismissal. The real hidden cause was
not that service of the nature and character rendered by petitioner was no longer needed, but
that petitioner had become unacceptable to the appointing authority. Petitioner testified that
his removal was politically motivated, he was suspected of supporting the faction of Mr.
Durano, a political enemy of respondent City Mayor. We are not inclined to give full faith and
credit to this testimony considering that this point was not even alleged in the petition.
We agree, however, with the court below that the patrolman-detective civil service eligibility of
petitioner "is not intended for or appropriate to the position of driver; hence, it did not convert
his temporary [should be, correctly, provisional] appointment of driver to a permanent one
(Sec. 8, Rule IV, Civil Service Rules)."
Section 8, Rule IV of the Civil Service Rules provides:
xxx xxx xxx

Except as otherwise provided by law, eligibility in a certain examination shall serve as

qualification for appointment only to the position or positions for which examination was held and
no horizontal or vertical conversion of eligibility or examination rating shall be allowed.
xxx xxx xxx

In Police Commission vs. Lood, et al., L-34637, 24 February 1984,

17

We ruled:

Under the civil service law then in force, the fact that private respondent subsequently became a
civil service eligible did not ipso facto render permanent the nature of his temporary appointment
as to make the question moot and academic.

Although this case refers to a temporary appointment, the rule laid down equally applies to a
provisional appointment.
This matter, however, had been subsequently categorically resolved in favor of holders of
provisional appointments by R.A. No. 6040, which took effect on 4 August 1969. Section 18
thereof provides:
. . . all provisional appointments made or appointments approved by the Civil Service
Commission under Section 24(C) of Republic Act Numbered Two thousand two hundred sixty
prior to the approval of this Act shall automatically be permanent under the provisions of Section
twenty-four (b) thereof as amended by this Act, subject to the provisions of Section 16(h) of said
Act as herein amended. (emphasis supplied).

Pursuant thereto, petitioner's provisional appointment of 7 November 1963 automatically

became permanent effective 4 August 1969.
We therefore rule that petitioner's dismissal was illegal and that he should be reinstated.
He should also be granted back salaries.
However, the award for back salaries should not be from the date of his dismissal until
reinstatement. In similar cases, We limited the award for a period of five (5) years. 18
In Ginson vs. Municipality of Murcia, et al., We ruled:
Considering however, the lapse of time spanning almost twenty yearssince this controversy
rose, and considering the probability that the petitioner might have, in the interim, acquired a
new employment, we are constrained to grant her the payment of back salaries equivalent to
five (5) years without deduction or qualification. (Citing Laganapan vs. Asedillo, supra).
We likewise order her reinstatement, subject to the condition that she has not obtained any
other employment in Murcia municipal dentist or any position for which she is qualified by
reason of civil service eligibility and subject to the requisites of age and physical fitness. . . .

As to who of the respondents should pay the back salaries, We rule that only respondent City
of Cebu should be liable therefor. Respondent City of Cebu did not oppose the dismissal of
petitioner and the appointment in his stead of another whose salaries it thereafter paid. All
respondents were represented by the Assistant City Fiscal of Cebu City and interposed the
same defenses. 19 Moreover, after respondent Mayor Osmea vacated his office his

successor, Carlos J. Cuizon, without the objection on the part of the City of Cebu, filed a
manifestation in the court below to the effect that he adopted the position of his predecessor,
Mayor Osmea, in respect to the course of action taken against petitioner 20 In short,
respondent City of Cebu confirmed or ratified the action of the Mayor.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the Decision
appealed from the ORDERING the respondent City of Cebu to (a) reinstate petitioner, subject
to the condition that he has not obtained any other employment, to his position under his
appointment of 7 November 1963, or to any position of equivalent rank, or for which he is
qualified by reason of civil service eligibility and subject to the requisites of age and physical
fitness, (b) pay petitioner back salaries, at the rate last received by him, for a period of five (5)
years without qualification and deduction and with interest at the legal rate from the date of
his illegal dismissal until the same shall have been fully paid, and (c) pay the costs.
SO ORDERED.
Regis Jr. v. Osmea Jr. et. al.Facts: On January 8, 1958, Deogracias Regis Jr. was appointed by then
Cebu City Mayor, RamonDuterte, as driver, Motorized Division of the Cebu Police Department. On
January 8, 1960, Regiswas issued another appointment. On December 21, 1961, Regis was issued
another appointmentby then Cebu City Mayor Carlos J. Cuizon as "Driver, Civilian
Employee" of the Cebu Police. OnN o v e m b e r 7 , 1 9 6 3 , R e g i s w a s e x t e n d e d a n
a p p o i n t m e n t a s " d r i v e r ( R a d i o P a t r o l ) C i v i l i a n Employee" of the Cebu Police. On
April 14, 1964, Regis was removed from his position in theCebu Police Department
without prior investigation or hearing, the terminatio n having beenmade in a letter of
dismissal. Regis is a civil service eligible, having passed the patrolman and/ordetective (qualified)
civil service examination on July 20, 1963 with a rating of 76.85% He is l i k e w i s e a
fourth year student in the College of Liberal Arts in the University of the
V i s a y a s . Regis position after his removal, was filled up by the Mayor Osmea Jr. with the
appointment of E d u a r d o G a b i a n a , a n o n - c i v i l s e r v i c e e l i g i b l e . O n A u g u s t 2 0 , 1 9 6 4 ,
after his removal, Regisaddressed similarly worded letters to the President of
t h e P h i l i p p i n e s a n d t h e C i v i l S e r v i c e Commissioner protesting and appealing his unlawful
removal and demanding his reinstatement.Under date of September 4, 1964, the Executive Secretary
indorsed the above-mentioned letterto the Commissioner of Civil Service but his protest was
not acted upon. Regis attributed hisouster to politics, alleging that he was being
suspected as a supporter of the faction of thenCongre ssman Durano, the political rival of
respondent Mayor Osmea and the records of the Regional Office of the Civil Service
Commission in Cebu City do not show that Regis possesses any civil service eligibility at the
time he was appointed as driver. Regis filed an action before theRTC against Osmena et. al to compel
them to reinstate him to his former position. RTC dismissedthe complaint on the ground that his
appointment was merely temporary thus terminable at thepleasure of appointing power.Issue: Whether
the RTC erred in dismissing the caseH e l d : Y e s . T h e t r i a l c o u r t e r r e d i n h o l d i n g
that his appointment is temporary in nature.Obviously, the trial court
failed to appreciate the clear distinction between a
temporaryappointment and a provisional appointment. It had either
c o n f u s e d o n e f o r t h e o t h e r o r considered one as synonymous with the other
as shown in the opening sentence of the firstpar agraph of the portions of the
d e c i s i o n h e r e i n b e f o r e q u o t e d w h e r e i n i t c a t e g o r i z e d t h e appointment of petitioner
as "temporary or provisional in nature." Here, Regis appointment is provisional not

temporary.In
Festejo vs. Barreras, et al
. , t h e C o u r t m a d e a d i s t i n c t i o n b e t w e e n a p r o v i s i o n a l appointment and
temporary appointment. A temporary appointment is designed to fill "a positionneeded only for a
limited period not exceeding six months, a provisional appointment, on the o t h e r h a n d ,
is intended for the contingency that "a vacancy occurs and the filling thereof
i s necessary in the interest of the service and there is no appropriate register of eligibles
at thetime of appointment." In other words, the reason for extending a provisional appointment is
notbecause there is an occasional work or job to be done which is expected to be finished
in notmore than six months but because the interest of the service requires that certain work be doneor
functions be performed by a regular employee, only that there is no one with
appropriateeligibility, who can be appointed to do it, hence any other eligible may be appointed to
performsuch work or functions in the meanwhile that a suitable eligible does not qualify for the
position. This is clearly implied by the mandate of the provision that a provisional
appointment may bee x t e n d e d o n l y t o " a p e r s o n w h o h a s n o t q u a l i f i e d i n a n
a p p r o p r i a t e e x a m i n a t i o n b u t w h o otherwise meets the requirements for
a p p o i n t m e n t t o a r e g u l a r p o s i t i o n i n t h e c o m p e t i t i v e service," meaning one who must
anyway be a civil service eligible. On the other hand, again, inthe case of a temporary
appointment, all that the law enjoins is that "preference in filling such p o s i t i o n b e g i v e n
to persons on appropriate eligible lists." And merely giving preference,
o f course, presupposes that even a non-eligible may be appointed. As a matter of fact,
under thisprovision, even if the appointee has the required civil service eligibility, his
appointment is stilltemporary, simply because such is the nature of the work to be done.
The decisions cited by
appellants are not in point. They all refer to temporary appointments as such. None of
theminvolves a provisional appointment like the one herein in question.In
Ata
,
et al
.
vs
.
Namocatcat
,
et al
., the Court further elaborated on the distinction bysayin g that a provisional appointment
is one which may be issued, upon the prior authorizat ionof the Commissioner of Civil
Service in accordance with the provisions of the Civil Service Lawand the rules and
standards promulgated thereunder, to a person who has not qualified in an appropriate
examination but who otherwise meets the requirements for appointment to a regularp o s i t i o n i n
the competitive service, whenever a vacancy occurs and the filling
t h e r e o f i s necessary in the interest of the service and there is no appropriate register of
eligibles at thetime of appointment. On the other hand, a temporary appointment given to
a non-civil servicee l i g i b l e i s w i t h o u t a d e f i n i t e t e n u r e o f o f f i c e a n d i s
d e p e n d e n t u p o n t h e p l e a s u r e o f t h e appointing power. R.A. No. 6040, which
t o o k e f f e c t o n 4 A u g u s t 1 9 6 9 . S e c t i o n 1 8 t h e r e o f provides that
all provisional appointments

made or appointments approved by the Civil ServiceCommission under Section 24(C) of

Republic Act Numbered Two thousand two hundred sixty prior to the approval of this Act
shall automatically be permanent under the provisions of Sectiontwenty-four (b) thereof as amended by
this Act
, subject to the provisions of Section 16(h) of saidAct as herein amended. Pursuant thereto,
petitioner's provisional appointment of 7 November 1963 automatically became permanent
effective 4 August 1969

EN BANC

G.R. Nos. 104216 August 20, 1993

TEODORO B. PANGILINAN, petitioner,
vs.
GUILLERMO T. MAGLAYA, THE EXECUTIVE SECRETARY, SECRETARY OF THE
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, respondents.
Gancayco Law Office and Moncupa, Torio & Malaya Law Offices for petitioner.
The Solicitor General for respondents.

CRUZ, J.:
The petitioner complains that he has been removed from office without due process and just
cause in disregard of his constitutional security of tenure. Worse, his removal was made in
bad faith, immediately after his expose of certain anomalies in which superiors were involved.
Teodoro B. Pangilinan joined the government service on July 18, 1966, when he was
appointed agent in the National Bureau of Investigation, a position for which he had the
appropriate civil service eligibility. He had risen to Supervising Agent when he resigned to
accept appointment as Executive Director of the Land Transportation Office on July 8, 1987.
He assumed office on July 16, 1987.
The petitioner says that from February 19, 1988 to November 30, 1988, he was detailed to
the Manila International Airport Authority, where he served as Assistant General Manager in
charge of finance and administration and also of security and general services.
Upon his return to the LTO, he was designated as Resident Ombudsman in addition to his
regular duties. As such, he discovered, among other anomalies, irregularities in the purchase
of motor vehicle license plates. The license plates ordered were not reflective as required by
P.D. 98 and B.P. 43. He says he brought this matter to the attention of Asst. Secretary
Manuel Sabalza of the Department of Transportation and Communications and later of

Secretary Pete Prado. Neither of them took any action.

On September 27, 1991, the petitioner called a press conference expose what the media later
described as "the license plate mess." He also announced his intention to file graft charges
with the Ombudsman against Prado, Sabalza and Undersecretary Jose Valdecaas, also of
the DOTC.
The following day, Secretary Prado relieved Pangilinan as Executive Director of the LTO and
replaced him with Guillermo Maglaya as officer-in-charge. However, the petitioner continued
receiving his salary (although his allowances were withheld) until December 31, 1991. When
he asked why his pay had been discontinued, he was informed by Asst. Secretary Juan V.
Borra, Jr. that Maglaya had already been designated as Acting Executive Director of the LTO.
In this petition, Pangilinan prays for reinstatement on the ground that no charge has been filed
or proved against him to justify his removal.
Required to comment, the Solicitor General argues that Pangilinan was validly separated
because he was appointed to the disputed position in an acting capacity only. He does not
possess the qualifications prescribed for the office of Executive Director of the LTO, which is
a career executive service position for which only a career executive service official is eligible.
The petitioner is not a career executive service official. Hence, he could not be, and was not
extended a permanent appointment.
The public respondents cite Sec. 5(1) of P.D. 807 which provides that membership in the
career executive service requires:
(i) that the official must be included in the register of career executive eligibles; and
(ii) that the official must have been appointed to an appropriate class in the Career Executive
Service.

Respondent Augusto B. Araneta, who was later designated to replace Maglaya, submitted the
following certification from the Executive Director of the Career Executive Service Board: 1
CERTIFICATION
This is to certify that the position of Executive Director in the Land Transportation Office,
Department of Transportation and Communications is classified as a position belonging to the
Career Executive Service (CES). This is to certify further that per records of the Career
Executive Service Board (CESB), MR. TEODORO B. PANGILINAN, former Executive Director
of said office is not a CES eligible, and was not appointed to a rank in the CES.
This certification is issued upon the request of Atty. Augusto B. Araneta for whatever purpose it
may serve.
(Sgd.) ELMOR D. JURIDICO
Executive Director

The respondents also invoke the case of Achacoso v. Macaraig, 2 where this Court declared:

It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a
moment's notice," conformably to established jurisprudence.
xxx xxx xxx
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place, or, only as an exception to the rule, may be appointed
to it merely in an acting capacity in the absence of appropriate eligibles. The appointment
extended to him cannot be regarded as permanent even if it may be so designated.
The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of
official, functions by authorizing a person to discharge the same pending the selection of a
permanent or another appointee. The person named in an acting capacity accepts the position
under the condition that he shall surrender the office once he is called upon to do so by the
appointing authority.

In his reply Pangilinan submits that the Achacoso case is not applicable because the
petitioner therein was, to begin with, not a civil service eligible. The petitioner say he is,
having passed the board examination for certified public accountants. He also argues that his
appointment must be likened to the provisional appointment under the old Civil Service Act
before it was replaced by P.D. 807. The provisional appointment enjoyed security of tenure.
Pangilinan adds that even on the assumption that his appointment was not permanent, his
separation must still be for a valid cause because Article IX-B, Section 2 (3), of the
Constitution applies to all officers and employees in the civil service without distinction.
Invoking the case of Gray v. De Vera, 3 Pangilinan likens himself to the petitioner therein who
was summarily relieved when, as the board secretary of the People's Homesite and Housing
Corporation, he sent a telegram to the President of the Philippines imputing irregularities to
the directors. His separation also came the following day. Although Gray was holding a
primarily confidential position without any fixed term, this Court ordered his reinstatement. We
held that he had been denied procedural due process and there was no valid cause for his
removal.
Also cited by the petitioner are Cario v. ACCFA, 4 Floreza v. Ongpin 5 and Jocom v. Robredo
(not Regalado), 6 in all of which cases the security of tenure of the dismissed employees was
upheld.
The petitioner raises a new issue, to wit, that even if he were considered only an acting
appointee, he nevertheless could not be replaced except by a person possessing the required
qualifications, as required by PD 807. He has produced certifications, 7 also from the
Executive Director of the Career Executive Service Board, that neither Guillermo T. Maglaya
nor Augusto B. Araneta is a CES eligible or a career executive service officer. He also
argues, belatedly too, that as a presidential appointee, he could be replaced only by the
President of the Philippines and not by only the Secretary of Transportation and

Communications.
As required by the Court, the respondents have submitted a Compliance manifesting that
Juan A. Magarro, Jr., the new appointee to the position of Executive Director of the LTO
(replacing Guillermo Maglaya and Antonio B. Araneta) possesses the prescribed
qualifications for the office. 8
They repeat that the applicable case is Achacoso, not Gray. Gray was extended a permanent
appointment whereas Achacoso, like Pangilinan, could be appointed only in an acting
capacity for lack of the prescribed qualifications for the office.
We must hold for the respondents.
Gray and the other cases cited by the petitioner involved permanent appointees who
therefore had security of tenure. Pangilinan was only an acting appointee because he did not
have the requisite qualifications; as such, he could not claim security of tenure. This Court
has repeatedly held that this guaranty is available only to permanent appointees. 9 The fact
that Pangilinan was qualified for his initial appointment as agent in the NBI does not mean he
was qualified for all other positions he might later occupy in the civil service. The law does not
prescribe uniform qualifications for all public positions regardless of nature or degree.
Although Gray was holding a highly confidential position, the Court regarded his separation as
a removal and so applied the constitutional prohibition against the suspension or dismissal of
an officer or member of the civil service without cause as provided by law. That was rather
loose interpretation of the term "dismissal," which is defined as the ouster of the incumbent
before the expiration of his term. Subsequent decisions have made it clear that where a
person holds his position at the pleasure of a superior or subject to some supervening event,
his separation from office is not a
removal. 10 It is effected by the will of the superior or by the happening of the contingency,
resulting in another and different mode of terminating official relations known as expiration of
the term.
Chief Justice Concepcion explained the distinction between removal and expiration of the
term in Alajar v. Alba 11 thus:
In the case at bar, the term of respondent Alajar as Vice Mayor of the City of Roxas is not fixed
by law. However, the latter, in effect, vests in the President the power to fix such term. When in
November 1955, petitioner Alba was designated as Acting Vice-Mayor of said City, the term of
respondent Alba was, thereby, fixed implicitly by the President, in the exercise of his
aforementioned authority. Thus, the term of office of Alajar expired and his right to hold office
was extinguished, with the same legal effect as if the term had been fixed by Congress itself. In
other words, Alajar was not removed from office, for "to remove an officer is to oust him from
office before the expiration of his term" (Manalang v. Quitonano et al., 50 Off. Gaz., 2515). Alajar
merely lost the right to hold the office of Vice-Mayor of the City of Roxas by expiration of his
term as such.

The petitioner's invocation of the provisional appointment as comparable to his position is a

grasping at straws. The provisional appointment has long been abolished and has no legal
application or effect in this case. There are now only two kinds of appointment under the

Administrative Code of 1987, to wit:

Sec. 27. Employment Statues. Appointment in the career service shall be permanent or
temporary.
(1) Permanent status. A permanent appointment shall be issued to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed, in accordance with the provisions of law, rules and standards promulgated in
pursuance thereof.
(2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary appointment, shall be issued to a person who
meets all the requirements for the position to which he is being appointed except the appropriate
civil service eligibility: Provided, That such temporary appointment shall not exceed twelve
months, but the appointee may be replaced sooner if a qualified civil service eligible becomes
available.

Strictly speaking, the petitioner's temporary appointment as Executive Director of the LTO
should have ended twelve months after he assumed office, or on July 16, 1988. From that
date, his appointment had ceased to be valid even if a qualified replacement was not yet
available and consequently had to be discontinued pursuant to the above-quoted provision.
Indeed, even on the assumption that his appointment could be and had been validly extended
beyond the one-year limit, that extended term was nevertheless validly terminated with the
appointment of his qualified replacement.
The petitioner's contention that he could not be relieved by Secretary Prado but only by the
President of the Philippines is also a shot in the dark. It has long been settled, and does not
require further elaboration here, that the acts of a Department Secretary, when "performed
and promulgated in the regular course of business" are presumptively the acts of the
President unless "disapproved or reprobated" by him. This doctrine dates back to 1939, when
it was First laid down by Justice Laurel in Villena v. Secretary of the Interior, 12 and has been
consistently observed since then. Parenthetically, the petitioner's own appointment to the
disputed position was signed not by President Corazon C. Aquino but by Executive Secretary
Joker P. Arroyo. 13
In view of the foregoing considerations, we hold that Pangilinan has lost the right to the
position of Executive Director of the LTO and so cannot be reinstated therein.
Shall the Court end here? There is more to be said.
It is not difficult to see that the petitioner was replaced because of his expose and his threat to
bring charges against his superiors. His relief was clearly an act of punishment if not personal
vengeance. This is not denied. The respondents, while invoking the law to justify his
separation, have made no effort whatsoever to justify their motives.
In Gray, the Court held that the board secretary, while holding a highly confidential. position,
owed his loyalty not to the board but to the government. In the present case, Pangilinan was
not even holding a similar position. His continued incumbency did not depend upon his
enjoyment of the confidence of his superiors who had no personal claim to his loyalty. In
exposing what he considered the anomalies in the DOTC, he was, like Gray, manifesting his

concern for the government whose interests he wanted to protect.

It would be a sorry day, indeed, if a civil servant could be summarily removed from his
position for the "sin" of complaining about the irregularities of his superiors. This would not
only impair the integrity of the civil service but also undermine the campaign to encourage the
public, including those in the civil service, to expose and denounce venality in government.
Pangilinan's denunciation of the non-reflective license plates we not the act of a rabble-rouser
or a publicity-seeker. The record shows that he quietly brought the matter to the attention of
his superiors, giving reasons for his misgivings. They took no action. Feeling frustrated, he
sought the attention of the media and told them of his objection to the non-reflective license
plates. He cited the laws that he claimed had been violated. He narrated his efforts to prevent
their violation. He spoke of the indifference of his superiors. In doing all these, he was
exercising his right as a citizen, and especially as a civil servant, to denounce official
misconduct and improve the public service.
This is not to say, of course, that Pangilinan's charges are valid. The Court is not prepared to
do so at this time because the evidence on this matter is not before it. For all we know, there
is a satisfactory explanation for the attitude of his superiors; it is possible that it is Pangilinan
who has misinterpreted the law or misread the facts. But true or not, the charges per se, and
standing alone, could not be the basis of Pangilinan's swift and summary replacement.
Pangilinan was separated the day immediately following his press conference. The Court
sees the action as a retaliation. The public respondents say they were merely terminating his
incumbency in accordance with existing law. The Court sees that termination as a
punishment.
Under the expanded definition of judicial power in Article VIII, Section 1, of the Constitution,
the Court can declare the acts of the public respondents as tainted with grave abuse of
discretion and therefore invalid.
But it is not as simple as that. The obstinate fact is that, regardless of the motives of his
superiors, Pangilinan no longer had any right to the disputed position when he was separated
from it in 1991. He ceased to be entitled to it in 1988 upon the lapse of the maximum period
for his acting appointment. Obviously, he is not entitled to it now. Even if it be supposed that
the public respondents acted maliciously when they relieved him in 1991, his reinstatement is
still not possible under the law as it now stands.
The petitioner warns that the dismissal of his petition would open the door to the summary
separation of civil servants to the prejudice of the integrity and independence of the civil
service. He claims that "there are about 2,067 CESO positions in the entire Philippine civil
service. Of this number only 372 or about 18% are occupied by Career Executive Service
eligibles." 14 The rest may be summarily separated as acting appointees and are therefore
subject to the whims of their superiors. He suggests that "a ruling by this Honorable Court that
would sustain the position of petitioner would go a long way toward the upliftment of the
morale of the 'ineligibles.'"

Assuming that the petitioner's statistics are correct, the Court can only share his trepidation.
We can do no more. As judges, we can only interpret and apply the law and, despite our
doubts about its wisdom, cannot repeal or amend it. In the case at bar, we have no power to
give the petitioner the qualifications he does not possess. Qualifications for public officers are
prescribed by the Constitution or the law, or even by implementing regulations, but not by the
decisions of courts.
The problem posed by the petitioner is a serious threat to the integrity and independence of
the civil service. As demonstrated in this case, the doctrine announced in Achacoso may be
used to muzzle and punish legitimate complaint and even to persecute "difficult"
subordinates. That doctrine, let it be stressed, is only an interpretation and application by the
Court of the law as enacted by the legislative and implemented by the executive. That
doctrine can change only if the laws and regulations on which it was based are also changed,
not by this Court but by the political departments.
In Javier v. Commission on Elections, 15 we said:
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of
the government. The citizen comes to us in quest of law but we must also give him justice. The
two are not always the same.

Indeed they are not, and sadly so for the petitioner. For ironically, the law he invokes for the
protection of his right has instead denied him the justice he seeks and deserves. This
emphasizes, no less sadly, the fallacy that for every legal wrong there is a judicial remedy.
Untrue, unfortunately. The Court is not a panacea. There are times, regrettably, when justice
is shackled by the law, and even this Court cannot break the chains.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Narvasa C.J., Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Nocon,
Bellosillo, Melo Quiason and Vitug, JJ., concur.

Separate Opinions

PUNO, J., dissenting:

The ponencia lucidly states the facts. Petitioner joined the government service in 1966 as an
agent of the National Bureau of Investigation. He served the NBI for about twenty (20) years

and slowly rose to the position of Supervising Agent. After the EDSA revolution, he was
appointed as Executive Director of the Land Transportation Office on July 8, 1987, by then
Executive Secretary Joker Arroyo. In addition, he was designated as its Resident
Ombudsman.
It was when petitioner seriously took his job as Resident Ombudsman that he got into
problems. He unearthed court corruptions in his office, including the notorious purchase of
motor vehicle non-reflective license plates. Feeling he will get the attentive ear of his
superiors, he called their attention to the stinking mess. He was given the sphinx treatment.
Petitioner, however, was the crusading kind. He did not give up and on September 27, 1991,
he called a press conference and blew the whistle on what the press denounced as the
license plate mess. He threatened to file graft charges against his own superiors: Secretary
Pete Nicomedes Prado, Undersecretary Jose Valdecanas and Asst. Secretary Manuel
Sabalza of the Department of Transportation and Communications. The retaliation against
petitioner was, however, swift and severe. The day after his expose, he was unceremoniously
relieved by Secretary Prado who designated Atty. Guillermo Maglaya as officer-in-charge of
the office. Petitioner was merely allowed to receive his salary but minus allowances but even
that privilege was to last only until December 31, 1991. Thereafter, even his salary was
stopped and he was informed that Atty. Maglaya has already been designated as Acting
Executive Director of the LTO.
Haste breeds errors. In their desire to eliminate petitioner at once, respondents filled up his
position with ineligibles. Atty. Maglaya turned out to be not a "CES eligible" nor a "Career
Service Executive Officer." He was changed by Augusto B. Araneta, Jr., who was no better.
Araneta was also neither a "CES eligible" nor a "Career Service Executive Officer." The
search for a qualified person ended with the appointment of Juan A. Magano to the same
position. Rightfully, the ponencia branded the termination of petitioner as a "punishment".
Regrettably, however, it dismissed the petitioner on the ground that as an acting official with
no eligibility, petitioner has no right to security of tenure.
With due deference, it is my submittal that the ponencia has unduly focused on the lack of
security of tenure of the petitioner. To my mind, however, the issue is whether the petitioner
has been the subject of intentional, malicious and wrongful acts which ought to be proscribed.
If the petitioner is such a victim, it is not material that he does not enjoy security of tenure.
The end-result of the ponencia is unfortunate for it offers no succor to a public official who
was wantonly terminated from office not for doing bad but ironically for doing good to the
government. Here is petitioner who could well be a role model for other government officials.
He faithfully discharged his duties as Acting Executive Director of the LTO. As its resident
ombudsman, he displayed rare courage by exposing in public and in print the license plate
mess allegedly involving no less than his top superior, former Secretary Prado. While
promoting honesty and integrity in the public service, petitioner was stopped, divested of his
office using as convenient cover his status as a temporary official. The result is undoubtedly
inequitous, yet the ponencia posits the disquieting proposition that this is a case "when justice
is shacked by the law even this Court cannot break the chains."
It is my humble submission that these shackles are more of straws which this Court can break
off. For even granting that petitioner is merely an acting Executive Officer of the LTO, he
enjoys certain rights which cannot be violated because they are protected by the laws of the

land. For instance, even as an acting official he cannot be denied his constitutional right to
due process and equal protection of the laws and his statutory right to be treated with justice,
honesty and good faith by his superior officials. These protected rights were in no way waived
or diminished by his acceptance of a government job in an acting or temporary capacity.
There is no law that gives a license to abuse a government official just because he has no
security of tenure. When such injustices and abuses are perpetrated, said official has a right
to their immediate abatement and it is the unavoidable duty of this Court to check-off their
continuance. In taking this suggested stance, this Court will not be ruling that petitioner has
security of tenure to his office for it is conceded that the law grants him none. The ruling
merely recognizes the right of petitioner to be protected from certain illegal acts even if he is
an acting official; it will go no further than to hold that the temporary nature of one's
employment cannot be misused to frustrate good government. If the annulment of the illegal
acts will lead to petitioner's reinstatement for a short while, the benefit is incidental and ought
to be allowed. Again, his reinstatement is not a recognition of his irremovability for he may
later be terminated in accordance with law.
With due respect, I shudder at the mischiefs that may flow from the ponencia. Appointments
in acting capacity may be preferred to be extended by the unscrupulous for they know that
they possess the sword of Damocles over these kind of appointees as they can be removed
under the pretext that they have no security of tenure. The making of this mischief could not
have been intended by our civil service laws, rules and regulations. It is self-evident that these
civil service laws, rules and regulations that classify government officials into permanent and
temporary have one objective and that is, the promotion of good government. To interpret
them in a manner that will not enhance our efforts to establish good government is to ignore
this noble intent.
In order to vindicate the right of the petitioner, I do not consider the later appointment of Juan
Magano as an insuperable obstacle. It is evident that this appointment is part of the malicious
machination to remove petitioner by fair and foul method. The malice of respondents exhibit
itself when they relieved petitioner on the pretense he has no eligibility and yet recklessly
appointed to the same position, Messrs. Maglaya and Araneta, who were equally ineligible. It
is plain that they removed petitioner not to strengthen the civil service with better qualified
officials but to perpetrate an act of vendetta. When they realized their recklessness, they
appointed Magano to legalize the illegal. I submit that Magano cannot profit from the fruits of
this crude cover-up.
In sum, I vote to grant the petition and to annul the dismissal of petitioner because it will
enhance the State policy "to maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption (Art. II, sec. 221 the
Constitution); it will give more life to the postulate that a public office is a public trust. Public
officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice" (Art XI,
sec. 1 of the Constitution); and hopefully, it will frustrate the misuse of our civil service rule on
security of tenure to promote bad government.
Romero, J., concurs.

Separate Opinions

PUNO, J., dissenting:

The ponencia lucidly states the facts. Petitioner joined the government service in 1966 as an
agent of the National Bureau of Investigation. He served the NBI for about twenty (20) years
and slowly rose to the position of Supervising Agent. After the EDSA revolution, he was
appointed as Executive Director of the Land Transportation Office on July 8, 1987, by then
Executive Secretary Joker Arroyo. In addition, he was designated as its Resident
Ombudsman.
It was when petitioner seriously took his job as Resident Ombudsman that he got into
problems. He unearthed court corruptions in his office, including the notorious purchase of
motor vehicle non-reflective license plates. Feeling he will get the attentive ear of his
superiors, he called their attention to the stinking mess. He was given the sphinx treatment.
Petitioner, however, was the crusading kind. He did not give up and on September 27, 1991,
he called a press conference and blew the whistle on what the press denounced as the
license plate mess. He threatened to file graft charges against his own superiors: Secretary
Pete Nicomedes Prado, Undersecretary Jose Valdecanas and Asst. Secretary Manuel
Sabalza of the Department of Transportation and Communications. The retaliation against
petitioner was, however, swift and severe. The day after his expose, he was unceremoniously
relieved by Secretary Prado who designated Atty. Guillermo Maglaya as officer-in-charge of
the office. Petitioner was merely allowed to receive his salary but minus allowances but even
that privilege was to last only until December 31, 1991. Thereafter, even his salary was
stopped and he was informed that Atty. Maglaya has already been designated as Acting
Executive Director of the LTO.
Haste breeds errors. In their desire to eliminate petitioner at once, respondents filled up his
position with ineligibles. Atty. Maglaya turned out to be not a "CES eligible" nor a "Career
Service Executive Officer." He was changed by Augusto B. Araneta, Jr., who was no better.
Araneta was also neither a "CES eligible" nor a "Career Service Executive Officer." The
search for a qualified person ended with the appointment of Juan A. Magano to the same
position. Rightfully, the ponencia branded the termination of petitioner as a "punishment".
Regrettably, however, it dismissed the petitioner on the ground that as an acting official with
no eligibility, petitioner has no right to security of tenure.
With due deference, it is my submittal that the ponencia has unduly focused on the lack of
security of tenure of the petitioner. To my mind, however, the issue is whether the petitioner
has been the subject of intentional, malicious and wrongful acts which ought to be proscribed.
If the petitioner is such a victim, it is not material that he does not enjoy security of tenure.
The end-result of the ponencia is unfortunate for it offers no succor to a public official who
was wantonly terminated from office not for doing bad but ironically for doing good to the
government. Here is petitioner who could well be a role model for other government officials.
He faithfully discharged his duties as Acting Executive Director of the LTO. As its resident
ombudsman, he displayed rare courage by exposing in public and in print the license plate
mess allegedly involving no less than his top superior, former Secretary Prado. While
promoting honesty and integrity in the public service, petitioner was stopped, divested of his
office using as convenient cover his status as a temporary official. The result is undoubtedly

inequitous, yet the ponencia posits the disquieting proposition that this is a case "when justice
is shacked by the law even this Court cannot break the chains."
It is my humble submission that these shackles are more of straws which this Court can break
off. For even granting that petitioner is merely an acting Executive Officer of the LTO, he
enjoys certain rights which cannot be violated because they are protected by the laws of the
land. For instance, even as an acting official he cannot be denied his constitutional right to
due process and equal protection of the laws and his statutory right to be treated with justice,
honesty and good faith by his superior officials. These protected rights were in no way waived
or diminished by his acceptance of a government job in an acting or temporary capacity.
There is no law that gives a license to abuse a government official just because he has no
security of tenure. When such injustices and abuses are perpetrated, said official has a right
to their immediate abatement and it is the unavoidable duty of this Court to check-off their
continuance. In taking this suggested stance, this Court will not be ruling that petitioner has
security of tenure to his office for it is conceded that the law grants him none. The ruling
merely recognizes the right of petitioner to be protected from certain illegal acts even if he is
an acting official; it will go no further than to hold that the temporary nature of one's
employment cannot be misused to frustrate good government. If the annulment of the illegal
acts will lead to petitioner's reinstatement for a short while, the benefit is incidental and ought
to be allowed. Again, his reinstatement is not a recognition of his irremovability for he may
later be terminated in accordance with law.
With due respect, I shudder at the mischiefs that may flow from the ponencia. Appointments
in acting capacity may be preferred to be extended by the unscrupulous for they know that
they possess the sword of Damocles over these kind of appointees as they can be removed
under the pretext that they have no security of tenure. The making of this mischief could not
have been intended by our civil service laws, rules and regulations. It is self-evident that these
civil service laws, rules and regulations that classify government officials into permanent and
temporary have one objective and that is, the promotion of good government. To interpret
them in a manner that will not enhance our efforts to establish good government is to ignore
this noble intent.
In order to vindicate the right of the petitioner, I do not consider the later appointment of Juan
Magano as an insuperable obstacle. It is evident that this appointment is part of the malicious
machination to remove petitioner by fair and foul method. The malice of respondents exhibit
itself when they relieved petitioner on the pretense he has no eligibility and yet recklessly
appointed to the same position, Messrs. Maglaya and Araneta, who were equally ineligible. It
is plain that they removed petitioner not to strengthen the civil service with better qualified
officials but to perpetrate an act of vendetta. When they realized their recklessness, they
appointed Magano to legalize the illegal. I submit that Magano cannot profit from the fruits of
this crude cover-up.
In sum, I vote to grant the petition and to annul the dismissal of petitioner because it will
enhance the State policy "to maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption (Art. II, sec. 221 the
Constitution); it will give more life to the postulate that a public office is a public trust. Public
officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice" (Art XI,

sec. 1 of the Constitution); and hopefully, it will frustrate the misuse of our civil service rule on
security of tenure to promote bad government.

EN BANC
[G.R. No. 138780. May 22, 2001]
NORBERTO ORCULLO, JR., petitioner, vs. CIVIL SERVICE COMMISSION and
COORDINATING COUNCIL OF THE PHILIPPINE ASSISTANCE PROGRAM, respondents.
DECISION
KAPUNAN, J.:

Petitioner Norberto A. Orcullo, Jr. was hired as Project Manager IV by the Coordinating Council of the
Philippine Assistance Program (CCPAP)-BOT Center effective March 11, 1996. His employment was
contractual and co-terminous with the said project which was to end on January 30, 2000.[1] On
September 23, 1996 or six (6) months from his assumption to office, petitioner received a
Memorandum, dated September 20, 1996, from one Jorge M. Briones, Assistant Director of CCPAP,
terminating petitioner's contractual employment with said agency effective September 30, 1996.[2]
In a Letter dated September 20, 1996, Undersecretary Francisco F. del Rosario, Executive Director of
CCPAP, confirmed petitioner's termination as project manager of CCPAP.
Aggrieved by his dismissal, petitioner appealed the same to the Civil Service Commission (CSC).
On April 2, 1997, the respondent CSC issued Resolution No. 972309 dismissing petitioner's appeal.
The CSC found that:
x x x the appointment of Orcullo is contractual and co-terminous with the Philippine Assistance
Program Support Project and that it carries the stipulated condition "Unless terminated sooner." The
latter condition has not been qualified by any safeguard. Appellant Orcullo, when he accepted said
contractual-coterminous appointment, was aware that his services might be terminated anytime. He is,
thus, not protected by the security of tenure clause of the Constitution. The contract is the law between
the parties. And whatever is stipulated therein governs the relationship between the parties. Said
stipulations in the contract may include the mode or manner of separations. And the cause therefore
includes and is not proscribed to derogatory record, misbehavior or incompetence or hostile attitudes.
In the instant case, appellant was separated from the service particularly for unsatisfactory
performance. (Underscoring ours)
On the issue of the proper official who should effect such termination, the next lower official of the
Center may do so. In this case, said separation was later validated by the confirmation of the head
office.[3]

Petitioner filed a motion for reconsideration of the above resolution. On June 17, 1997, the CSC
denied said motion in its Resolution No. 973099.
On July 30, 1997, petitioner, through counsel, filed a petition for review with the Court of Appeals.
On August 14, 1998, the Court of Appeals rendered a decision, the dispositive portion of which reads
as follows:
WHEREFORE, for lack of merit, the petition in the above entitled case is hereby DISMISSED. Costs
against petitioner.
SO ORDERED.[4]
Hence, this petition. Petitioner raises the sole issue of whether employees in the public service,
regardless of their status of employment, are protected by the tenurial security right embodied in the
Constitution.
Petitioner argues that, contrary to the findings of the CSC, the phrase "unless terminated sooner" refers
not to the duration of his employment, but the duration of the PAPS support project itself. He claims
that since the PAPS project was still ongoing, his services cannot be terminated without just cause and
without the observance of due process. He asseverates that even co-terminous employees like himself
enjoy security of tenure as embodied in the Constitution.
Petitioner's arguments are bereft of merit.
It is undisputed that petitioner's employment with CCPAP is contractual and co-terminous in nature.
Such a co-terminous employment falls under the non-career service classification of positions in the
Civil Service:
Sec. 9. Non-Career Service. - The Non-Career Service shall be characterized by (1) entrance on bases
other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to the duration of a particular project for which
purpose employment was made. (Underscoring ours)
The Non-Career Service shall include:
xxx
(4) Contractual personnel or those whose employment in the government is in accordance with a
special contract to undertake a specific work or job, requiring special or technical skills not available in
the employing agency, to be accomplished within a specific period, which in no case shall exceed one
year, and performs or accomplishes the specific work or job, under his own responsibility with a
minimum of direction and supervision from the hiring agency.
xxx[5]

Additionally, Section 14 of the Omnibus Rules Implementing Book V of Executive Order No. 292
provides:
Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance
and continuity in the service is based on the trust and confidence of the appointing authority or that
which is subject to his pleasure, or co-existent with his tenure, or limited by the duration of project or
subject to the availability of funds. (Underscoring ours)
The co-terminous status may thus be classified as follows:
(1) Co-terminous with the project - when the appointment is co-existent with the duration of a
particular project for which purpose employment was made or subject to the availability of funds for
the same;
(2) Co-terminous with the appointing authority - when appointment is co-existent with the tenure of
the appointing authority or at his pleasure; (Underscoring ours)
(3) Co-terminous with the incumbent - when the appointment is co-existent with the appointee, in that
after the resignation, separation or termination of the services of the incumbent the position shall be
deemed automatically abolished; and
(4) Co-terminous with a specific period - appointment is for a specific period and upon expiration and
upon thereof, the position is deemed abolished.
A perusal of petitioners employment contract will reveal that his employment with CCPAP is qualified
by the phrase unless terminated sooner. Thus, while such employment is co-terminous with the PAPS
project, petitioner nevertheless serves at the pleasure of the appointing authority as this is clearly
stipulated in his employment contract. We agree with the appellate courts intepretation of the phrase
unless terminated sooner to mean that his contractual job as Project Manager IV from March 11,
1996 to January 30, 2000 could end anytime before January 30, 2000 if terminated by the other
contracting party-employer CCPAP. We quote with approval said courts ruling on the matter, thus:
xxx. The employment contract is written in plain and unambiguous language. With petitioner's
stature, he could not have misunderstood it. Petitioner cannot now renege from the stipulation
invoking security of tenure under the Constitution and the Civil Service Law. The fact is he
belongs to the non-career service whose appointment is co-terminous, meaning his entrance and
continuity in the service is based on trust and confidence of the appointing power.[6]
(Underscoring ours)
Granting arguendo that said disputed phrase refers not to the duration of petitioners employment, but
to the project itself, nevertheless, petitioner was validly terminated for cause. The records will show
that petitioner garnered an unsatisfactory rating during the probationary period of his employment.[7]
After due notice, he was subsequently dismissed because of his inability to work with the other staff
members of the project and to participate effectively in meetings regarding the project, resulting in loss
of trust in him by his superiors. This much can be gleaned from the Memorandum, dated September
20, 1996, sent by Mr. Briones to the petitioner, which reads as follows:

This is to confirm my verbal advise to you made last 4 September 1996 regarding your unsatisfactory
performance during the probationary period of your contractual employment with the CCPAP BOT
Center.
As advised, your inability to work with the other staff in the Center as well as participate in outside
meetings are the main reasons for the rating which have resulted in the loss of my confidence in your
ability to do your job as a Manager. (Underscoring supplied)
xxx[8]
Finally, we find petitioner's claim that he was deprived of due process unavailing. The Court of
Appeals found that petitioner was informed of his unsatisfactory performance in his job as project
manager about two weeks prior to his termination. Thereafter, upon receipt of the memorandum
terminating his services, petitioner filed a complaint-appeal to the CSC. When the CSC affirmed his
dismissal in its Resolution, dated April 2, 1997, petitioner filed a motion for reconsideration thereof.
Thus, he cannot now claim that he was not given the opportunity to be heard.
WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of merit.
SO ORDERED.

EN BANC

G.R. No. 91636 April 23, 1992

PETER JOHN D. CALDERON, Petitioner, vs. BARTOLOME CARALE, in his capacity as
Chairman of the National Labor Relations Commission, EDNA BONTO PEREZ, LOURDES C.
JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA,
VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G.
GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO,
BERNABE S. BATUHAN and OSCAR N. ABELLA, in their capacity as Commissioners of the
National Labor Relations Commission, and GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, Respondents.
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PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:
Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or

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officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.
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The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. 1
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The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained
in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento III vs. Mison 2 as
follows:
. . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one
of those within the first group of appointments where the consent of the Commission on Appointments
is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of
bureaus" among those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution, on the other hand, deliberately excluded the position of "heads of
bureaus" from appointments that need the consent (confirmation) of the Commission on
Appointments.
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. . . Consequently, we rule that the President of the Philippines acted within her constitutional authority
and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without
submitting his nomination to the Commission on Appointments for confirmation. . . .
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. . . In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its
framers was to exclude presidential appointments from confirmation by the Commission on
Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Art.
VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word
"alone" after the word "President" in providing that Congress may by law vest the appointment of
lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because
the power to appoint officers whom he (the president) may be authorized by law to appoint is already
vested in the President, without need of confirmation by the Commission on Appointments, in the
second sentence of the same Sec. 16, Article VII." (emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga, 3this time involving the appointment of the
Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court
explained:
. . . Since the position of Chairman of the Commission on Human Rights is not among the positions
mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are
to be made with the confirmation of the Commission on Appointments, it follows that the appointment
by the President of the Chairman of the CHR is to be made without the review or participation of the
Commission on Appointments. To be more precise, the appointment of the Chairman and Members of
the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service Commission, the Commission on Elections and the

Commission on Audit, whose appointments are expressly vested by the Constitution in the president
with the consent of the Commission on Appointments. The president appoints the Chairman and
Members of The Commission on Human Rights pursuant to the second sentence in Section 16, Art.
VII, that is, without the confirmation of the Commission on Appointments because they are among the
officers of government "whom he (the President) may be authorized by law to appoint." And Section
2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and
Members of the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The Commission
on Constitutional Commissions, et al., 4the power of confirmation of the Commission on Appointments
over appointments by the President of sectoral representatives in Congress was upheld because:
. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled
by appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is
indubitable that sectoral representatives to the House of Representatives are among the "other officers
whose appointments are vested in the President in this Constitution," referred to in the first sentence of
Section 16, Art. VII whose appointments are subject to confirmation by the Commission on
Appointments.
From the three (3) cases above-mentioned, these doctrines are deducible:

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1. Confirmation by the Commission on Appointments is required only for presidential appointees

mentioned in the first sentence of Section 16, Article VII, including, those officers whose appointments
are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress
and members of the constitutional commissions of Audit, Civil Service and Election).
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2. Confirmation is not required when the President appoints other government officers whose
appointments are not otherwise provided for by law or those officers whom he may be authorized by
law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as
observed in Mison, when Congress creates inferior offices but omits to provide for appointment thereto,
or provides in an unconstitutional manner for such appointments, the officers are considered as among
those whose appointments are not otherwise provided for by law.
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Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was
approved. It provides in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed
by the President, subject to confirmation by the Commission on Appointments. Appointments to any
vacancy shall come from the nominees of the sector which nominated the predecessor. The Executive
Labor Arbiters and Labor Arbiters shall also be appointed by the President, upon recommendation of
the Secretary of Labor and Employment, and shall be subject to the Civil Service Law, rules and
regulations. 5
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Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the
NLRC representing the public, workers and employers sectors. The appointments stated that the
appointees may qualify and enter upon the performance of the duties of the office. After said

appointments, then Labor Secretary Franklin Drilon issued Administrative Order No. 161, series of
1989, designating the places of assignment of the newly appointed commissioners.
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This petition for prohibition questions the constitutionality and legality of the permanent appointments
extended by the President of the Philippines to the respondents Chairman and Members of the National
Labor Relations Commission (NLRC), without submitting the same to the Commission on
Appointments for confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715.

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Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of
validity. RA 6715 is not, according to petitioner, an encroachment on the appointing power of the
executive contained in Section 16, Art. VII, of the Constitution, as Congress may, by law, require
confirmation by the Commission on Appointments of other officers appointed by the President
additional to those mentioned in the first sentence of Section 16 of Article VII of the Constitution.
Petitioner claims that the Mison and Bautista rulings are not decisive of the issue in this case for in the
case at bar, the President issued permanent appointments to the respondents without submitting them to
the CA for confirmation despite passage of a law (RA 6715) which requires the confirmation by the
Commission on Appointments of such appointments.
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The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code
transgresses Section 16, Article VII by expanding the confirmation powers of the Commission on
Appointments without constitutional basis. Mison and Bautista laid the issue to rest, says the Solicitor
General, with the following exposition:
As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on
Appointments is required exclusively for the heads of executive departments, ambassadors, public
ministers, consuls, officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in the President by the Constitution, such as the members of the
various Constitutional Commissions. With respect to the other officers whose appointments are not
otherwise provided for by the law and to those whom the President may be authorized by law to
appoint, no confirmation by the Commission on Appointments is required.
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Had it been the intention to allow Congress to expand the list of officers whose appointments must be
confirmed by the Commission on Appointments, the Constitution would have said so by adding the
phrase "and other officers required by law" at the end of the first sentence, or the phrase, "with the
consent of the Commission on Appointments" at the end of the second sentence. Evidently, our
Constitution has significantly omitted to provide for such additions.
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The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No.
517 of the Constitutional Commission reads as follows:
"The President shall nominate and, with the consent of the Commission on Appointments, shall appoint
the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may by law vest the appointment of inferior
officers in the President alone, in the courts or in the heads of the department."

Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935
Constitution and in the original text of Section 16 of Article VII of the present Constitution as proposed
in Resolution No. 517.
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First, in both of them, the appointments of heads of bureaus were required to be confirmed by the
Commission on Appointments.
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Second, in both of them, the appointments of other officers, "whose appointments are not otherwise
provided for by law to appoint" are expressly made subject to confirmation by the Commission on
Appointments. However, in the final version of Resolution No. 517, as embodied in Section 16 of
Article VII of the present Constitution, the appointment of the above mentioned officers (heads of
bureaus; other officers whose appointments are not provided for by law; and those whom he may be
authorized by law to appoint) are excluded from the list of those officers whose appointments are to be
confirmed by the Commission on Appointments. This amendment, reflected in Section 16 of Article
VII of the Constitution, clearly shows the intent of the framers to exclude such appointments from the
requirement of confirmation by the Commission on Appointments.
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Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10
of Article VII thereof.
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Respondent reiterates that if confirmation is required, the three (3) stage process of nomination,
confirmation and appointment operates. This is only true of the first group enumerated in Section 16,
but the word nominate does not any more appear in the 2nd and 3rd sentences. Therefore, the
president's appointment pursuant to the 2nd and 3rd sentences needs no confirmation. 6
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The only issue to be resolved by the Court in the present case is whether or not Congress may, by law,
require confirmation by the Commission on Appointments of appointments extended by the president
to government officers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII
of the Constitution whose appointments require confirmation by the Commission on Appointments.

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library

To resolve the issue, we go back to Mison where the Court stated:

. . . there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to
which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval captain, and other officers whose appointments
are vested in him in this Constitution;
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Second, all other officers of the Government whose appointments are not otherwise provided for by
law;
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Third, those whom the president may be authorized by law to appoint;

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Fourth, officers lower in rank whose appointments the Congress may by law vest in the President
alone. 7

Mison also opined:

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and
approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus
from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of
appointments made under the second sentence of the section from the same requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose
appointments are not otherwise provided for by law and those whom the President may be authorized
by law to appoint.
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Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16,
Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in
Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman
and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16,
Article VII whose appointments requires confirmation by the Commission on Appointments. To the
extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of
respondents Chairman and Members of the National Labor Relations Commission, it is
unconstitutional because:
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1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto
appointments requiring confirmation by the Commission on Appointments; and
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2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the
confirmation of the Commission on Appointments on appointments which are otherwise entrusted only
with the President.
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Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a

judicial function. The Court respects the laudable intention of the legislature. Regretfully, however, the
constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it
requires confirmation of the Commission on Appointments over appointments of the Chairman and
Member of the National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if
we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.
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Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of
the Philippines. 8No doctrine or principle of law laid down by the Court in a decision rendered en banc
or in division may be modified or reversed except by the Court sitting en banc. 9
. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that
law was originally passed, since this Court's construction merely establishes the contemporaneous
legislative intent that the law thus construed intends to effectuate. The settled rule supported by
numerous authorities is a restatement of the legal maxim "legis interpretado legis vim obtinent" - the
interpretation placed upon the written law by a competent court has the force of law. 10
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The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one
manner. Can legislation expand a constitutional provision after the Supreme Court has interpreted it?

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In Endencia and Jugo vs. David, 11 the Court held:

By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says that taxing the
salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation
or ascertainment of the meaning of the phrase "which shall not be diminished during their continuance
in office," found in Section 9, Article VIII of the Constitution, referring to the salaries of judicial
officers.
xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory
of what the law was before its passage, so as to give it any binding weight with the courts. A legislative
definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise,
the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis
supplied).
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The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to
prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the
constitutional inhibition. (11 Am., Jur., 919, emphasis supplied).
We have already said that the Legislature under our form of government is assigned the task and the
power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative
department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertained its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decisions. Under such a system, a final court determination of a case based on a
judicial interpretation of the law or of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the Constitution by the Legislative department
that would be neither wise nor desirable, being clearly violative of the fundamental principles of our
constitutional system of government, particularly those governing the separation of powers.
14
(Emphasis supplied)
Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional
powers when it sets out to enact legislation and it must take into account the relevant constitutional
prohibitions. 15
. . . The Constitution did not change with public opinion.

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It is not only the same words, but the same in meaning . . . and as long as it it speaks not only in the
same words, but with the same meaning and intent with which it spoke when it came from the hands of
its framers, and was voted and adopted by the people . . . 16
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The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution
which is invoked beside the statute which is challenged and to decide whether the latter squares with
the former" and to "announce its considered judgment upon the question." 17
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It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not
unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system
embodied in the 1935 Constitution where the Commission on Appointments exercised the power of

confirmation over almost all presidential appointments, leading to many cases of abuse of such power
of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution provided:
3. The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of
the Government whose appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; . . .
The deliberate limitation on the power of confirmation of the Commission on Appointments over
presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly
evoked the displeasure and disapproval of members of Congress. The solution to the apparent problem,
if indeed a problem, is not judicial or legislative but constitutional. A future constitutional convention
or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the
1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987
constitutional provisions. Until then, it is the duty of the Court to apply the 1987 Constitution in
accordance with what it says and not in accordance with how the legislature or the executive would
want it interpreted.
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WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715
insofar as it requires the confirmation of the Commission on Appointments of appointments of the
Chairman and Members of the National Labor Relations Commission (NLRC) is hereby declared
unconstitutional and of no legal force and effect.
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SO ORDERED.

EN BANC
[G.R. No. 149036. April 2, 2002]
MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO, RESURRECCION Z.
BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in
his capacity as Officer-In-Charge, Finance Services Department of the Commission on Elections,
respondents.
DECISION
CARPIO, J.:

The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure.
Petitioner Ma. J. Angelina G. Matibag (Petitioner for brevity) questions the constitutionality of the
appointment and the right to hold office of the following: (1) Alfredo L. Benipayo (Benipayo for

brevity) as Chairman of the Commission on Elections (COMELEC for brevity); and (2) Resurreccion
Z. Borra (Borra for brevity) and Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco[1]
(Cinco for brevity) as Director IV of the COMELECs Education and Information Department
(EID for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as Acting Director IV of the EID.
On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner
as Director IV of EID in a Temporary capacity. On February 15, 2001, Commissioner Rufino S.B.
Javier renewed again the appointment of petitioner to the same position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as
COMELEC Chairman,[3] and Borra[4] and Tuason[5] as COMELEC Commissioners, each for a term of
seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed the
position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed
their positions as COMELEC Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and
Tuason for confirmation.[6] However, the Commission on Appointments did not act on said
appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and
Tuason to the same positions and for the same term of seven years, expiring on February 2, 2008.[7]
They took their oaths of office for a second time. The Office of the President transmitted on June 5,
2001 their appointments to the Commission on Appointments for confirmation.[8]
Congress adjourned before the Commission on Appointments could act on their appointments. Thus,
on June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo,
Borra and Tuason to the same positions.[9] The Office of the President submitted their appointments for
confirmation to the Commission on Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001[11]
addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID,
designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department.
COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners reassignment in a
Memorandum dated April 14, 2001[12] addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of the
EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and
her reassignment to the Law Department.[13] Petitioner cited Civil Service Commission Memorandum
Circular No. 7 dated April 10, 2001, reminding heads of government offices that transfer and detail of
employees are prohibited during the election period beginning January 2 until June 13, 2001.
Benipayo denied her request for reconsideration on April 18, 2001,[14] citing COMELEC Resolution
No. 3300 dated November 6, 2000, which states in part:

NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of its
field personnel within the thirty-day period before election day shall be effected after due notice and
hearing.
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.[15] Petitioner also filed an administrative and criminal
complaint[16] with the Law Department[17] against Benipayo, alleging that her reassignment violated
Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service
Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules
and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as
Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim
appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director
IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of
the disbursements made by COMELEC Finance Services Department Officer-in-Charge Gideon C. De
Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.[18] They all took their oaths of
office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its
power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo,
Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate the prohibition on reappointment under
Section 1 (2), Article IX-C of the Constitution;

4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having been done without the
approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in
continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess
of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise
its power of judicial review in constitutional cases. Out of respect for the acts of the Executive
department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing
the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and
Tuason unless all the four requisites are present. These are: (1) the existence of an actual and
appropriate controversy; (2) a personal and substantial interest of the party raising the constitutional
issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the
constitutional issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this case. Respondents
maintain that petitioner does not have a personal and substantial interest in the case because she has not
sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and
their assumption of office. Respondents point out that petitioner does not claim to be lawfully entitled
to any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be
directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad interim
appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite
the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March
22, 2001. Moreover, the petition was filed after the third time that these three respondents were issued
ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners reassignment from the
EID to the Law Department. Consequently, the constitutionality of the ad interim appointments is not
the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department,
where she was placed on detail service.[20] Respondents claim that the reassignment was pursuant to
x x x Benipayos authority as Chairman of the Commission on Elections, and as the Commissions
Chief Executive Officer.[21] Evidently, respondents anchor the legality of petitioners reassignment
on Benipayos authority as Chairman of the COMELEC. The real issue then turns on whether or not
Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of
the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an
office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioners reassignment is legal and she has no cause to
complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner
has a personal and material stake in the resolution of the constitutionality of Benipayos assumption of
office. Petitioners personal and substantial injury, if Benipayo is not the lawful COMELEC
Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3,
2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is
not the date of filing of the petition that determines whether the constitutional issue was raised at the
earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings
before a competent court that can resolve the same, such that, if it is not raised in the pleadings, it
cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on
appeal.[22] Petitioner questioned the constitutionality of the ad interim appointments of Benipayo,
Borra and Tuason when she filed her petition before this Court, which is the earliest opportunity for
pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in
the exercise of sound discretion, the time when a constitutional issue may be passed upon.[23] There is
no doubt petitioner raised the constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad
interim appointment and assumption of office. Unless the constitutionality of Benipayos ad interim
appointment and assumption of office is resolved, the legality of petitioners reassignment from the
EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections
may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with
this Courts duty to determine whether other agencies of government have remained within the limits
of the Constitution and have not abused the discretion given them, this Court may even brush aside
technicalities of procedure and resolve any constitutional issue raised.[24] Here the petitioner has
complied with all the requisite technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is
prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:
The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity. (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President
at her pleasure, and can even be disapproved or simply by-passed by the Commission on
Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in
character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the
Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other
two constitutional commissions, namely the Civil Service Commission and the Commission on Audit.
The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and
Article IX-D providing for the creation of the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad
interim appointee cannot assume office until his appointment is confirmed by the Commission on
Appointments for only then does his appointment become permanent and no longer temporary in
character.
The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission
on Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond
the influence of the President or members of the Commission on Appointments since his appointment
can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of
both the appointing and confirming powers since his appointment can be terminated at any time for any
cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose
confirmation is pending with the Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can no
longer be withdrawn by the President once the appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on Appointments does not alter its permanent character.
The Constitution itself makes an ad interim appointment permanent in character by making it effective
until disapproved by the Commission on Appointments or until the next adjournment of Congress. The
second paragraph of Section 16, Article VII of the Constitution provides as follows:
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by the President. The fear that the President
can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without
basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is permanent
in character. In Summers vs. Ozaeta,[25] decided on October 25, 1948, we held that:
x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of
the Constitution, which provides that the President shall have the power to make appointments during
the recess of the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. It is an appointment

permanent in nature, and the circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interim appointment is disapproved
certainly for a reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an acting appointment which is merely temporary, good until another permanent
appointment is issued. (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The appointee can at once assume office and exercise,
as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission
on Appointments,[26] this Court elaborated on the nature of an ad interim appointment as follows:
A distinction is thus made between the exercise of such presidential prerogative requiring
confirmation by the Commission on Appointments when Congress is in session and when it is in
recess. In the former, the President nominates, and only upon the consent of the Commission on
Appointments may the person thus named assume office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual chosen may thus qualify and perform his
function without loss of time. His title to such office is complete. In the language of the Constitution,
the appointment is effective until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the meantime
or for the time being. Hence, petitioner argues that an ad interim appointment is undoubtedly
temporary in character. This argument is not new and was answered by this Court in Pamantasan ng
Lungsod ng Maynila vs. Intermediate Appellate Court,[27] where we explained that:
x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ad interim appointments
which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal
translation of the word ad interim which creates such belief. The term is defined by Black to mean
in the meantime or for the time being. Thus, an officer ad interim is one appointed to fill a
vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its
regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the
meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans
appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is
used to denote the manner in which said appointments were made, that is, done by the President of
the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the
University Charter with the power of appointment, is unable to act. x x x. (Emphasis supplied)
Thus, the term ad interim appointment, as used in letters of appointment signed by the President,
means a permanent appointment made by the President in the meantime that Congress is in recess. It
does not mean a temporary appointment that can be withdrawn or revoked at any time. The term,
although not found in the text of the Constitution, has acquired a definite legal meaning under
Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim
appointment in the more recent case of Marohombsar vs. Court of Appeals,[28] where the Court stated:
We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was made. In the instant case, the

appointment extended to private respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office
No. 12. Petitioners submission that private respondents ad interim appointment is synonymous
with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad
interim appointments are permanent but their terms are only until the Board disapproves them.
(Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that [n]o
officer or employee in the civil service shall be removed or suspended except for cause provided by
law.[29] Thus, an ad interim appointment becomes complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is
communicated to the appointee before the moment he qualifies, and any withdrawal or revocation
thereafter is tantamount to removal from office.[30] Once an appointee has qualified, he acquires a legal
right to the office which is protected not only by statute but also by the Constitution. He can only be
removed for cause, after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first
cause is the disapproval of his ad interim appointment by the Commission on Appointments. The
second cause is the adjournment of Congress without the Commission on Appointments acting on his
appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all
ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over
the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself
that places the Sword of Damocles over the heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an
appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power.[31] A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the
President from making to the three independent constitutional commissions, including the COMELEC.
Thus, in Brillantes vs. Yorac,[32] this Court struck down as unconstitutional the designation by then
President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the
COMELEC. This Court ruled that:
A designation as Acting Chairman is by its very terms essentially temporary and therefore
revocable at will. No cause need be established to justify its revocation. Assuming its
validity, the designation of the respondent as Acting Chairman of the Commission on
Elections may be withdrawn by the President of the Philippines at any time and for whatever
reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not
be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the Commission on
Elections, foremost among which is the security of tenure of its members. That guarantee is
not available to the respondent as Acting Chairman of the Commission on Elections by
designation of the President of the Philippines.

Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935 Constitution, which did
not have a provision prohibiting temporary or acting appointments to the COMELEC, this Court
nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the
COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared then: It would be
more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a
permanent Commissioner than to designate one to act temporarily. (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in
the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra
and Tuason were extended permanent appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in
Brillantes vs. Yorac[34] and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.[35] The
ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution
which authorizes the President, during the recess of Congress, to make appointments that take effect
immediately.
While the Constitution mandates that the COMELEC shall be independent[36], this provision should
be harmonized with the Presidents power to extend ad interim appointments. To hold that the
independence of the COMELEC requires the Commission on Appointments to first confirm ad interim
appointees before the appointees can assume office will negate the Presidents power to make ad
interim appointments. This is contrary to the rule on statutory construction to give meaning and effect
to every provision of the law. It will also run counter to the clear intent of the framers of the
Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject
to confirmation by the Commission on Appointments - did not provide for ad interim appointments.
The original intention of the framers of the Constitution was to do away with ad interim appointments
because the plan was for Congress to remain in session throughout the year except for a brief 30-day
compulsory recess. However, because of the need to avoid disruptions in essential government
services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following discussion during the deliberations of the
Constitutional Commission elucidates this:
FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments? Perhaps there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in
terms of anticipating interruption of government business, considering that we are not certain of the
length of involuntary recess or adjournment of the Congress. We are certain, however, of the
involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the
matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner
has a formula x x x.

xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner Aquino and I propose the following amendment as the
last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT
SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF
CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS
SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON
APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and
Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the
amendment is approved.[37] (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the
President was for the purpose of avoiding interruptions in vital government services that otherwise
would result from prolonged vacancies in government offices, including the three constitutional
commissions. In his concurring opinion in Guevara vs. Inocentes,[38] decided under the 1935
Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in
this manner:
Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the
session of Congress, the evil sought to be avoided interruption in the discharge of essential
functions may take place. Because the same evil would result if the appointments ceased to be
effective during the session of Congress and before its adjournment. Upon the other hand, once
Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments. (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely
avoided the interruption of essential government services in the May 2001 national elections.
Following the decision of this Court in Gaminde vs. Commission on Appointments,[39] promulgated on
December 13, 2000, the terms of office of constitutional officers first appointed under the Constitution
would have to be counted starting February 2, 1987, the date of ratification of the Constitution,
regardless of the date of their actual appointment. By this reckoning, the terms of office of three
Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February 15, 2002,[41] the original expiry date of the term of
her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date
of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of
Commissioner Julio F. Desamito was November 3, 2001.[42] The original expiry dates of the terms of
office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to
fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling, there
were three vacancies in the seven-person COMELEC, with national elections looming less than three

and one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated
their offices on February 2, 2001 and did not question any more before this Court the applicability of
the Gaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in
choosing her successor might create a constitutional crisis in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a petition for intervention[44] in the Gaminde
case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on
February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June
considering that many of the members of the House of Representatives and the Senate run for reelection. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.[45]
Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended
ad interim appointments only on March 22, 2001, to be confirmed by the Commission on
Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three
vacancies in the COMELEC, there would only have been one division functioning in the COMELEC
instead of two during the May 2001 elections. Considering that the Constitution requires that all x x x
election cases shall be heard and decided in division,[46] the remaining one division would have been
swamped with election cases. Moreover, since under the Constitution motions for reconsideration
shall be decided by the Commission en banc, the mere absence of one of the four remaining
members would have prevented a quorum, a less than ideal situation considering that the
Commissioners are expected to travel around the country before, during and after the elections. There
was a great probability that disruptions in the conduct of the May 2001 elections could occur because
of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections,
right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interim appointments prevented the occurrence of the very evil sought to be avoided by the second
paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments
is lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of
Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing
officials who are subject to confirmation by the Commission on Appointments. First, while Congress
is in session, the President may nominate the prospective appointee, and pending consent of the
Commission on Appointments, the nominee cannot qualify and assume office. Second, during the
recess of Congress, the President may extend an ad interim appointment which allows the appointee to
immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad interim
appointment is a matter within the prerogative of the President because the Constitution grants her that
power. This Court cannot inquire into the propriety of the choice made by the President in the exercise
of her constitutional power, absent grave abuse of discretion amounting to lack or excess of jurisdiction
on her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice.

Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E.
Abueg.[47] Former President Fidel V. Ramos extended ad interim appointments to Commissioners
Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.[48]
Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani
M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.[49]
The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the
mercy of both the appointing and confirming powers. This situation, however, is only for a short
period - from the time of issuance of the ad interim appointment until the Commission on
Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a
trade-off against the evil of disruptions in vital government services. This is also part of the check-andbalance under the separation of powers, as a trade-off against the evil of granting the President absolute
and sole power to appoint. The Constitution has wisely subjected the Presidents appointing power to
the checking power of the legislature.
This situation, however, does not compromise the independence of the COMELEC as a constitutional
body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its
members hold confirmed appointments, and not one President will appoint all the COMELEC
members.[50] In the instant case, the Commission on Appointments had long confirmed four[51] of the
incumbent COMELEC members, comprising a majority, who could now be removed from office only
by impeachment. The special constitutional safeguards that insure the independence of the COMELEC
remain in place.[52] The COMELEC enjoys fiscal autonomy, appoints its own officials and employees,
and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC
members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and
Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or
acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of office
by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and
their subsequent assumption of office to the same positions violate the prohibition on reappointment
under Section 1 (2), Article IX-C of the Constitution, which provides as follows:
The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
members for three years, without reappointment. X x x. (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on
Appointments, his ad interim appointment can no longer be renewed because this will violate Section 1
(2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is
particularly true to permanent appointees who have assumed office, which is the situation of Benipayo,
Borra and Tuason if their ad interim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can
no longer be extended a new appointment. The disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its
consent after deliberating on the qualifications of the appointee. Since the Constitution does not
provide for any appeal from such decision, the disapproval is final and binding on the appointee as well
as on the appointing power. In this instance, the President can no longer renew the appointment not
because of the constitutional prohibition on reappointment, but because of a final decision by the
Commission on Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally
acted upon on the merits by the Commission on Appointments at the close of the session of Congress.
There is no final decision by the Commission on Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such decision, the President is free to renew the ad
interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the
Commission on Appointments, which provides as follows:
Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or
appointments submitted by the President of the Philippines which are not finally acted upon at the close
of the session of Congress shall be returned to the President and, unless new nominations or
appointments are made, shall not again be considered by the Commission. (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be
considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of bypassed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in
Guevara vs. Inocentes[53] why by-passed ad interim appointees could be extended new appointments,
thus:
In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,
because the incumbent can not continue holding office over the positive objection of the Commission.
It ceases, also, upon the next adjournment of the Congress, simply because the President may then
issue new appointments - not because of implied disapproval of the Commission deduced from its
inaction during the session of Congress, for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never by omission. If the adjournment of Congress
were an implied disapproval of ad interim appointments made prior thereto, then the President could no
longer appoint those so by-passed by the Commission. But, the fact is that the President may
reappoint them, thus clearly indicating that the reason for said termination of the ad interim
appointments is not the disapproval thereof allegedly inferred from said omission of the Commission,
but the circumstance that upon said adjournment of the Congress, the President is free to make ad
interim appointments or reappointments. (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16,
Article VII of the present Constitution on ad interim appointments was lifted verbatim.[54] The
jurisprudence under the 1935 Constitution governing ad interim appointments by the President is
doubtless applicable to the present Constitution. The established practice under the present Constitution

is that the President can renew the appointments of by-passed ad interim appointees. This is a
continuation of the well-recognized practice under the 1935 Constitution, interrupted only by the 1973
Constitution which did not provide for a Commission on Appointments but vested sole appointing
power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be
revived by another ad interim appointment because the disapproval is final under Section 16, Article
VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C
of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim
appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and
such new appointment will not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the Commissioners
shall be appointed x x x for a term of seven years without reappointment. (Emphasis supplied) There
are four situations where this provision will apply. The first situation is where an ad interim appointee
to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year
term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman,
because he will then be actually serving more than seven years. The second situation is where the
appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of
office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy
arising from retirement because a reappointment will result in the appointee also serving more than
seven years. The third situation is where the appointee is confirmed to serve the unexpired term of
someone who died or resigned, and the appointee completes the unexpired term. Such person cannot
be reappointed, whether as a member or chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than seven years,
a reappointment of such person to serve an unexpired term is also prohibited because his situation will
be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first appointees under the Constitution whose terms of office
are less than seven years, but are barred from ever being reappointed under any situation. Not one of
these four situations applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of office
as COMELEC member whether for a full term of seven years, a truncated term of five or three
years, or even for an unexpired term of any length of time can no longer be reappointed to the
COMELEC. Commissioner Foz succinctly explained this intent in this manner:
MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo
Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment
applies only when the term or tenure is for seven years. But in cases where the appointee
serves only for less than seven years, he would be entitled to reappointment. Unless we put the
qualifying words without reappointment in the case of those appointed, then it is possible
that an interpretation could be made later on their case, they can still be reappointed to
serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those
first appointed under the Constitution, no reappointment can be made.[55] (Emphasis
supplied)
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs.
De Vera[57] that a [r]eappointment is not prohibited when a Commissioner has held office only for,
say, three or six years, provided his term will not exceed nine years in all. This was the interpretation
despite the express provision in the 1935 Constitution that a COMELEC member shall hold office for
a term of nine years and may not be reappointed.
To foreclose this interpretation, the phrase without reappointment appears twice in Section 1 (2),
Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person
previously appointed for a term of seven years. The second phrase prohibits reappointment of any
person previously appointed for a term of five or three years pursuant to the first set of appointees
under the Constitution. In either case, it does not matter if the person previously appointed completes
his term of office for the intention is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments
does not constitute a term of office. The period from the time the ad interim appointment is made to the
time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the
President by his unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on Appointments.
The phrase without reappointment applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term of
office. There must be a confirmation by the Commission on Appointments of the previous
appointment before the prohibition on reappointment can apply. To hold otherwise will lead to
absurdities and negate the Presidents power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time,
on the ad interim appointments first issued to appointees. If such ad interim appointments can no
longer be renewed, the President will certainly hesitate to make ad interim appointments because most
of her appointees will effectively be disapproved by mere inaction of the Commission on
Appointments. This will nullify the constitutional power of the President to make ad interim
appointments, a power intended to avoid disruptions in vital government services. This Court cannot
subscribe to a proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of
the present Constitution prohibited reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and confirmed even if they served for less
than seven years. The second is to insure that the members of the three constitutional commissions do
not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional
Commission, Commissioner Vicente B. Foz, who sponsored[58]the proposed articles on the three
constitutional commissions, outlined the four important features of the proposed articles, to wit:
Mr. Foz stated that the Committee had introduced basic changes in the common provision
affecting the three Constitutional Commissions, and which are: 1) fiscal autonomy which

provides (that) appropriations shall be automatically and regularly released to the Commission
in the same manner (as) provided for the Judiciary; 2) fixed term of office without
reappointment on a staggered basis to ensure continuity of functions and to minimize the
opportunity of the President to appoint all the members during his incumbency; 3) prohibition
to decrease salaries of the members of the Commissions during their term of office; and 4)
appointments of members would not require confirmation.[59] (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional Commission to these
four features. First, as discussed earlier, the framers of the Constitution decided to require confirmation
by the Commission on Appointments of all appointments to the constitutional commissions. Second,
the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term,
in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his
fixed term of seven years. The following exchange in the deliberations of the Constitutional
Commission is instructive:
MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the
sponsors attention, first of all, to Section 2 (2) on the Civil Service Commission wherein it is
stated: In no case shall any Member be appointed in a temporary or acting capacity. I detect
in the Committees proposed resolutions a constitutional hangover, if I may use the term, from
the past administration. Am I correct in concluding that the reason the Committee introduced
this particular provision is to avoid an incident similar to the case of the Honorable Francisco
Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit
for about 5 years from 1975 until 1980, and then in 1980, was appointed as Chairman with a
tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he
occupied that position for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any
member who is appointed to any of the commissions does not serve beyond 7 years.[60]
(Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there
is no reappointment of any kind and, therefore as a whole there is no way that somebody can
serve for more than seven years. The purpose of the last sentence is to make sure that this
does not happen by including in the appointment both temporary and acting capacities."[61]
(Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of
any kind. On the other hand, the prohibition on temporary or acting appointments is intended to
prevent any circumvention of the prohibition on reappointment that may result in an appointees total
term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very
specific - reappointment of any kind and exceeding ones term in office beyond the maximum period of
seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even
further the screws on those who might wish to extend their terms of office. Thus, the word
designated was inserted to plug any loophole that might be exploited by violators of the Constitution,

as shown in the following discussion in the Constitutional Commission:

MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to insert the
words OR DESIGNATED so that the whole sentence will read: In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity.
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case shall any
Member be appointed in a temporary or acting capacity.
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers
make a distinction between an appointment and a designation. The Gentleman will recall that in the
case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the
Minister of Justice opined that it did not because he was only designated during the time that he acted
as Commissioner on Audit. So, in order to erase that distinction between appointment and designation,
we should specifically place the word so that there will be no more ambiguity. In no case shall any
Member be appointed OR DESIGNATED in a temporary or acting capacity.
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.[62]
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason
do not violate the prohibition on reappointments because there were no previous appointments that
were confirmed by the Commission on Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and renewals of appointments will also not
breach the seven-year term limit because all the appointments and renewals of appointments of
Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008.[63] Any delay in
their confirmation will not extend the expiry date of their terms of office. Consequently, there is no
danger whatsoever that the renewal of the ad interim appointments of these three respondents will
result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. The
continuing renewal of the ad interim appointment of these three respondents, for so long as their terms
of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1
(2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign
her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial
body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her
consent amounts to removal from office without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of
Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC

Chairman, and consequently he has full authority to exercise all the powers of that office for so long as
his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of
the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power:
Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief
Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of
the Civil Service Law. (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority
to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise
of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001,
attached as Annexes X, Y and Z to her Petition, indisputably show that she held her Director IV
position in the EID only in an acting or temporary capacity.[64] Petitioner is not a Career Executive
Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are
necessary qualifications for holding the position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service Commission.[65] Obviously, petitioner does not
enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G.
Bacal,[66] this Court held that:
As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of tenure
in respect of that position. As held in Achacoso v. Macaraig:
It is settled that a permanent appointment can be issued only to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and at a moments
notice, conformably to established jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically confer security of
tenure on its occupant even if he does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position cannot be appointed to it in the first
place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence
of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it
may be so designated x x x.
Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner
that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing
power happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act
under Section 261 (h) of the Omnibus Election Code, which provides as follows:
Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who makes or
causes any transfer or detail whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon prior approval of the
Commission.
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect
transfers or reassignments of COMELEC personnel during the election period.[67] Moreover, petitioner
insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC
personnel during the election period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300
dated November 6, 2000,[68] exempting the COMELEC from Section 261 (h) of the Omnibus Election
Code. The resolution states in part:
WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as
follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon approval
of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14,
2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it can carry out its constitutional duty to conduct
free, orderly, honest, peaceful and credible elections;
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of its

field personnel within the thirty-day period before election day shall be effected after due notice and
hearing. (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer
or reassignment can be made within thirty days prior to election day, refers only to COMELEC field
personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code,
[69] the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign
COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or
reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en
banc cannot arrogate unto itself this power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution
No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en
banc will have to approve every personnel transfer or reassignment, making the resolution utterly
useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval from the COMELEC en banc
to actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign
COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of
COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from
the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For
the same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is legally
unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the
Finance Services Department of the Commission on Elections, did not act in excess of jurisdiction in
paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
SO ORDERED.

EN BANC
[G.R. No. 131136. February 28, 2001]

CONRADO L. DE RAMA, petitioner, vs. THE COURT OF APPEALS (NINTH DIVISION, THE
CIVIL SERVICE COMMISSION), ELADIO MARTINEZ, DIVINO DE JESUS, MORELL AYALA,
ARISTEO CATALLA, DAISY PORTA, FLORDELIZA ORIASEL, GRACIELA GLORY,
FELECIDAD ORINDAY, MA. PETRA MUFFET LUCE, ELSA MARINO, BERNARDITA
MENDOZA, JANE MACATANGAY, ADELFO GLODOVIZA and FLORINO RAMOS,
respondents.
DECISION
YNARES-SANTIAGO, J.:

Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Rama
wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the
appointments of fourteen (14) municipal employees, namely:
NAME

POSITION

DATE OF
APPOINTMENT

Eladio Martinez

Registration Officer I

June 1, 1995

Divino de Jesus

Bookbinder III

June 1, 1995

Morell Ayala

Accounting Clerk III

June 16, 1995

Daisy Porta

Clerk IV

June 27, 1995

Aristeo Catalla

Gen. Services Officer

June 19, 1995

Elsa Marino

Mun. Agriculturist

June 19, 1995

Gracella Glory

Bookkeeper II

June 27, 1995

Ma. Petra Muffet Lucce

Accounting Clerk III

June 27, 1995

Felicidad Orindag

Accounting Clerk II

June 27, 1995

Bernardita Mendoza Agricultural Technologist

June 27, 1995

Flordeliza Oriazel

Clerk I

June 27, 1995

Jane Macatangay

Day Care Worker I

June 27, 1995

Adolfo Glodoviza

Utility Worker II

June 27, 1995

Florencio Ramos

Utility Foreman

June 27, 1995[1]

Petitioner de Rama justified his recall request on the allegation that the appointments of the said
employees were midnight appointments of the former mayor, Ma. Evelyn S. Abeja, done in violation

of Article VII, Section 15 of the 1987 Constitution, which provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety. (Underscoring supplied)
While the matter was pending before the CSC, three of the above-named employees, namely: Elsa
Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their salaries,
alleging that although their appointments were declared permanent by Conrado Gulim, Director II of
the CSC Field Office based in Quezon, petitioner de Rama withheld the payment of their salaries and
benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995, wherein the
appointments of the said fourteen (14) employees were recalled.
Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial
Division of the CSC issued an Order[2] finding that since the claimants-employees had assumed their
respective positions and performed their duties pursuant to their appointments, they are therefore
entitled to receive the salaries and benefits appurtenant to their positions. Citing Rule V, Section 10 of
the Omnibus Rules[3] which provides, in part, that if the appointee has assumed the duties of the
position, he shall be entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission, the CSC Legal and Quasi-Judicial Division ruled that the said
employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-assumed
mayor.
On April 30, 1996, the CSC denied petitioners request for the recall of the appointments of the
fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus
Rules, and declared that the appointments of the said employees were issued in accordance with
pertinent laws. Thus, the same were effective immediately, and cannot be withdrawn or revoked by the
appointing authority until disapproved by the CSC. The CSC also dismissed petitioners allegation that
these were midnight appointments, pointing out that the Constitutional provision relied upon by
petitioner prohibits only those appointments made by an outgoing President and cannot be made to
apply to local elective officials. Thus, the CSC opined, the appointing authority can validly issue
appointments until his term has expired, as long as the appointee meets the qualification standards for
the position.[4]
The CSC upheld the validity of the appointments on the ground that they had already been approved by
the Head of the CSC Field Office in Lucena City, and for petitioners failure to present evidence that
would warrant the revocation or recall of the said appointments.
Petitioner moved for the reconsideration of the CSCs Resolution, as well as the Order of the CSC
Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to refuse to
revoke the subject appointments; and (2) to uphold the validity of said appointments, even assuming
that there was failure to present evidence that would prove that these appointments contravened
existing laws or rules. He also posited that the CSC erred in finding the appointments valid despite the
existence of circumstances showing that the same were fraudulently issued and processed.
On November 21, 1996, the CSC denied petitioners motion for reconsideration. The CSC reiterated
its ruling that:

In the absence of any showing that these alleged midnight appointments were defective in form and in
substance, nor is there evidence presented to show that subject appointments were issued in
contravention of law or rules, these appointments are deemed valid and in effect.
xxx

xxx

xxx

Mayor de Rama failed to present evidence that subject appointments should be revoked or recalled
because of any of the abovementioned grounds enumerated. As a matter of fact, said appointments
were even approved by the Head, Civil Service Field Office, Lucena City when submitted for
attestation. In the absence of a clear showing that these appointments were issued in violation of any of
these grounds, the Commission has no other recourse but to uphold their validity. (Underscoring
supplied)
The CSC also cited the Supreme Court ruling in the case of Aquino v. Civil Service Commission[5]
wherein this Court held that:
It is well-settled that once an appointment is issued and the moment the appointee assumes a position in
the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the
position), which is protected not only by statute, but also by the Constitution, and cannot be taken away
from him either by revocation of the appointment, or by removal, except for cause, and with previous
notice and hearing. (Emphasis supplied)
Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that the CSC
arrived at the erroneous conclusion after it ignored his supplement to the consolidated appeal and
motion for reconsideration wherein he laid out evidence showing that the subject appointments were
obtained through fraud.
After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a Resolution[6]
dated May 16, 1997 which held that there was no abuse of the power of appointment on the part of the outgoing mayor.

The Court of Appeals further held that the fact that the appointments of Marino, Ayala, Ramos,
Mendoza and Glory were made more than four (4) months after the publication of the vacancies to
which they were appointed is of no moment. Setting aside petitioners suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide that every appointment to the local
government service must be made within four (4) months from publication of the vacancies. It cited
Section 80 of said Act, to wit:
Section 80. Public Notice of Vacancy: Personnel Selection Board. (a) Whenever a local chief
executive decides to fill a vacant career position, there shall be posted notices of the vacancy in at least
three (3) conspicuous public places in the local government unit concerned for a period of not less than
fifteen (15) days.
(b)
There shall be established in every province, city or municipality a personnel selection board to
assist the local chief executive in the judicious and objective selection of personnel for employment as
well as for promotion, and in the formulation of such policies as would contribute to employee welfare.
(c)
The personnel selection board shall be headed by the local sanggunian concerned. A
representative of the Civil Service Commission, if any, and the personnel officer of the local

government unit concerned shall be ex officio members of the board.[7]

Likewise, neither did the CSCs own Circular Order No. 27, Section 7, Series of 1991, require that
vacant positions published in a government quarterly must be filled up before the advent of the
succeeding quarter.
On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the petition for
review.
Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding the
CSCs resolutions despite the following defects:
I.
No screening process and no criteria were adopted by the Personnel Selection Board in
nominating the respondents;
II.
No posting in three (3) conspicuous public places of notice of vacancy as required by the rules
and the law;
III.
Merit and fitness requirements were not observed by the selection board and by the appointing
authority as required by the Civil Service rules;
IV.

Petitioner has valid grounds to recall the appointments of respondents.[8]

In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for reconsideration.
Hence, the instant petition for review on certiorari on the following assigned errors:
I.
THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY
ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT
UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE
RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON
ISSUANCE OF APPOINTMENTS.
II.
THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING
THAT THE PARTICULAR GROUNDS NAMELY:
I.

No screening process and no criteria were adopted by the Personnel Selection Board in
nominating the respondents;

II.

No posting in three (3) conspicuous public places of notice of vacancy as required by

the rules and the law;

III.

Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;

IV.

Petitioner has valid grounds to recall the appointments of respondents.

ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS BY
THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND REGULATIONS ON
ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE RESPONDENT CIVIL SERVICE
COMMISSION.
Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to law and
not being supported by the evidence on record.
This argument is too specious to be given credence. The records reveal that when the petitioner
brought the matter of recalling the appointments of the fourteen (14) private respondents before the
CSC, the only reason he cited to justify his action was that these were midnight appointments that are
forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so,
that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law
that prohibits local elective officials from making appointments during the last days of his or her
tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who made
the appointments. Neither did he allege that the said appointments were tainted by irregularities or
anomalies that breached laws and regulations governing appointments. His solitary reason for recalling
these appointments was that they were, to his personal belief, midnight appointments which the
outgoing mayor had no authority to make.
Even in petitioners consolidated appeal and motion for reconsideration, he did not make any assertion
that these appointments were violative of civil service rules and procedures. Indeed, he harped on the
CSCs alleged lack of jurisdiction to refuse to recall the subject appointments. After first invoking the
authority of the CSC to approve or affirm his act, he then contradicted himself by arguing that the CSC
had no jurisdiction to do so, but only after the CSC had ruled that the recall was without legal basis.
He emphasized that he alone has sole discretion to appoint and recall the appointment of municipal
employees, an authority which, he stressed, the CSC cannot usurp. Yet, nowhere in said pleading did
he cite any other ground, much less present proof that would warrant the recall of said appointments.
Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a supplement to the
appeal and motion for reconsideration where, for the very first time, he alleged that the appointments
were fraught with irregularities for failing to comply with CSC rules and regulations. Nevertheless, the
CSC overruled petitioners assertions, holding that no new evidence had been presented to warrant a
reversal of its earlier resolution.
Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSCs conclusion
because it had ignored the allegations and documents he presented in the supplement to his earlier
consolidated appeal and motion for reconsideration. He argued that these form part of the records of
the case and that the CSC erred in failing to consider the assertions he raised therein. The appellate
court, however, agreed with the CSC when it ruled that the documents presented by petitioner in the
supplemental pleading did not constitute new evidence that would convince the CSC to reverse its
earlier ruling. In fine, the Court of Appeals, as did the CSC, simply dismissed petitioners allegations
and documents attached to the supplemental pleading for they did not constitute new evidence that a
court, board or tribunal may entertain.
Herein lies the inconsistency of petitioners arguments. He faults the Court of Appeals and the CSC for
ignoring his supplemental pleading, while at the same time arguing that the grounds for recall such as
violations of laws and regulations on issuance of appointments are not new issues because he had

timely raised them before the CSC.

There is no question that parties may file supplemental pleadings to supply deficiencies in aid of an
original pleading, but which should not entirely substitute the latter.[9] The propriety and substance of
supplemental pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of Civil Procedure,
which provides:
Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the pleading sought to be supplemented.
The adverse party may plead thereto within ten (10) days from notice of the order admitting the
supplemental pleading.
Supplemental pleadings must be with reasonable notice, and it is discretionary upon the court or
tribunal to allow the same or not. Thus, the CSC was under no obligation to admit the supplemental
pleading, or even to consider the averments therein.
Secondly, a supplemental pleading must state transactions, occurrences or events which took place
since the time the pleading sought to be supplemented was filed. In the instant case, petitioner alleged
fraud and irregularities that supposedly occurred contemporaneous to the execution of the
appointments. They should have been raised at the very first opportunity. They are not new events
which petitioner could not have originally included as grounds for the recall of the appointments.
Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his supplemental
pleading did not constitute new evidence that can be the proper subject of a supplemental pleading.
These were old facts and issues which he failed to raise earlier. Consequently, the CSC and the Court
of Appeals did not err in refusing to give credence to the supplemental pleading.
Be that as it may, these alleged irregularities were considered by the CSC and the Court of Appeals as
new issues which were raised for the first time on appeal. It is rather too late for petitioner to raise
these issues for the first time on appeal. It is well-settled that issues or questions of fact cannot be
raised for the first time on appeal.[10] We have consistently held that matters, theories or arguments not
brought out in the original proceedings cannot be considered on review or appeal where they are raised
for the first time.[11] To consider the alleged facts and arguments raised belatedly in the supplemental
pleading to the appeal at this very late stage in the proceedings would amount to trampling on the basic
principles of fair play, justice and due process.[12]
The grounds for the recall of the appointments that petitioner raised in his supplemental pleading to the
consolidated appeal and motion for reconsideration are that: (1) the rules on screening of applicants
based on adopted criteria were not followed; (2) there was no proper posting of notice of vacancy; and
(3) the merit and fitness requirements set by the civil service rules were not observed. These are
grounds that he could have stated in his order of recall, but which he did not. Neither did he raise said
grounds in his original appeal, but only by way of a supplemental pleading. Failure of the petitioner to
raise said grounds and to present supporting documents constitute a waiver thereof, and the same
arguments and evidence can no longer be entertained on appeal before the CSC, nor in the Court of
Appeals, and much less in a petition for review before the Supreme Court.[13] In fine, the raising of
these factual issues for the first time in a pleading which is supplemental only to an appeal is barred by
estoppel.[14]

Petitioner asks this Court to appreciate and consider these factual issues. It must be recalled that the
jurisdiction of the Supreme Court in a petition for review on certiorari under Rule 45 of the Revised
Rules of Court is limited to reviewing only errors of law, not of fact.[15] That is, of course, unless the
factual findings assailed by petitioner are devoid of support by the evidence on record or the impugned
judgment is based on a misapprehension of facts.[16]
A thorough perusal of the records reveal that the CSCs ruling is supported by the evidence and the
law. The fourteen (14) employees were duly appointed following two meetings of the Personnel
Selection Board held on May 31 and June 26, 1995. There is no showing that any of the private
respondents were not qualified for the positions they were appointed to. Moreover, their appointments
were duly attested to by the Head of the CSC field office at Lucena City. By virtue thereof, they had
already assumed their appointive positions even before petitioner himself assumed his elected position
as town mayor. Consequently, their appointments took effect immediately and cannot be unilaterally
revoked or recalled by petitioner.
It has been held that upon the issuance of an appointment and the appointees assumption of the
position in the civil service, he acquires a legal right which cannot be taken away either by revocation
of the appointment or by removal except for cause and with previous notice and hearing.[17]
Moreover, it is well-settled that the person assuming a position in the civil service under a completed
appointment acquires a legal, not just an equitable, right to the position. This right is protected not only
by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the
appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice
and hearing.[18]
Petitioner admits that his very first official act upon assuming the position of town mayor was to issue
Office Order No. 95-01 which recalled the appointments of the private respondents. There was no
previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in
undue haste to remove the private respondents without regard for the simple requirements of due
process of law. In doing so, he overstepped the bounds of his authority. While he argues that the
appointing power has the sole authority to revoke said appointments, there is no debate that he does not
have blanket authority to do so. Neither can he question the CSCs jurisdiction to affirm or revoke the
recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code
specifically provides that an appointment accepted by the appointee cannot be withdrawn or revoked
by the appointing authority and shall remain in force and in effect until disapproved by the
Commission. Thus, it is the CSC that is authorized to recall an appointment initially approved, but
only when such appointment and approval are proven to be in disregard of applicable provisions of the
civil service law and regulations.[19]
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect
immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties
of the position, he shall be entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission. The appointment shall remain effective until disapproved by the
Commission. In no case shall an appointment take effect earlier than he date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of
the following grounds:
(a)

Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;

(b)

Failure to pass through the agencys Selection/Promotion Board;

(c)
Violation of the existing collective agreement between management and employees relative to
promotion; or
(d)

Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited
grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were
midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on socalled midnight appointments, specifically those made within two (2) months immediately prior to
the next presidential elections, applies only to the President or Acting President.
If ever there were other procedural or legal requirements that were violated in implementing the
appointments of the private respondents, the same were not seasonably brought before the Civil Service
Commission. These cannot be raised for the first time on appeal.
WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and the
Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions Nos. 962828 and 96-7527 is hereby AFFIRMED in toto.

EN BANC

[G.R. No. 122197. June 26, 1998]

ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON AUDIT, respondent.
DECISION
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated
September 7, 1995,[1] the dispositive portion of which reads, to wit:
Foregoing premises considered, the instant appeal cannot be given due course.
Accordingly, the disallowance in question in the total amount of P52,908.00 is hereby
affirmed. Considering that the claim for the RATA differential in the amount of P8,400.00 is

devoid of any legal basis, the same is also disallowed. Hence, appellant Zosimo M.
Dimaandal is hereby directed to refund the salary and RATA differential in the amount of
P61,308.00 he had received from the Provincial Government of Batangas. [2]
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply
Officer III, was designated Acting Assistant Provincial Treasurer for Administration by then
Governor Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner filed a claim
for the difference in salary and Representation and Transportation Allowance (RATA) of
Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total
amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was
allowed was only the amount of P8,400.00 which corresponds to the difference in the
allowances attached to the designation and the position occupied by the appellant. The
disallowance was premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the
instant case as the power to fill the position of Assistant Provincial Treasurer rests on the
Secretary of Finance.
2. The designation is temporary in nature and does not amount to the issuance of an
appointment as could entitle the designee to receive the salary of the position to which he is
designated (Opinion of the Director, Office for Legal Affairs, Civil Service Commission dated
January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration
of the subject disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as
the same provides that the Governor General or the officer having the power to fill-up a
temporary absence or disability in the provincial office has the power to order or authorize
payment of compensation to any government officer or employee designated or appointed
temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant Provincial
Treasurer for Administration was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for
Administration was no longer performing the duties and functions of Supply Officer III."
The Provincial Auditor, however, denied the request for reconsideration. Appellant was
required to refund the amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained the stand of the
Provincial Auditor of Batangas as valid and proper. The respondent Commission was of the
view that the petitioner was merely designated as an Assistant Provincial Treasurer for

Administration in addition to his regular duties. As such, he is not entitled to receive an

additional salary. The Commission further opined that petitioner was likewise not entitled to
receive the difference in RATA provided for under the Local Budget Circular issued by the
Department of Budget and Management considering that the party designating him to such
position is not the duly competent authority, provided for under Section 471 of the Local
Government Code. Notably, petitioner was appointed as Assistant Provincial Treasurer for
Administration by the Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of the amount of
P52,908.00 but likewise disallowed the claim for the RATA differential in the amount of
P8,400.00, for being devoid of any legal basis. Petitioner was, therefore, directed to refund
the salary and RATA differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting capacity is
entitled to the difference in salary between his regular position and the higher position to
which he is designated.
Petitioner avers that the respondent Commissions decision is probably not in accordance
with applicable decisions of the Supreme Court.[3] He cites the cases of Cui, et. al. vs. Ortiz,
et. al.,[4] April 29, 1960; and, Menzon vs. Petilla, May 20, 1991,[5] which laid down the rule
that de facto officers are entitled to salary for services actually rendered. Petitioner contends
that he may be considered as a de facto officer by reason of services rendered in favor of the
Province of Batangas. He then posits the view that to disallow his compensation and in the
process allow the Province of Batangas to keep and enjoy the benefits derived from his
services actually rendered would be tantamount to deprivation of property without due
process of law, and impairment of obligation of contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the Solicitor General,
maintains that the decisions cited by petitioner do not find application in petitioners case. In
the case of Menzon, what was extended was an appointment to the vacant position of ViceGovernor. Here, what was extended to petitioner was not an appointment but a mere
designation. Thus, the nature of petitioners designation and in the absence of authority of
the Governor to authorize the payment of the additional salary and RATA without the
appropriate resolution from the Sangguniang Panlalawigan does not make the ruling on de
facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he could still claim the salary and RATA
differential because he actually performed the functions pertaining to the office of Acting
Assistant Provincial Treasurer and, therefore, entitled to the salary and benefits attached to it
despite the fact that the Governor of Batangas had no authority to designate him to the said
position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government
Code which mandates that:

Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be appointed by the
Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the
governor or mayor, subject to civil service law, rules and regulations.
xxx

xxx

xxx

In fact, the appointing officer is authorized by law to order the payment of compensation to
any government officer or employee designated or appointed to fill such vacant position, as
provided under Section 2077 of the Revised Administrative Code which states that:
"Section 2077. Compensation for person appointed to temporary service.
xxx

xxx

xxx

In case of the temporary absence or disability of a provincial officer or in case of a vacancy in

a provincial office, the President of the Philippines or officer having the power to fill such
position may, in his discretion, order the payment of compensation, or additional
compensation, to any Government officer or employee designated or appointed temporarily to
fill the place, but the total compensation paid shall not exceed the salary authorized by law for
the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even
designate one temporarily in cases of temporary absence or disability or a vacancy in a
provincial office. That power resides in the President of the Philippines or the Secretary of
Finance.
Necessarily, petitioners designation as Assistant Provincial Treasurer for Administration by
Governor Mayo being defective, confers no right on the part of petitioner to claim the
difference in the salaries and allowances attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a designation not
an appointment. The respondent Commission clearly pointed out the difference between an
appointment and designation, thus:
There is a great difference between an appointment and designation. While an appointment
is the selection by the proper authority of an individual who is to exercise the powers and
functions of a given office, designation merely connotes an imposition of additional duties,
usually by law, upon a person already in the public service by virtue of an earlier appointment
(Santiago vs. COA, 199 SCRA 125).
Designation is simply the mere imposition of new or additional duties on the officer or
employee to be performed by him in a special manner. It does not entail payment of
additional benefits or grant upon the person so designated the right to claim the salary
attached to the position (COA Decision No. 95-087 dated February 2, 1995). As such, there
being no appointment issued, designation does not entitle the officer designated to receive
the salary of the position. For the legal basis of an employees right to claim the salary
attached thereto is a duly issued and approved appointment to the position (Opinion dated
January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos,

A. Jr., Designation).[6]
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the construction given by the
agency or entity charged with the enforcement of a statute should be given great weight and
respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the case at
bar, has been uniform, and consistent, and has been observed and acted on for a long period
of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar
Central vs. Collector of Customs, 51 Phil. 143).[7]
We see no justifiable reason to sustain petitioners argument that non-payment of his salary
differential and RATA would be a violation of his constitutional right against deprivation of
property without due process of law and the non-impairment of obligation of contracts clause
in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the assumption that
the appointment or designation thereof was made in accordance with law. Considering that
petitioners designation was without color of authority, the right to the salary or an allowance
due from said office never existed. Stated differently, in the absence of such right, there can
be no violation of any constitutional right nor an impairment of the obligation of contracts
clause under the Constitution.
The nature of petitioners designation and the absence of authority of the Governor to
authorize the payment of the additional salary and RATA without the appropriate resolution
from the Sangguniang Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having colorable
authority to appoint, if the office is an appointive office, and whose appointment is valid on its
face. It is likewise defined as one who is in possession of an office, and is discharging its
duties under color of authority, by which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent be not a mere volunteer.[8] Then a de
facto officer is one who is in possession of an office in the open exercise of its functions under
color of an election or an appointment, even though such election or appointment may be
irregular.[9]
Petitioner invokes in his favor the ruling in Menzon vs. Petilla,[10] that a de facto officer is
entitled to receive the salary for services actually rendered. However, his reliance on the
Menzon case is misplaced. In Menzon, what was extended was an appointment to the
vacant position of Vice-Governor, in petitioners case, he was designated. The appointment
of Menzon had the color of validity. This Court said:
And finally, even granting that the President, acting through the Secretary of Local
Government, possesses no power to appoint the petitioner, at the very least, the petitioner is
a de facto officer entitled to compensation. There is no denying that the petitioner assumed
the Office of the Vice-Governor under a color of a known appointment. As revealed by the
records, the petitioner was appointed by no less than the alter ego of the President, The
Secretary of Local Government, after which he took his oath of office before Senator Alberto

Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does not apply in petitioners case. In
Cui, this Court held:
Petitioners appointments on December 1 and 12, 1955 by the then mayor of the municipality
were legal and in order, the appointing mayor still in possession of his right to appoint. For
such appointments to be complete, the approval of the President of the Philippines is
required. The law provides that pending approval of said appointment by the President, the
appointee may assume office and receive salary for services actually rendered. Accordingly,
therefore, in that duration until the appointment is finally acted upon favorably or unfavorably,
the appointees may be considered as de facto officers and entitled to salaries for services
actually rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July
8, 1994. Petitioners claim that the appointment retro-acts to his assumption of office is not
confirmed by the express phraseology of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na
may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF
BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED
TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin
subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority. [12]
The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify
petitioners retention of the excess amount of P61,308.00, which corresponds to the amount
disallowed and ordered refunded by COA representing the salary and RATA in excess of
what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.

PANDI V. CA380 SCRA 436CARPIO, April 11, 2002NATURE

Petition for Review on Certiorari under Rule 45

FACTS
- August 9, 1993: Dr. Macacua, Regional Director &
Sec. of Health of the DOH-ARMM
issued aMemorandum designating
Dr. Pandi (
then DOH-ARMM Assistant Regional Secretary
)
, as OIC of the IPHO-APGH in Lanao del Sur. Dr. Macacua also designated
Dr. Sani
(then the Provincial health officer of theIPHO-APGH) to the DOH-ARMM Regional Office.- September 15, 1993:
Lanao del Sur Provincial Governor issued Office Order NO. 07 designating
Dr.Saber
as the OIC of the IPHO-APGH, Lanao del Sur.Dr. Sani
challenged the Memorandum transferring him in a complaint filed with the RTC claiming thereinthat he was appointed as
provincial health officer of the IPHO-APGH in a permanent capacity.Dr. Saber
filed a petitioner for quo warranto with a prayer for preliminary injunction, claiming that he islawfully designated OIC of
IPHO-APGH, Lanao del Sur. The CA issued a TRO enjoining Pandi from furtherdischarging his functions as OIC of the
IPHO-APGH.Dr. Sani
filed a Motion for Intervention.- November 6, 1993: After President Ramos issued E.O. 133 transferring the powers &
functions of he DOHin the region to the Regional Government of ARMM, Dr. Macacua (as DOH-ARMM Sec.Designate) issued a2nd Memorandum
reiterating the designation of Dr. Pandi as OIC of the IPHO-APGH and thedetail of Dr. Sani to the
Regional office in Cotabato City.
-Drs. Pandi & Macacua sought the dismissal of Dr. Sabers petitioner on the ground that the issues thereinhad become
moot & academic because of the enactment of the ARMM Local Government Code, as well asthe execution of the
Memo of agreement between the DOH-National Government and the ARMM RegionalGovernment.
-CA:
designation of Dr. Saber as OIC of IPHO-APGH upheld; the Provincial Governor has the power toappoint the provincial
health officer under the LGC of 1991; Dr. Sani cannot claim to have permanentdesignation as provincial health officer
because he was not appointed by the Provincial Governor.
ISSUE
WON the Provincial Governor can designate the OIC of the IPHO-APGH (WON the appointment of Saber isvalid)
at that time
HELD
(NOTE: MAY MAHABANG HISTORY PART SA ORIGINAL CASE. Just see the case)
NO.
Reasoning.
When Saber was appointed by the provincial governor on September 15, 1993, the provincialhealth officer of Lanao del
Sur was still a national government official paid entirely from national funds. The provincial health officer was still
appointed by the national Secretary of Health to a region and not to aprovince. The Secretary of Health exercised
supervision and control over the provincial health officer. TheSecretary of Health was also the official authorized by law
to assign the provincial health officer to anyprovince within the region. Indisputably, on September 15, 1993, Provincial
Governor Mutilan had nopower to designate Saber as Officer-in-Charge of IPHO-APGH, Lanao del Sur. Consequently,
the designationof Saber as such Officer-in-Charge is void.- The provincial health officer of Lanao del Sur became a
provincial government official only after theeffectivity of the ARMM Local Code, which was enacted by the Regional
Assembly on January 25, 1994 andapproved by the Regional Governor on March 3, 1994. Prior to the ARMM Local

Code but after the issuanceof Executive Order No. 133, the Regional Governor appointed the provincial health officer
while theRegional Secretary of Health could assign the provincial health officer to any province within the ARMM. The
Provincial Governor had no power to appoint or even designate the Officer-in-Charge of the provincialhealth office.
-on reliance on Section 478, LGC:
misplaced; not a grant of powers to governors and mayors to appointlocal health officers but simply a directive that those
empowered to appoint local health officers aremandated to do so; LGC did not amend the Organic Act of 1989
-as regards SANI:
his first appointment was void. When he was detailed in Cotabato City, the powers andfunctions of the DOH were not yet
transferred to the Regional Government, and the Secretary of Health of the National Government still exercised the
power to assign the provincial health officers in the ARMM. Thus, the regional Director/ARMM Secretary of Healths
directive assigning Sani to Regional Office inCotabato City is void. As regards the November 6, 1993 Memorandum
reiterating Sanis detail, since it wasissued after the issuance of EO 133 which expressly transferred supervision and
control over all functionsand activities of the Regional Department of Health to the Head of the Regional Department of
Health, andsince it is within the authority of the ARMM Secretary of Health, it is valid.-as regards Pandi: August 9, 1993
designation by the ARMM Secretary of Health is VOID since at that time,the latter did not exercise yet supervision and
control over the provincial health offices of the ARMM.However, November 6, 1993 designation is valid. The
designation of Pandi as OIC, however, while valid isonly temporary in nature, good until a new designation or a
permanent appointment is made.
-As Regional Secretary of Health, Macacua was, as of November 6, 1993, the official vested by law toexercise
supervision and control over all provincial health offices in the ARMM. The Regional Secretary, byvirtue of Executive
Order No. 133, assumed the administrative powers and functions of the Secretary of Health of the National Government
with respect to provincial health offices within the ARMM. The officialexercising supervision and control over an office
has the administrative authority to designate, in theinterest of public service, an Officer-in-Charge if the office becomes
vacant. Macacua, therefore, had theauthority on November 6, 1993 to designate an Officer-in-Charge in the provincial
health office of Lanaodel Sur pending the appointment of the permanent provincial health officer. After the effectivity of
theARMM Local Code, the Regional Secretary of Health lost the authority to make such a designation.-Under the
ARMM Local Code, the provincial health officer became for the first an official of the provincialgovernment even though
he is appointed by the Regional Governor and draws his salary from regionalfunds. The ARMM Local Code vests in the
Provincial Governor the power to "exercise general supervisionand control over all programs, projects, services, and
activities of the provincial government." Upon theeffectivity of the ARMM Local Code, the power of supervision and
control over the provincial health officerpassed from the Regional Secretary to the Provincial Governor. From then on the
Provincial Governorbegan to exercise the administrative authority to designate an Officer-in-Charge in the provincial
healthoffice pending the appointment of a permanent provincial health officer.
Disposition.
WHEREFORE, the petition is GRANTED and the assailed decision of the Court of Appealsdated April 15, 1994 in CAG.R. SP No. 32242 is SET ASIDE. The designation on September 15, 1993 of Dr.Amer A. Saber as Officer-in-Charge
of the Integrated Provincial Health Office of Lanao del Sur is declaredvoid. On the other hand, the designation on
November 6, 1993 of Dr. Lampa I. Pandi as Officer-in-Chargeof the Integrated Provincial Health Office of Lanao del
Sur, and the assignment on November 6, 1993 of Dr.Mamasao Sani to the DOH-ARMM Regional Office in Cotabato
City, are declared valid. No costs. SOORDERED

THIRD DIVISION

[G.R. No. 132413. August 27, 1999]

RAMON ALQUIZOLA, SR., MARISSA C. DOROMAL and ADELO SECO, petitioners, vs.
GALLARDO OCOL, CAMILO P. PENACO, SATURNINO MENDOZA, RAFAEL R. ARDIENTE,
VICENTE C. CASERES, RICARDO B. ZOSA III and SIRAD M. UMPA, respondents.
DECISION
VITUG, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking a
reversal of the decision, dated 19 November 1997, of the Regional Trial Court of Lanao Del Norte,
Branch 04, Iligan City, that has ordered petitioner Ramon Alquizola, Sr., to cease and desist from
dismissing respondents and replacing them with his co-petitioners.
Petitioner Ramon Alquizola, Sr., won the post of Punong Barangay of Barangay Tubod, Iligan City, in
the 12th May 1997 barangay elections. Respondents Gallardo Ocol, Camilo Penaco, Saturnino
Mendoza, Rafael Ardiente, Vicente Caseres, Ricardo Zosa III, and Sirad Umpa were appointees of the
former punong barangay of Barangay Tubod, the first two occupying the positions of barangay
treasurer and barangay secretary, respectively, with the rest being barangay utility workers.
After the elections, petitioner Alquizola terminated the services of respondents and appointed his copetitioners, Marissa Doromal and Adelo Seco, respectively, as barangay treasurer and as barangay
secretary. In consonance with Section 394 and Section 395 of the Local Government Code, he
submitted both appointments to the Sangguniang Barangay for approval. The Sanggunian rejected the
appointments.
Following the action taken by the Sangguniang Barangay, respondents filed a complaint for quo
warranto, mandamus and prohibition with the Regional Trial Court of Lanao Del Norte to enjoin
petitioner from terminating the services of the former. The trial court found in favor of respondents
and ordered petitioner Ramon Alquizola, Sr., to cease and desist from dismissing respondents on the
ground that their dismissal had been effected without the corresponding approval of the Sangguniang
Barangay. It held that Section 389(b)(5) limited the power of a barangay captain to remove appointive
barangay officials by requiring an approval of such act by a majority of the Sangguniang Barangay. A
motion for reconsideration was denied.
The Court finds no merit in the instant petition for certiorari.
The issue involved, purely a question of law, relates to the proper application of the following
provisions of the Local Government Code; viz:
Section 389. Chief Executive: Powers, Duties, and Functions. x x x
(b) For efficient, effective and economical governance, the purpose of which is the general welfare of
the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall:

x x x x x x

xxx

(5) Upon approval by a majority of all the members of the sangguniang barangay, appoint or replace
the barangay treasurer, the barangay secretary, and other appointive barangay officials;
The term replace would obviously embrace not only the appointment of the replacement but also the
prior removal of, or the vacation by, the official currently occupying the appointive position concerned.
To replace is to take the place of, to serve as a substitute for or successor of, to put in place of, or to
fill the post of an incumbent.[1] In order to provide a replacement to an office, the prior holder must
have first been removed or the office must have, otherwise, been previously rendered vacant.
Aside from what may be implicit in Section 389, there is no other provision in the Local Government
Code that treats of the power of the Punong Barangay to remove the barangay secretary, the barangay
treasurer, or any other appointive barangay official from office. The duration of the term of office of
these barangay officials have not been fixed by the Local Government Code. Where the tenure of the
office is not fixed by law, it is a sound and useful rule to consider the power of removal as being an
incident to the power of appointment.[2] Elsewise stated, the power to remove is deemed implied in the
power to appoint.
The Code explicitly vests on the punong barangay, upon approval by a majority of all the members of
the sangguniang barangay, the power to appoint or replace the barangay treasurer, the barangay
secretary, and other appointive barangay officials. This provision is reinforced, in the case of the
secretary and the treasurer, by the provisions of Section 394 and Section 395 of the Local Government
Code; to wit:
Section 394. Barangay Secretary: Appointment, Qualifications, Powers and Duties. - (a) The
barangay secretary shall be appointed by the punong barangay with the concurrence of the majority of
all the sangguniang barangay members. The appointment of the barangay secretary shall not be subject
to attestation by the Civil Service Commission.
Section 395. Barangay Treasurer: Appointment, Qualifications, Powers and Duties. - (a) The
barangay treasurer shall be appointed by the punong barangay with the concurrence of the majority of
all the sangguniang barangay members. The appointment of the barangay treasurer shall not be subject
to attestation by the Civil Service Commission.
Verily, the power of appointment is to be exercised conjointly by the punong barangay an a majority of
all the members of the sangguniang barangay. Without such conjoint action, neither an appointment
nor a replacement can be effectual.
Applying the rule that the power to appoint includes the power to remove, one that the Court finds no
cogent reason to now depart from, the questioned dismissal from office of the barangay officials by the
punong barangay without the concurrence of the majority of all the members of the Sangguniang
Barangay cannot be legally justified. To rule otherwise could also create an absurd situation of the
Sangguniang Barangay members refusing, like here, to give their approval to the replacements selected
by the punong barangay who has unilaterally terminated the services of the incumbents. It is likely
that the legislature did not intend this absurdity to flow from its enactment of the law.

WHEREFORE, the instant petition is DENIED and the decision, dated 19 November 1997, of the
Regional Trial Court of Lanao Del Norte is AFFIRMED. No costs.
SO ORDERED.

EN BANC
[G.R. No. 158737. August 31, 2004]
CIVIL SERVICE COMMISSION, petitioner, vs. SATURNINO DE LA CRUZ, respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 45 of the Revised Rules of Court, seeking to review
and set aside the May 14, 2003 decision[1] and June 17, 2003 resolution[2] of the Court of Appeals in
CA-G.R. SP No. 54088, entitled Saturnino de la Cruz vs. Civil Service Commission. In that decision,
the appellate court set aside CSC Resolution Nos. 98-2970 and 99-1451, consequently approving
Saturnino de la Cruz appointment as Chief of the Aviation Safety Regulation Office.
The pertinent facts,[3] as narrated by the Office of the Solicitor General, follow.
Respondent Saturnino de la Cruz is an employee of the Air Transportation Office, DOTC, presently
holding the position of Chief Aviation Safety Regulation Officer of the Aviation Safety Division.
Respondent was promotionally appointed to the said position on November 28, 1994, duly attested by
the Civil Service Commission (CSC). But prior thereto, he was a Check Pilot II in the Air
Transportation Office (ATO).
In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security Division of the ATO
formally filed with the Department of Transportation and Communication (DOTC) her protest against
the promotional appointment of respondent as Chief Aviation Safety Regulation Officer, claiming
among others that respondent did not meet the four-year supervisory requirement for said position.
On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a decision finding the protest without
merit.
Apparently dissatisfied, Calamba appealed the decision of the DOTC Secretary to the CSC-NCR.
Under date of October 17, 1995, Director Nelson Acebedo of CSC-NCR requested ATO Executive
Director Manuel Gilo to comment on the appeal and to submit to the CSC-NCR the documents
pertinent thereto.

Since the CSC-NCR received no action on said request for comment, the CSC-NCR again wrote
Director Gilo regarding the matter on May 5, 1997. But to no avail.
On October 14, 1997, for the last time, the CSC-NCR reiterated to Director Gilo its request for
comment.
On November 18, 1997, the CSC-NCR rendered its decision upholding the protest of Calamba and
recalling the approval of respondents appointment as Chief Aviation Safety Regulation Officer. Said
the CSC-NCR:
After an initial evaluation of the protest, we find that the only issue to be resolved is whether or not
the protestee meets the minimum experience requirements as of the date of the protestees appointment
to the contested position. The contested position requires four years of work experience in position/s
involving management per Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or
four years of experience in planning, organizing, directing, coordinating and supervising the
enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all
airmen and mechanics and regulation of the activities of flying schools per ATO Qualification
Standards xxx.
xxx

xxx

xxx

Taking into account his previous positions, Mr. dela Cruz could not have exercised managerial or
supervisory functions for the required number of years. x x x. Moreover, vis--vis the experience
requirements of the approved ATO Qualification Standards, Mr. dela Cruz work experience prior to
his appointment to the contested position did not concur therewith.
We are of the view therefore, that experience-wise, Mr. dela Cruz did not meet the requirements of the
contested position as of the date of his appointment thereto.
xxx

xxx

xxx.

Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for the suspension
of the order recalling respondents appointment, citing several reasons in support thereof.
Subsequently, a Manifestation with Motion to Admit Addendum dated December 22, 1997 was filed by
Director Gilo with the CSC-NCR. Director Gilo argued that Calamba had no legal personality to file a
protest because she is not a qualified next-in-rank and that the protest was filed out of time. He
likewise asserted that respondent had fully met the qualifications required of the position.
On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason to disturb earlier
rulings on the matter. He also denied ATO Director Gilos request, for lack of merit.
Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted Director Gilos
request and affirmed the approval of respondents appointment as Chief Aviation Safety Regulation
Officer. He said:
xxx

xxx

xxx.

We reviewed again the documents including the Office Orders designating protestant dela Cruz to
supervisory position which were obviously issued during the latter part of 1993. A liberal
consideration thereof would come up with a little over one year of supervisory and managerial
experience. Certainly, he was short of the required number of years of work experience for the
contested position as of the date of the issue of his appointment. Nevertheless, considering that Mr.
dela Cruz has already in his favor at least four years of continuous supervisory/managerial experience
from his designation as Acting Chief of the Aviation Safety Regulation Division, supervened by his
permanent appointment thereto as Chief thereof in November 28, 1994, up to present, he has
substantially satisfied the four years experience required for appointment to the contested position.
xxx

xxx

xxx.

In a letter dated January 26, 1998, Calamba requested the CSC to implement the January 5, 1998 ruling
of the CSC-NCR.
When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo explained that
the January 5, 1998 ruling is unofficial and inexistent.
The CSC treated Calambas request as an appeal. On November 13, 1998, the CSC rendered its
Resolution No. 98-2970, the decretal portion of which reads:
WHEREFORE, the appeal of Annabella A. Calamba is hereby granted. The appointment of Saturnino
De la Cruz as Chief Aviation Regulation Officer is disapproved. De la Cruz is hereby reverted to his
former position.
xxx

xxx

xxx.

Acting on the request for reconsideration filed by respondent, the CSC rendered its Resolution No. 991451 on July 6, 1999, the dispositive portion of which reads:
WHEREFORE, the instant motion for reconsideration of Saturnino dela Cruz is hereby denied.
Accordingly, CSC Resolution No. 98-2970 dated November 13, 1998 stands.
On August 11, 1999, respondent filed a petition for review with the Court of Appeals, docketed as CAG.R. SP No. 54088, seeking to nullify CSC Resolution Nos. 98-2970 and 99-1451.
In a decision[4] dated March 14, 2003, the Court of Appeals granted the petition by setting aside CSC
Resolution Nos. 98-2970 and 99-1451 and approving respondents appointment as Chief of the
Aviation Safety Regulation Office.
Petitioners motion for reconsideration was subsequently denied in a resolution issued on June 17,
2003.
Hence, the instant petition for review.
Petitioner contends that the appellate court erred in approving respondents appointment as Chief
Aviation Safety Regulation Officer despite his failure to meet the minimum four-year managerial and

supervisory qualification for the position. It further contends that respondents completion of the
required experience during the pendency of the present case cannot be counted in his favor because
compliance with the prescribed mandatory requirements should be as of the date of issuance of the
appointment and not the date of approval by the CSC or the resolution of the protest against the
appointment.
The petition lacks merit.
Contrary to petitioners contention, respondent has sufficiently complied with the required experience
standards.
First, upon the issuance of respondents appointment on November 28, 1994, the qualification
standards of the DOTC for the position of Chief Aviation Safety Regulation Officer were as follows:
EDUCATION:Bachelors Degree related to AviationEXPERIENCE:4 years of experience in planning,
organizing, directing, coordinating, and supervising the enforcement of air safety laws, rules, and
regulations pertaining to licensing, rating and checking of all airmen and mechanics and the regulation
of the activities of flying schools.
License required: Airline Transport Rating / Flight Operations Officer / Aircraft Maintenance Engineer
(A&P) License / Flight Engineer License TRAINING:In-service training in management; specialized
course in aircraft maintenance / air carrier operations/ flight dispatching/ aircraft accident investigation/
equipment qualification course / flight training (local & abroad)ELIGIBILITY:Relevant RA 1080
Career Service Prof. 1st Grade
Relevant Eligibility for Second Level Position[5] As noted by the CSC-NCR,[6] the contested position
required four years of work experience in managerial position(s) per the Qualification Standards
Manual prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing,
directing, coordinating and supervising the enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities
of flying schools per the above-stated ATO-DOTC Qualification Standards.
Petitioners insistence that respondent failed to meet the four-year managerial and supervisory
experience requirement is misplaced. It is a well-settled rule in statutory construction that the use of
the term and/or means that the word and and the word or are to be used interchangeably.[7] The
word or is a disjunctive term signifying dissociation and independence of one thing from another.[8]
Thus, the use of the disjunctive term or in this controversy connotes that either the standard in the
first clause or that in the second clause may be applied in determining whether a prospective applicant
for the position under question may qualify.
Respondent would indeed lack the required years of work experience to qualify for the contested
position if the managerial standards in the first clause above were to be strictly followed. At the time of
his permanent appointment on November 28, 1994 as Chief Aviation Safety Regulation Officer,
respondent had a little over one year of managerial experience from his designation as Acting Chief of
the Aviation Safety Division during the latter part of 1993. However, the work already rendered by
respondent in the ATO at the time of his appointment was well within the supervisory standard in the
second clause. Planning, organizing, directing, coordinating and supervising the enforcement of air
safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and

mechanics and regulation of the activities of flying schools were part of the work performed by
respondent for more than 13 years prior to his appointment.
Before respondent was appointed to the contested position, he had held several other positions in the
ATO, namely:
March 6, 1981 to July 15, 1981
July 16, 1981 to February 5, 1983Supply Checker
Junior Aeronautical EngineerFebruary 6, 1983 to February 29, 1984Air Carrier Safety InspectorMarch
1, 1984 to February 28, 1987
March 1, 1987 to November 27, 1994
November 28, 1994 to dateCheck Pilot I
Check Pilot II
Chief Aviation Safety Regulation Officer[9]These positions, spanning more than 13 years, in four of the
five sections of the Aviation Safety Division of the ATO definitely met the minimum supervisory
experience required of respondent for the position.
In Rapisora vs. Civil Service Commission,[10] this Court held that the rule that appointees must possess
the prescribed mandatory requirements cannot be so strictly interpreted as to curtail an agencys
discretionary power to appoint, as long as the appointee possesses other qualifications required by law.
The appellate court was therefore correct in setting aside the assailed CSC resolutions and considering
the respondents total work experience as sufficient to meet the supervisory standards under the second
clause, thereby finding respondent qualified for appointment to the contested position.
Second, respondents promotional appointment was issued in accordance with petitioners selection
process. Respondent passed the rigid screening of the ATO Personnel Selection/Promotion Board as
well as the oral and written examinations of the DOTC Selection Board.
DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:
1.
Capt. dela Cruz has been with the Air Transportation Office for more than 13 years already and
during such period, he faithfully and efficiently (served in) four of the five sections of the Aviation
Safety Division of which the position under consideration is the head, thereby gaining more varied
experience and working knowledge of the most important and sensitive functions of the Division over
other applicants;
2.
The recommendee always performs his assigned tasks promptly with dedication, integrity, high
sense of responsibility and professionalism which he had demonstrated when he established and
developed the Airport Crash Rescue Organization (ACRO) procedure to various national airports of the
country, and when he organized the Air Transportation Office (ATO) Operations Center which is now
on a 24-hour operation and serving as the nerve center of this Office;

3.
He is a dedicated public servant and is always willing to respond to call of duty even beyond
office hours like when he is flying the ATOs aircraft for navigation aide check during holidays and
weekends, aside from conducting checkride to airmen prior to issuance of the pilot license;
4.
Capt. dela Cruz is an outstanding team worker as well as a leader and promotes enthusiasm
among co-workers. He handles all areas of job with minimal supervision and accomplishes objectives
efficiently. He accepts stress situations and performs extremely well.[11]
Because of respondents excellent credentials, DOTC Assistant Secretary for Administrative and Legal
Affairs Wilfredo M. Trinidad, chair of the Personnel Selection Board, strongly recommended his
promotional appointment to the contested position.
Third, respondents multifarious experiences and trainings[12] in air transportation were taken into
account when he was chosen for the subject position. Respondent not only showed a continuing interest
to improve his expertise in the field of air transportation, he also acquired an Airline Transport Pilots
License in 1998.[13] As a privileged holder of such license, respondent exercised administrative
supervision and control over pilots, cabin and crew members to ensure compliance with air safety laws,
rules and regulations.
In addition, respondents dedication to the service was demonstrated by his conceptualization and
establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national airports
in the country to ensure the security of both airport personnel and passengers. Respondent also
organized the Air Transportation Office Operations Center which now provides air service assistance
on a 24-hour basis.
Because of respondents commendable performance, he was designated Chief of the Air Transportation
Office Operations Center in 1993 per Office Order No. 178-93,[14] in addition to his duties as Check
Pilot II. He was also designated Acting Chief, Aviation Safety Division, of the ATO per Office Order
No. 211-93.[15]
In Teologo vs. Civil Service Commission,[16] the Supreme Court ruled:
Promotions in the Civil Service should always be made on the basis of qualifications, including
occupational competence, moral character, devotion to duty, and, not least important, loyalty to the
service. The last trait should always be given appropriate weight, to reward the civil servant who has
chosen to make his employment in the Government a lifetime career in which he can expect
advancement through the years for work well done. Political patronage should not be necessary. His
record alone should be sufficient assurance that when a higher position becomes vacant, he shall be
seriously considered for the promotion and, if warranted, preferred to less devoted aspirants.
As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director Nelson Acebedo,
a proven excellent performance of a person is better than just experience by occupying a position but
lacks dedication to duty, strong leadership and technical know-how.[17]
It is elementary in the law of public officers that the power to appoint is in essence discretionary on the
part of the proper authority. In Salles vs. Francisco, et al.,[18] we had occasion to rule that, in the
appointment or promotion of employees, the appointing authority considers not only their civil service
eligibilities but also their performance, education, work experience, trainings and seminars attended,

agency examinations and seniority. Consequently, the appointing authority has the right of choice
which he may exercise freely according to his best judgment, deciding for himself who is best qualified
among those who have the necessary qualifications and eligibilities. The final choice of the appointing
authority should be respected and left undisturbed. Judges should not substitute their judgment for that
of the appointing authority.
In the appointment of division chiefs, as in this case, the power to appoint rests on the head of the
department. Sufficient if not plenary discretion should be granted to those entrusted with the
responsibility of administering the offices concerned. They are in a position to determine who can best
fulfill the functions of the office vacated.[19] Not only is the appointing authority the officer primarily
responsible for the administration of the office, he is also in the best position to determine who among
the prospective appointees can efficiently discharge the functions of the position.[20]
Respondent was the uncontested choice of the appointing authority. Then DOTC Secretary Jesus B.
Garcia dismissed the protest against respondents appointment. ATO Executive Director Gilo also
noted respondents full compliance with the qualifications for the position. CSC-NCR Director
Acebedo, who previously recalled respondents appointment, later affirmed it after a re-evaluation of
the case and declared his previous ruling unofficial and inexistent.
Clearly then, there is no reason to disapprove the appointment of respondent as Chief of the Aviation
Safety Regulation Office considering that he is fully qualified and evidently the choice of the
appointing authority. Between the Commission and the appointing authority, we sustain the latter.[21]
Every particular job in an office calls for both formal and informal qualifications. Formal
qualifications such as age, number of academic units in a certain course, seminars attended, etc., may
be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty,
ambition, prospects for the future and best interest of the service. Given the demands of a certain job,
who can do it best should be left to the head of the office concerned provided the legal requirements for
the office are satisfied.[22]
We, however, agree with petitioner that the reckoning point in determining the qualifications of an
appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the
date of resolution of the protest against it. We need not rule on petitioners assertion that respondents
subsequent compliance with the experience standards during the pendency of the case should not be
counted in his favor since respondent was anyway qualified for the position at the time of his
appointment.
But even assuming for the sake of argument that respondent failed to meet the experience requirement
to qualify for the contested position, we are still inclined to uphold the appellate courts approval of
respondents appointment. Petitioner itself has, on several occasions, allowed the appointment of
personnel who were initially lacking in experience but subsequently obtained the same.
In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled thus:
A careful evaluation of the qualifications of Josue reveals that he meets the education, training and
eligibility requirements of the position. Considering that Josue has already in his favor three (3) years
and eight (8) months experience as Senior Inspector up to the present, he has substantially satisfied the
four (4) years experience required for the appointment as Chief Inspector.

Following petitioners line of reasoning, respondent is deemed to have satisfactorily complied with the
experience requirement for the contested position when he was designated Chief of the ATO
Operations Center and Acting Chief of the ATO Aviation Safety Division. Having held said positions
from 1993 to the present, respondent may be considered to have acquired the necessary experience for
the position.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals setting
aside CSC Resolution No. 98-2970 and CSC Resolution No. 99-1451 is AFFIRMED. The
appointment of Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED.
SO ORDERED.

EN BANC

G.R. No. 96298 May 14, 1991

RENATO M. LAPINID, petitioner,
vs.
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY,
respondents.
Brillantes, Nachura, Navarro & Arcilla Law Offices for petitioner.
Adolpho M. Guerzon for J. Junsay, Jr.
Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Civil Service
Commission.

CRUZ, J.:p
The issue raised in this case has been categorically resolved in a long line of cases that
should have since guided the policies and actions of the respondent Civil Service
Commission. Disregard of our consistent ruling on this matter has needlessly imposed on the
valuable time of the Court and indeed borders on disrespect for the highest tribunal. We state
at the outset that this conduct can no longer be countenanced.
Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of
Terminal Supervisor at the Manila International Container Terminal on October 1, 1988. This
appointment was protested on December 15, 1988, by private respondent Juanito Junsay,
who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988,

for a review of the decision of the Placement Committee dated May 3, 1988. He contended
that he should be designated terminal supervisor, or to any other comparable position, in view
of his preferential right thereto. On June 26, 1989, complaining that the PPA had not acted on
his protest, Junsay went to the Civil Service Commission and challenged Lapinid's
appointment on the same grounds he had earlier raised before the PPA. In a resolution dated
February 14, 1990, the Commission disposed as follows:
After a careful review of the records of the case, the Commission finds the appeal meritorious. In
the comparative evaluation sheets, the parties were evaluated according to the following criteria,
namely: eligibility; education; work experience; productivity/performance/ attendance; integrity;
initiative/leadership; and physical characteristics/personality traits. The results of the evaluation
are as follows:
JUNSAY, Juanito 79.5
VILLEGAS, Benjamin 79
LAPINID, Renato 75
DULFO, Antonio 78
MARIANO, Eleuterio 79
FLORES, Nestor 80
DE GUZMAN, Alfonso 80
VER, Cesar 80
It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of
protestees Lapinid (75) and Dulfo (78).
Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin
Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and
Antonio Dulfo respectively who may be considered for appointment to any position
commensurate and suitable to their qualifications, and that the Commission be notified within
ten (10) days of the implementation hereof.
SO ORDERED.

Upon learning of the said resolution, Lapinid, 7who claimed he had not been informed of the
appeal and had not been heard thereon, filed a motion for reconsideration on March 19, 1990.
This was denied on May 25, 1990. The Philippine Ports Authority also filed its own motion for
reconsideration on June 19, 1990, which was denied on August 17, 1990. A second motion
for reconsideration filed on September 14, 1990, based on the re-appreciation of Lapinid's
rating from 75% to 84%, was also denied on October 19, 1990.
When the petitioner came to this Court on December 13, 1990, we resolved to require
Comments from the respondents and in the meantime issued a temporary restraining order.
The Solicitor General took a stand against the Civil Service Commission which, at his
suggestion, was allowed to file its own Comment. The petitioner filed a Reply. The private

respondent's Comment was dispensed with when it was not filed within the prescribed period.
We see no reason to deviate from our consistent ruling on the issue before us.
In Luego v. Civil Service Commission, 1 this Court declared:
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a
permanent appointment on the ground that another person is better qualified than the appointee
and, on the basis of this finding, order his replacement by the latter?
xxx xxx xxx
Appointment is an essentially discretionary power and must be performed by the officer in which
it is vested according to his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the appointment cannot be faulted
on the ground that there are others better qualified who should have been preferred. This is a
political question involving considerations of wisdom which only the appointing authority can
decide.
xxx xxx xxx
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the
private respondent were qualified for the position in controversy. That recognition alone
rendered it functus officio in the case and prevented it from acting further thereon except to
affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the
said appointment simply because it believed that the private respondent was better qualified for
that would have constituted an encroachment on the discretion vested solely in the city mayor.

The same ruling has been affirmed, in practically the same language as Luego, in Central
Bank v. Civil Service Commission, 171 SCRA 744; Santiago v. Civil Service Commission, 178
SCRA 733; Pintor v. Tan, G.R. No. 84022 and G.R. No. 85804, March 9, 1989, En Banc,
Minute Resolution; Galura v. Civil Service Commission, G.R. No. 85812, June 1, 1989, En
Banc, Minute Resolution; Zulueta v. Mamangun, G.R. No. 85941, June 15, 1989, En Banc,
Minute Resolution; Remigio v. Chairman, Civil Service Commission, G.R. No. 86324, July 6,
1989, En Banc, Minute Resolution; Aurora Macacua v. Civil Service Commission, G.R. No.
91520, July 31, 1990, En Banc, Minute Resolution; Abdulwahab A. Bayao v. Civil Service
Commission, G.R. No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos v.
Civil Service Commission, G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v. The Hon.
Civil Service Commission, et al., G.R. No. 90477, September 13, 1990, En Banc, Minute
Resolution; Elenito Lim v. Civil Service Commission, et al., G.R. No. 87145, October 11,
1990, En Banc, Minute Resolution; Teologo v. Civil Service Commission, G.R. No. 92103,
November 8, 1990; Simpao v. Civil Service Commission, G.R. No. 85976, November 15,
1990.
Only recently, in Gaspar v. Court of Appeals 2 this Court said:
The only function of the Civil Service Commission in cases of this nature, according to Luego, is
to review the appointment in the light of the requirements of the Civil Service Law, and when it
finds the appointee to be qualified and all other legal requirements have been otherwise
satisfied, it has no choice but to attest to the appointment. Luego finally points out that the
recognition by the Commission that both the appointee and the protestant are qualified for the

position in controversy renders it functus officio in the case and prevents it from acting further
thereon except to affirm the validity of the former's appointment; it has no authority to revoke the
appointment simply because it considers another employee to be better qualified for that would
constitute an encroachment on the discretion vested in the appointing authority.
xxx xxx xxx
The determination of who among several candidates for a vacant position has the best
qualifications is vested in the sound discretion of the Department Head or appointing authority
and not in the Civil Service Commission. Every particular job in an office calls for both formal
and informal qualifications. Formal qualifications such as age, number of academic units in a
certain course, seminars attended, etc., may be valuable but so are such intangibles as
resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and
best interests, of the service. Given the demands of a certain job, who can do it best should be
left to the Head of the Office concerned provided the legal requirements for the office are
satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of
Office in this regard.

It is therefore incomprehensible to the Court why, despite these definitive pronouncements,

the Civil Service Commission has seen fit to ignore, if not defy, the clear mandate of the
Court.
We declare once again, and let us hope for the last time, that the Civil Service Commission
has no power of appointment except over its own personnel. Neither does it have the
authority to review the appointments made by other offices except only to ascertain if the
appointee possesses the required qualifications. The determination of who among aspirants
with the minimum statutory qualifications should be preferred belongs to the appointing
authority and not the Civil Service Commission. It cannot disallow an appointment because it
believes another person is better qualified and much less can it direct the appointment of its
own choice.
Appointment is a highly discretionary act that even this Court cannot compel. While the act of
appointment may in proper cases be the subject of mandamus, the selection itself of the
appointeetaking into account the totality of his qualifications, including those abstract
qualities that define his personalityis the prerogative of the appointing authority. This is a
matter addressed only to the discretion of the appointing authority. It is a political question
that the Civil Service Commission has no power to review under the Constitution and the
applicable laws.
Commenting on the limits of the powers of the public respondent, Luego declared:
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of
the Civil Service Decree because it says the Commission has the power to "approve" and
"disapprove" appointments. Thus, it is provided therein that the Commission shall have inter alia
the power to:
9(h) Approve all appointments, whether original or promotional, to positions in
the civil service, except those presidential appointees, members of the Armed
Forces of the Philippines, police forces, firemen, and jailguards, and disapprove
those where the appointees do not possess appropriate eligibility or required
qualifications. (Emphasis supplied)

However, a full reading of the provision, especially of the underscored parts, will make it clear
that all the Commission is actually allowed to do is check whether or not the appointee
possesses the appropriate civil service eligibility or the required qualifications. If he does, his
appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be
employed by the Commission when it acts onor as the Decree says, "approves" or
"disapproves'an appointment made by the proper authorities.

The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for
the Civil Service Commission not to understand them. The bench does; the bar does; and we
see no reason why the Civil Service Commission does not. If it will not, then that is an entirely
different matter and shall be treated accordingly.
We note with stern disapproval that the Civil Service Commission has once again directed the
appointment of its own choice in the case at bar. We must therefore make the following
injunctions which the Commission must note well and follow strictly.
Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist
from disregarding the doctrine announced in Luego v. Civil Service Commission and the
subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded
the attitude of the public respondent on this matter as imputable to a lack of comprehension
and not to intentional intransigence. But we are no longer disposed to indulge that fiction.
Henceforth, departure from the mandate of Luego by the Civil Service Commission after the
date of the promulgation of this decision shall be considered contempt of this Court and shall
be dealt with severely, in view especially of the status of the contemner.
While we appreciate the fact that the Commission is a constitutional body, we must stress, as
a necessary reminder, that every department and office in the Republic must know its place in
the scheme of the Constitution. The Civil Service Commission should recognize that its acts
are subject to reversal by this Court, which expects full compliance with its decisions even if
the Commission may not agree with them.
The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.
WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil Service
Commission dated February 14, 1990, May 25, 1990, August 17, 1990, and October 19,
1990, are REVERSED and SET ASIDE. The temporary restraining order dated December 13,
1990, is made PERMANENT. No costs.
SO ORDERED.

EN BANC

G.R. No. 94255 May 5, 1992

RICARDO L. MEDALLA, JR., petitioner,
vs.
HON. PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil Service
Commission and HON. EDUARDO O. CARRASCOSO, in his capacity as General
Manager of the Manila International Airport Authority and ARMANDO F. SINGSON,
respondents.
Roberto L. Madrid & Associates for petitioner.
Reynaldo F. Singson for private respondent.

PARAS, J.:
Petitioner, in this petition for certiorari, prohibition and mandamus, seeks to annul and set
aside a) the decision and order 1 of the Merit Systems Protection Board dated November 9,
1988 and September 5, 1989 respectively, in MSPB Case No. 1650 entitled "Singson,
Armando v. Medalla, Ricardo" revoking petitioner's appointment and directing Singson's
appointment in his stead, and b) Resolution Nos. 90-155 and 90-373 2 of the Civil Service
Commission dated February 9, 1990 and April 16, 1990, the first resolution denying
petitioner's request that he be given 15 days to file his motion for reconsideration or appeal,
upholding the decision of the Merit Systems Protection Board dated November 9, 1988 and
directing the Civil Service Commission National Capital Region to ensure its immediate
implementation, and the second resolution denying petitioner's motion for reconsideration.
Petitioner likewise prays for the nullification of an Office Order and a Memorandum issued by
the then Manila International Airport Authority relating to the abovecited decisions and
resolutions.
It appears on record that in 1982, Engr. Ricardo Medalla, petitioner herein, was appointed as
a Geodetic Engineer of the then Manila International Airport Authority (MIAA for brevity). In
1986, he was promoted to Supervising Engineer A of its Buildings, Pavements and Grounds
Division, otherwise known as the B P and G Division. On February 16, 1987, Engr. Elpidio
Mendoza, the said Decision's Department Manager, was likewise promoted, thereby leaving
his position vacant (Rollo, pp. 7-8). In view thereof, Engr. Armando Singson was designated
as the Acting Division Manager on July 1, 1987 (Annex "K", Rollo, p. 48). The MIAA
Selection/Promotion Board, however, in its meeting on October 9, 1987, unanimously
appointed Medalla as the new Division Manager B of the B P and G Division (Annex "M",
Ibid., p. 50). On the same date, Medalla was issued his formal appointment by the then MIAA
General Manager Aurelio German (Annex "N", Ibid., p. 52) after which he immediately
assumed his post. Apparently aggrieved over Medalla's appointment, Singson filed a protest
on October 19, 1987 to the Merit Systems Protection Board (MSPB) of the Civil Service
Commission (hereinafter referred to as the Commission) (Annex "0-1", Ibid., p. 54) which
endorsed the same on October 21, 1987 to the MIAA General Manager for appropriate action

in accordance with Section 14 of CSC Resolution No. 83-343 (Annex "O", Ibid., p. 53). In
response thereto, Mr. German affirmed Medalla's promotional appointment and in effect
dismissed Singson's protest (Annex "P", Ibid., p. 57). The latter appealed the decision once
more to the MSPB (Annex "Q-1", Ibid., p. 60) which again referred the same to the MIAA
General Manager for comment (Annex "Q", Ibid., p. 59). Acting thereon, Mr. Evergisto C.
Macatulad as the Officer-in-Charge, reiterated MIAA's position as contained in the letter of Mr.
German, thus reaffirming Medalla's appointment. Macatulad added that their office will no
longer submit supplemental comments on the matter (Annex "R", Ibid., p. 63). The MSPB
then required the submission of the list of positions considered next-in-rank, the approved
organization chart and systems of ranking positions and the qualification standards for the
contested position (Annex "S", Ibid., p. 64) which was duly complied with by the MIAA (Annex
"T", Ibid., p. 65).
In the meantime, the MIAA underwent a reorganization pursuant to its Resolutions Nos. 87-55
and 87-68 dated as early as September 30 and October 22, 1987 respectively (Annexes "U"
and "U-1", Ibid., pp. 68-70). Its new staffing pattern was approved by the Department of
Budget and Management on February 25, 1988 (Rollo, p. 99) thus the MIAA Placement
Committee deliberated on personnel appointments prescinding from the said pattern (Annex
"W", Rollo, p. 88). Medalla and Singson were subsequently reappointed as Division Manager
D and Principal Engineer C respectively of the new Civil Works Division which replaced the
former B P and G Division due to added functions (Annexes "X" and "X-2", Ibid., pp. 96-97).
Both ostensibly accepted their new designations (Annex "X-3", Ibid., p. 98).
Notwithstanding the foregoing events, the MSPB still rendered its disputed ruling which reads:
WHEREFORE, premises considered, this Board finds the appeal meritorious. Accordingly, the
appointment of appellee Mr. Medalla as Division Manager B is hereby revoked. It is directed that
Mr. Singson be appointed in his stead.
SO ORDERED. (Annex "A", Ibid., p. 32).

On December 20, 1988, the new MIAA General Manager Eduardo Carrascoso sought
clarification on the effectivity of this decision considering that both Singson and Medalla had
already been given their positions based on the new plantilla (Annex "Y", Ibid., p. 99). In a
letter-reply dated April 17, 1988, MSPB Chairman Villones still declared the decision as final
and executory and then directed the MIAA General Manager to comply therewith (Annex "Z",
Ibid., p. 100). The matter was referred to the MIAA Legal Office which advised that the MIAA
is not bound to follow the MSPB's directive as the said MSPB decision has already been
rendered moot and academic in view of MIAA's reorganization and that protests should be
addressed anew to the Task Force on Reorganization Appeals, being the proper forum
(Annex "AA", Ibid., pp. 102-103). The contested MSPB decision therefore remained unacted
upon.
On July 21, 1989, Singson's appeal to MIAA General Manager Carrascoso asking for the
implementation of the same decision (Annex "B", Ibid., pp. 104) turned to be in vain, so
Singson filed a motion to the MSPB which filed on September 5, 1989, as follows:
After a careful review of the records, the Board noted that the General Manager, MIAA, received
the decision dated November 9, 1988 of the Board on December 5, 1988. However, instead of

filing a motion for reconsideration/appeal from the decision, he requested for clarification as to
whether said decision be (sic) executed. He did not file a motion for reconsideration within the
reglementary period of fifteen (15) days from receipt of said decision. Hence, the decision of the
Board became final and executory. Consequently, the Board's decision dated November 9, 1988
be (sic) implemented immediately. Accordingly, the appointment dated August 1, 1988 of Mr.
Ricardo L. Medalla, Jr. as Division Manager D, in the Civil Works Division, MIAA, is hereby
revoked.
xxx xxx xxx
SO ORDERED. (Annex "B", Rollo, pp. 34-35).

On October 26, 1989, Medalla filed before the CSC a motion for reconsideration of the above
order (Annex "DD", Ibid., p. 113) but the motion was denied by the CSC in its Resolution No.
90-155 dated February 9, 1990 stating thus:
WHEREFORE, foregoing premises considered, the Commission resolved to deny, as it hereby
denies the request of Ricardo Medalla that he be given fifteen (15) days to file a motion for
reconsideration or to appeal. Accordingly, the Order dated September 5, 1989 of the Merit
Systems Protection Board, directing the revocation of the appointment of Medalla as Manager
B, Civil Works Office, NAIA, and the appointment of Armando F. Singson to said position in
accordance with MSPB Decision dated November 9, 1988, stands. . . . (Annex "C", Ibid., p. 38).

Medalla's second motion for reconsideration was also denied in Resolution No. 90-373 dated
April 16, 1990 (Annex "D", Ibid., pp. 40-41). Undaunted, Medalla filed a third motion for
reconsideration which has as yet, remained pending (Annex "FF", Ibid., p. 121). Meanwhile,
MIAA General Manager Carrascoso, in conformance with the previous CSC resolutions
issued Office Order No. 80 on May 18, 1990, which directed Singson and Medalla to assume
their duties as Division Manager A and Principal Engineer A, respectively, of the Civil Works
Division (Annex "E", Ibid., p. 42). Medalla promptly requested for the deferment of the said
Office Order pending the resolution of his motion for reconsideration before the CSC but he
was informed that his request may not be given due course as it is only a restraining order
from the Supreme Court which can suspend the effectivity of any CSC ruling (Annex "F",
Ibid., p. 43).
Hence, the present petition.
Once again, the act of the Commission through the MSPB in replacing an appointee with an
employee of its choice is at issue in the case at bar.
The petition must be granted.
The Court has already repeatedly ruled that the Commission has no such authority to do so.
Its only function is limited to approving or reviewing appointments to determine their
accordance with the requirements of the Civil Service Law (Chang v. CSC, et al., G.R. No.
86791, November 26, 1990, 191 SCRA 663). Thus, when the Commission finds the
appointee to be qualified and all the other legal requirements have been satisfied, it has no
choice but to attest to the appointment (Central Bank of the Philippines, et al., v. CSC, G.R.
Nos. 80455-56, April 10, 1989, 171 SCRA 774). Thereafter, its participation in the
appointment process ceases (Orbos v. CSC, G.R. No. 92561, September 12, 1990, 189

SCRA 464). Indeed, the determination of who among several candidates for a vacant position
has the best qualifications is vested in the sound discretion of the Department Head or
appointing authority and not in the Commission (Gaspar v. Court of Appeals, et al., G.R. No.
90799, October 18, 1990, 190 SCRA 777). This is because the appointing authority occupies
the ideal vantage point from which to identify and designate the individual who can best fill the
post and discharge its functions in the government agency he heads (Abila v. CSC, et al.,
G.R. No. 92573, June 13, 1991, 198 SCRA 102). Consequently, when the appointing
authority has already exercised his power of appointment, the Commission cannot revoke the
same on the ground that another employee is better qualified for that would constitute an
encroachment on the decision vested in the appointing authority (Luego v. CSC, G.R. No.
69137, August 5, 1986; Pintor v. Tan, G.R. Nos. 84022 and 85804, March 9, 1989, En banc).
The Commission may not and should not substitute its judgment for that of the appointing
authority (Patagoc v. CSC, et al., G.R. No. 90229, May 14, 1990, 189 SCRA 416).
In fine, the Court has categorically ruled:
We declare once again, and let us hope for the last time, that the Civil Service Commission has
no power of appointment except over its own personnel. Neither does it have the authority to
review the appointments made by other offices except only to ascertain if the appointee
possesses the required qualifications. The determination of who among aspirants with the
minimum statutory qualifications should be preferred belongs to the appointing authority and not
the Civil Service Commission. It cannot disallow an appointment because it believes another
person is better qualified and much less can it direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court cannot compel. While the act of
appointment may in proper cases be the subject of mandamus, the selection itself of the
appointee taking into account the totality of his qualifications, including those abstract
qualities that define his personality is the prerogative of the appointing authority. This is a
matter addressed only to the discretion of the appointing authority. It is a political question that
the Civil Service Commission has no power to review under the Constitution and the applicable
laws. (Lapinid v. CSC, et al., G.R. No. 96298, May 14, 1991).

In the same case, the Court has even warned that from the date of its promulgation,
departure from the mandate of Luego by the Commission shall be considered contempt of
this Court and shall be dealt with severely, in view of the status of the contemnor.
In the light of the foregoing doctrines, the Commission appears to have overstepped its
jurisdiction when it revoked the appointment of petitioner Medalla who was shown to have
satisfied the requirements prescribed for the contested position, and instead directed the
appointment of protestant Singson. No sanction, however, may yet be imposed on the
Commission as the act complained of occurred before the promulgation of the aforestated
Lapinid decision.
PREMISES CONSIDERED, a) the decision, order and resolutions appealed from are SET
ASIDE and b) Engr. Ricardo Medalla and Engr. Armando Singson are REINSTATED to the
posts of Division Manager D and Principal Engineer C respectively, of the Civil Works
Division.
SO ORDERED.

THIRD DIVISION
[G.R. No. 131429. August 4, 1999]
OSCAR BERMUDEZ, ARTURO A. LLOBRERA and CLAUDIO L. DAYAON, Petitioners, vs.
EXECUTIVE SECRETARY RUBEN TORRES, BUDGET SECRETARY SALVADOR
ENRIQUEZ, JR., JUSTICE SECRETARY TEOFISTO GUINGONA, JR., and ATTY.
CONRADO QUIAOIT, Respondents.
DECISION
VITUG, J.:
The validity and legality of the appointment of respondent Conrado Quiaoit to the post of Provincial
Prosecutor of Tarlac by then President Fidel V. Ramos is assailed in this petition for review on
certiorari on a pure question of law which prays for the reversal of the Order,[1 dated 20 October 1997,
of the Regional Trial Court (Branch 63) of Tarlac, Tarlac, dismissing the petition for prohibition and/or
injunction and mandamus, with a prayer for the issuance of a writ of injunction/temporary restraining
order, instituted by herein petitioners.
The occurrence of a vacancy in the Office of the Provincial Prosecutor of Tarlac impelled the main
contestants in this case, petitioner Oscar Bermudez and respondent Conrado Quiaoit, to take
contrasting views on the proper interpretation of a provision in the 1987 Revised Administrative Code.
Bermudez, the First Assistant Provincial Prosecutor of Tarlac and Officer-In-Charge of the Office of
the Provincial Prosecutor, was a recommendee[2 of then Justice Secretary Teofisto Guingona, Jr., for
the position of Provincial Prosecutor. Quiaoit, on the other hand, would appear to have had the support
of then Representative Jose Yap of the Second Legislative District of Tarlac.[3 On 30 June 1997,
Quiaoit emerged the victor when he was appointed by President Ramos to the coveted office. Quiaoit
received a certified xerox copy of his appointment and, on 21 July 1997, took his oath of office before
Executive Judge Angel Parazo of the Regional Trial Court (Branch 65) of Tarlac, Tarlac. On 23 July
1997, Quiaoit assumed office and immediately informed the President, as well as the Secretary of
Justice and the Civil Service Commission, of that assumption. Bermudez refused to vacate the Office
of Provincial Prosecutor claiming that the original copy of Quiaoits appointment had not yet been
released by the Secretary of Justice.[4 Quiaoit, nonetheless, performed the functions and duties of the
Office of Provincial Prosecutor by issuing office orders and memoranda, signing resolutions on
preliminary investigations, and filing several informations before the courts. Quiaoit had since been
regularly receiving the salary, RATA and other emoluments of the office.
On 17 September 1997, Bermudez and Quiaoit were summoned to Manila by Justice Secretary
Guingona. The three met at the Department of Justice and, following the conference, Bermudez was
ordered to wind up his cases until 15 October 1997 and to turn-over the contested office to Quiaoit the
next day.
In his First Indorsement, dated 22 September 1997, for the Chief State prosecutor, Assistant Chief State
Prosecutor Nilo Mariano transmitted the original copy of Quiaoits appointment to the Regional State
Prosecutor Carlos de Leon, Region III, at San Fernando, Pampanga. In turn, in his Second Indorsement,
dated 02 October 1997, Regional State Prosecutor de Leon forwarded to Quiaoit said original copy of
his appointment. On the basis of the transmittal letter of Regional State Prosecutor de Leon, Quiaoit, as

directed, again so assumed office on 16 October 1997. On even date, Bermudez was detailed at the
Office of the Regional State Prosecutor, Region III, in San Fernando, Pampanga.
In the meantime, on 10 October 1997, Bermudez together with his co-petitioners Arturo Llobrera and
Claudio Dayaon, the Second Assistant Provincial Prosecutor and the Fourth Assistant Provincial
Prosecutor of Tarlac, respectively, filed with the Regional Trial Court of Tarlac, a petition for
prohibition and/or injunction, and mandamus, with a prayer for the issuance of a writ of
injunction/temporary restraining order, against herein respondents, challenging the appointment of
Quiaoit primarily on the ground that the appointment lacks the recommendation of the Secretary of
Justice prescribed under the Revised Administrative Code of 1987. After hearing, the trial court
considered the petition submitted for resolution and, in due time, issued its now assailed order
dismissing the petition. The subsequent move by petitioners to have the order reconsidered met with a
denial.
Hence, the instant recourse.
The core issue for consideration is whether or not the absence of a recommendation of the Secretary of
Justice to the President can be held fatal to the appointment of respondent Conrado Quiaoit. This
question would, in turn, pivot on the proper understanding of the provision of the Revised
Administrative Code of 1987 (Book IV, Title III, Chapter II, Section 9) to the effect thatAll provincial and city prosecutors and their assistants shall be appointed by the President upon the
recommendation of the Secretary.
Petitioners contend that an appointment of a provincial prosecutor mandatorily requires a prior
recommendation of the Secretary of Justice endorsing the intended appointment citing, by analogy, the
case of San Juan vs. CSC[5 where the Court held:
"x x x The DBM may appoint only from the list of qualified recommendees nominated by the
Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no
one meets the legal requirements and ask for new recommendees who have the necessary eligibilities
and qualifications.
The Provincial Budget Officer (PBO) is expected to synchronize his work with DBM.[6 (Emphasis
supplied.)

Insisting on the application of San Juan, petitioners call attention to the tenor of Executive Order No.
112[7 Section 1. All budget officers of provinces, cities and municipalities shall be appointed henceforth by
the Minister of Budget and Management upon recommendation of the local chief executive
concerned x x x.
that, they claim, can be likened to the aforequoted provision of the Revised Administrative Code of
1987. Respondents argue differently.
The legislative intent is, of course, primordial. There is no hard-and-fast rule in ascertaining whether
the language in a statute should be considered mandatory or directory, and the application of a ruling in

one particular instance may not necessarily be apt in another[8 for each must be determined on the
basis of the specific law in issue and the peculiar circumstances attendant to it. More often than not, the
problem, in the final analysis, is firmed up and addressed on a case-to-case basis. The nature, structure
and aim of the law itself is often resorted to in looking at the legislative intent. Generally, it is said that
if no consequential rights or liabilities depend on it and no injury can result from ignoring it, and that
the purpose of the legislature can be accomplished in a manner other than that prescribed when
substantially the same results can be obtained, then the statute should be regarded merely as directory,
rather than as mandatory, in character.[9
An appointment to a public office is the unequivocal act of designating or selecting by one having the
authority therefor of an individual to discharge and perform the duties and functions of an office or
trust.[10 The appointment is deemed complete once the last act required of the appointing authority has
been complied with and its acceptance thereafter by the appointee in order to render it effective.[11
Appointment necessarily calls for an exercise of discretion on the part of the appointing authority.[12
In Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,[13 reiterated in Flores vs.
Drilon,[14 this Court has held:
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which
he may exercise freely according to his judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power
x x x[15
Indeed, it may rightly be said that the right of choice is the heart of the power to appoint.[16 In the
exercise of the power of appointment, discretion is an integral part thereof.
When the Constitution[17 or the law[18 clothes the President with the power to appoint a subordinate
officer, such conferment must be understood as necessarily carrying with it an ample discretion of
whom to appoint. It should be here pertinent to state that the President is the head of government whose
authority includes the power of control over all executive departments, bureaus and offices. Control
means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a
subordinate officer has done in the performance of his duties, as well as to substitute the judgment of
the latter,[19 as and when the former deems it to be appropriate. Expressed in another way, the
President has the power to assume directly the functions of an executive department, bureau and
office.[20 It can accordingly be inferred therefrom that the President can interfere in the exercise of
discretion of officials under him or altogether ignore their recommendations.[21
It is the considered view of the Court, given the above disquisition, that the phrase upon
recommendation of the Secretary, found in Section 9, Chapter II, Title III, Book IV, of the Revised
Administrative Code, should be interpreted, as it is normally so understood, to be a mere advise,
exhortation or indorsement, which is essentially persuasive in character and not binding or obligatory
upon the party to whom it is made.[22 The recommendation is here nothing really more than advisory
in nature.[23 The President, being the head of the Executive Department, could very well disregard or
do away with the action of the departments, bureaus or offices even in the exercise of discretionary
authority, and in so opting, he cannot be said as having acted beyond the scope of his authority.
The doctrine in San Juan, relied upon by petitioners, is tangential. While the tenor of the legal provision
in Executive Order No. 112 has some similarity with the provision in the 1987 Administrative Code in
question, it is to be pointed out, however, that San Juan,[24 in construing the law, has distinctively

given stress to the constitutional mandate on local autonomy; thus:

The issue before the Court is not limited to the validity of the appointment of one Provincial Budget
Officer. The tug of war between the Secretary of Budget and Management and the Governor of the
premier province of Rizal over a seemingly innocuous position involves the application of a most
important constitutional policy and principle, that of local autonomy. We have to obey the clear
mandate on local autonomy. Where a law is capable of two interpretations, one in favor of centralized
power in Malacaang and the other beneficial to local autonomy, the scales must be weighed in favor of
autonomy.
xxx
When the Civil Service Commission interpreted the recommending power of the Provincial Governor
as purely directory, it went against the letter and spirit of the constitutional provisions on local
autonomy. If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the
right of local governments to develop self-reliance and resoluteness in the handling of their own funds,
the goal of meaningful local autonomy is frustrated and set back.[25
The Court there has explained that the President merely exercises general supervision over local
government units and local officials;[26 hence, in the appointment of a Provincial Budget Officer, the
executive department, through the Secretary of Budget and Management, indeed had to share the
questioned power with the local government.
In the instant case, the recommendation of the Secretary of Justice and the appointment of the President
are acts of the Executive Department itself, and there is no sharing of power to speak of, the latter
being deemed for all intents and purposes as being merely an extension of the personality of the
President.
WHEREFORE, the petition is DENIED. No costs.
SO ORDERED.

EN BANC

[G.R. No. 124374. December 15, 1999]

ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT
OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE
GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS,
BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E.
DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR
FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents.

[G.R. No. 126354. December 15, 1999]

CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A.
MATHAY, JR., respondents.

[G.R. No. 126366. December 15, 1999]

ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT
OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents.
DECISION
YNARES-SANTIAGO, J.:

Before this Court are three consolidated petitions[1] filed under Rule 45 of the Revised Rules of Court.
The facts behind the consolidated petitions are undisputed.
During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents[2] to
positions in the Civil Service Unit (CSU) of the local government of Quezon City. Civil Service
Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on
November 15 or 16, 1972.
On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential
Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in
Tanada vs. Tuvera[3] the presidential decree is deemed never in force or effect and therefore cannot at
present, be a basis for establishment of the CSUs . . . .[4]
On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all
Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance
of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on
the ground that the same never became law. Among those affected by the revocation of appointments
are private respondents in these three petitions.
For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the
enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public
Order and Safety (DPOS).
At the heart of these petitions is Section 3 of the Ordinance which provides:
Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and
Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the
department of public order and safety established under Section one hereof to be given appropriate
position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the
1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the
Department. (Underscoring ours).

Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled
due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions
created.
Mayor Brigido R. Simon remedied the situation by offering private respondents contractual
appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed
by Mayor Simon for the period of January 1, 1992 to June 30, 1992.
On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1,
1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective
July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed.
The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents appointments
became the seed of discontent from which these three consolidated petitions grew.
We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.
G.R. No. 124374 and G.R. No. 126366

After the non-renewal of their appointments, private respondents in these two petitions appealed to the
Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of
private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon
City Ordinance No. NC-140, Series of 1990,[5] and ordering their reinstatement to their former
positions in the DPOS.[6] Petitioner brought petitions for certiorari to this Court,[7] to annul the
resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were
referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari.
In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that
respondent Civil Service Commission has the authority to direct him to reinstate private respondents
in the DPOS.
We agree with petitioner.
The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code
of 1992 which became effective only on January 1, 1992, when the material events in this case
transpired.
Applying the said law, we find that the Civil Service Commission erred when it applied the directives
of Ordinance NC-140 and in so doing ordered petitioner to reinstate private respondents to positions
in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note
that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU
into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or
sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS
positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests
exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian
through the simple expedient of enacting ordinances that provide for the absorption of specific
persons to certain positions.

In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU
into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court
of Appeals makes the sweeping statement that the doctrine of separation of powers is not applicable to
local governments.[8] We are unable to agree. The powers of the city council and the city mayor are
expressly enumerated separately and delineated by B.P. 337.
The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief
executive.[9] The power of the city council or sanggunian, on the other hand, is limited to creating,
consolidating and reorganizing city officers and positions supported by local funds. The city council
has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the
sanggunian. The power to appoint is not one of them. Expressio unius est exclusio alterius.[10] Had
Congress intended to grant the power to appoint to both the city council and the local chief executive, it
would have said so in no uncertain terms.
By ordering petitioner to reinstate private respondents pursuant to Section 3 of the Ordinance, the
Civil Service Commission substituted its own judgment for that of the appointing power. This cannot
be done. In a long line of cases,[11] we have consistently ruled that the Civil Service Commissions
power is limited to approving or disapproving an appointment. It does not have the authority to direct
that an appointment of a specific individual be made. Once the Civil Service Commission attests
whether the person chosen to fill a vacant position is eligible, its role in the appointment process
necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the
appointing authority.
The Civil Service Commission argues that it is not substituting its judgment for that of the appointing
power and that it is merely implementing Section 3 of Ordinance NC-140.
The Ordinance refers to the personnel of the CSU, the identities of which could not be mistaken. The
resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals.
There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for
the exercise of discretion. In Farinas vs. Barba,[12] we held that the appointing authority is not bound
to appoint anyone recommended by the sanggunian concerned, since the power of appointment is a
discretionary power.
When the Civil Service Commission ordered the reinstatement of private respondents, it technically
issued a new appointment.[13] This task, i.e. of appointment, is essentially discretionary and cannot be controlled even
by the courts as long as it is properly and not arbitrarily exercised by the appointing authority.

In Apurillo vs. Civil Service Commission, we held that appointment is essentially a discretionary
power and must be performed by the officer in which it is vested.[14]
The above premises considered, we rule that the Civil Service Commission has no power to order
petitioner Ismael A. Mathay, Jr. to reinstate private respondents.
Petitioner similarly assails as error the Court of Appeals ruling that private respondents should be
automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance.
In its decision of March 21, 1996 the Court of Appeals held:

It is clear however, that Ordinance No. NC-140, absorbing the present personnel of the Civil Security
Agent Unit in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents
were still holders of de jure appointments as permanent regular employees at the time, and therefore, by
operation of said Ordinance private respondents were automatically absorbed in the DPOS effectively
as of March 27, 1990.[15] (Underscoring ours.)
The decision is based on the wrong premise.
Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not
possible. Since the CSU never legally came into existence, the private respondents never held
permanent positions. Accordingly, as petitioner correctly points out,[16] the private respondents
appointments in the defunct CSU - - were invalid ab initio. Their seniority rights and permanent status did not arise since they have no
valid appointment. For them to enter the Civil Service after the revocation and cancellation of their
invalid appointment, they have to be extended an original appointment, subject again to the attesting
power of the Civil Service Commission.
Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically
absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Underscoring ours)
It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue
of a law expressly or impliedly creating and conferring it.[17] Since Presidential Decree 51 creating the
CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not
afford any protection. It did not create an office. It is as inoperative as though it was never passed.
In Debulgado vs. Civil Service Commission[18] we held that a void appointment cannot give rise to
security of tenure on the part of the holder of the appointment.
While the Court of Appeals was correct when it stated that the abolition of an office does not mean the
invalidity of appointments thereto,[19] this cannot apply to the case at bar. In this case, the CSU was
not abolished. It simply did not come into existence as the Presidential Decree creating it never
became law.
At the most, private respondents held temporary and contractual appointments. The non-renewal of
these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service
Commission[20] we treated temporary appointments as follows:
The acceptance by the petitioner of a temporary appointment resulted in the termination of official
relationship with his former permanent position. When the temporary appointment was not renewed,
the petitioner had no cause to demand reinstatement thereto. (Underscoring ours.)
Another argument against the concept of automatic absorption is the physical and legal impossibility
given the number of available positions in the DPOS and the number of personnel to be absorbed.[21]
We note that Section 1 of Ordinance NC-140 provides:

There is hereby established in the Quezon City Government the Department of Public Order and
Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in

the attached supporting documents consisting of eighteen (18) pages which are made integral parts of
this Ordinance.
A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for
the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of
Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the
Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are
twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly
salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the
personnel of the defunct CSU, making automatic absorption impossible.
Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law
creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes
unnecessary to discuss whether their acceptance of the contractual appointments constitutes an
abandonment or waiver of such positions. It escapes us how one can relinquish or renounce a
right one never possessed. A person waiving must actually have the right which he is renouncing.
G.R. 126354

In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of
Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the
Civil Service Commission has no authority to compel the mayor of Quezon City to reinstate Jovito
C. Labajo to the DPOS.
The standing of petitioner Civil Service Commission to bring this present appeal is questionable.
We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has
opted not to appeal.
Basic is the rule that every action must be prosecuted or defended in the name of the real party in
interest.[22] A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit.

In Ralla vs. Ralla we defined interest as material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or mere incidental interest.[23] As
a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an
action.

In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party
in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or nonreinstatement.
We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro
Dacoycoy[24] which overturned our rulings in Paredes vs. Civil Service Commission,[25] Mendez vs.
Civil Service Commission[26] and Magpale vs. Civil Service Commission.[27] In Dacoycoy, we
affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected
by a ruling which may seriously prejudice the civil service system.

The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative
case involving nepotism whose deleterious effect on government cannot be overemphasized. The
subject of the present case, on the other hand, is reinstatement.
We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of
one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling
in Dacoycoy does not apply.
To be sure, when the resolutions of the Civil Service Commission were brought before the Court of
Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial
body, the Civil Service Commission can be likened to a judge who should detach himself from cases
where his decision is appealed to a higher court for review.[28]
In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as
adjudicator and became an advocate. Its mandated function is to hear and decide administrative cases
instituted by or brought before it directly or on appeal, including contested appointments and to review
decisions and actions of its offices and agencies,[29] not to litigate.
Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No.
126354.
WHEREFORE, the petitions of Ismael A. Mathay in G.R. No.124374 and G.R. No. 126366 are
GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are
REVERSED and SET ASIDE.
The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal
standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is
AFFIRMED.
No costs.
SO ORDERED.

EN BANC

G.R. No. 110598 December 1, 1994

MONA A. TOMALI petitioner,
vs.
CIVIL SERVICE COMMISSION, OFFICE ON MUSLIM AFFAIRS (OMA) and ROCAINA M.

LUCMA, respondents.
Public Attorney's Office for petitioner.
Tingcap T. Mortaba for private respodent.

VITUG, J.:
In this special civil action for certiorari, petitioner questions her "replacement" by private
respondent in a contested position in the Office on Muslim Affairs.
On 01 July 1990, petitioner Mona A. Tomali was appointed Development Management Officer
II ("DMO II") in the Office on Muslim Affairs ("OMA"). The appointment was extended by then
OMA Executive Director Dimasangcay A. Pundato. She assumed the duties and functions of
the office four months later, or on 01 November 1990, at which time, the appointment had not
yet been transmitted to the Civil Service Commission ("CSC") for approval.
Prior to her assumption to the new position, petitioner had worked in different capacities with
the Mindanao State University starting as Records Clerk (01 June 1983 to 31 December
1986), Clerk Typist (02 January 1987 to 30 June 1989), and, finally, as "Budget Assistant" (01
July 1989 to 31 October 1990). 1
On 16 July 1991, the new Director of the OMA, Dr. Ali Basir Lucman, revoking the previous
incomplete appointment of petitioner, appointed private respondent Rocaina M. Lucman to
the position in question (DMO II). Petitioner, on 29 July 1991, sent public respondent OMA a
letter protesting her replacement. On 01 August 1991, the Chief of the Human Resources
Management Division of the OMA communicated to petitioner the disapproval/expiration of
her appointment. 2 Forthwith, private respondent took her oath of office and assumed the
duties and functions of DMO II.
On 12 August 1991, petitioner reiterated her protest. 3 The Merit Systems Protection Board
("MSPB"), acting thereon, rendered a decision, dated 23 July 1992, dismissing the
protest/complaint for lack of merit. MSPB held:
Glaring is the fact that protestant's appointment to the contested position was not approved by
the Civil Service Commission, hence, incomplete. In this regard, Section 11, Rule V, of the
Omnibus Rules Implementing Book V of Executive Order No. 292, Administrative Code of 1987
is clear and explicit. Said provision reads, thus:
Sec. 11. An appointment not submitted to the Commission, within thirty (30) days from the date
of issuance, which shall be the date appearing on the face of the instrument, shall be ineffective.
As applied to the case of the herein protestant, it appears that the latter has no basis in law to
cling to the contested position. Her prior continuous stay in office was at most by mere tolerance
of the appointing authority. As her appointment is incomplete for lack of the requisite approval of
the Civil Service Commission or its proper Regional or Field Office, no right to security of tenure
as guaranteed by law and the Constitution attaches thereto or for incumbent to invoke. . . . .

xxx xxx xxx

That being so, the proper appointing authority, in this case, the OMA Executive Director may, in
the exercise of sound discretion, cancel or revoke the said incomplete appointment and appoint
another person.
The circumstance showing that the non-approval of protestant's appointment was due to the
belated transmittal thereof to this Commission is of no consequence nor improve her lot as a
holder of an incomplete appointment. There is no showing that the non-submission was
motivated by bad faith, spite or malice or at least attributable to the fault of the
newly-installed OMA Executive Director. 4

Her request for reconsideration having been denied on 27 November 1992, petitioner
appealed to the CSC. In its Resolution No. 93-945, dated 12 March 1993, the Commission
dismissed the appeal for lack of merit. 5
Hence, the instant recourse to this Court.
We fail to see any merit in the petition.
An appointment to a position in the civil service is required to be submitted to the CSC for
approval in order to determine, in main, whether the proposed appointee is qualified to hold
the position and whether or not the rules pertinent to the process of appointment are followed;
thus:
Sec. 9. Powers and Functions of the Commission. The Commission shall administer the Civil
Service and shall have the following powers and functions:
xxx xxx xxx
(h) Approve all appointments, whether original or promotional, to positions in the civil service,
except those of presidential appointees, members of the Armed Forces of the Philippines, police
forces, firemen, and jailguards, and disapprove those where the appointees do not possess the
appropriate eligibility or required qualifications. An appointment shall take effect immediately
upon issue by the appointing authority if the appointee assumes his duties immediately and shall
remain effective until it is disapproved by the Commission, if this should take place, without
prejudice to the liability of the appointing authority for appointments issued in violation of existing
laws or rules: Provided, finally, That the Commission shall keep a record of appointments of all
officers and employees in the civil service. All appointments requiring the approval of the
Commission as herein provided, shall be submitted to it by the appointing authority within thirty
days from issuance, otherwise the appointment becomes ineffective thirty days thereafter. 6

The Omnibus Rules Implementing Book V of Executive Order No. 292, also known as the
Administrative Code of 1987, among other things, provides:
Sec. 11. An appointment not submitted to the Commission within thirty (30) days from the date
of issuance which shall be the date appearing to the face of the appointment, shall be
ineffective. . . . . 7

Compliance with the legal requirements for an appointment to a civil service position is
essential in order to make it fully effective. 8 Without the favorable certification or approval of
the Commission, in cases when such approval is required, no title to the office can yet be

deemed to be permanently vested in favor of the appointee, and the appointment can still be
recalled or withdrawn by the appointing authority. 9 Until an appointment has become a
completed act, it would likewise be precipitate to invoke the rule on security of tenure. 10
Petitioner faults public respondents for their failure to have her appointment properly attended
to and timely acted upon and for, in effect, allowing her in the meanwhile to assume the office
in question. In Favis vs. Rupisan, 11 this Court has said:
The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance
of the pertinent rules on the matter does not render the legal requirement, on the necessity of
approval of the Commissioner of Civil Service of appointments, ineffective and unenforceable.
The employee, whose appointment was not approved, may only be considered as a de facto
officer.

Petitioner herself would not appear to be all that blameless. She assumed the position four
months after her appointment was issued or months after that appointment had already
lapsed or had become ineffective by operation of law. Petitioner's appointment was issued on
01 July 1990, but it was only on 31 May 1991 that it was submitted to the CSC, a fact which
she knew, should have known or should have at least verified considering the relatively long
interval of time between the date of her appointment and the date of her assumption to office.
The CSC, such as to be expected, disapproved the appointment 12 in consonance with
Presidential Decree No. 807.
When private respondent Lucman was thus appointed DMO II on 16 July 1991, petitioner
could not be said to have theretofore earned a valid tenure to the same position. In its
resolution of 12 March 1993, the CSC, which dismissed petitioner's appeal, said:
The instant case is about the recall of Tomali's appointment as Development Management
Officer II, Office on Muslim Affairs in favor of Rocaina Lucman prior to the approval by the
Commission. Subsequently, Tomali filed a protest against the appointment of Rocaina Lucman.
It may be noted that the issue on the said recall of Tomali's appointment had already been the
subject matter in CSC Resolution No.
91-1237, wherein the Commission ruled as follows:
WHEREFORE, foregoing premises considered, this Commission upholds the
power of the appointing authority to recall an appointment. Accordingly, the
separation of Mona Tomali is declared to be in order. (Emphasis supplied.)
Further, a motion for reconsideration was denied in CSC Resolution No. 91-1463, dated
December 3, 1991.
Considering that Tomali had already been separated from the service upon recall of her
appointment, her protest against the appointment of Rocaina Lucman has no merit. She has no
more personality to file a protest. 13

It was well within the authority and discretion of the new OMA Director, therefore, to appoint
private respondent, and such prerogative could not be questioned even on a showing that
petitioner might have been better qualified for the position.

The rule has always been that an appointment is essentially a discretionary act, performed by
an officer in whom it is vested according to his best judgment, the only condition being that
the appointee should possess all the qualifications required therefor. 14 There is nothing on
record to convince us that the new OMA Director has unjustly favored private respondent nor
has exercised his power of appointment in an arbitrary, whimsical or despotic manner.
In sum, we see no grave abuse of discretion on the part of public respondents in their
questioned dismissal of petitioner's protest.
WHEREFORE, the petition for certiorari is DISMISSED. No special pronouncement on costs.
SO ORDERED.

EN BANC

G.R. No. 93064 June 22, 1992

AGUSTINA G. GAYATAO, petitioner,
vs.
CIVIL SERVICE COMMISSION and BAYANI I. FERNANDEZ, respondents.

REGALADO, J.:p
This special civil action for certiorari impugns the resolution promulgated on October 5, 1989
in CSC Case No. 418 of respondent Civil Service Commission revoking the appointment of
petitioner as Customs Operations Chief of the Export Division at the Ninoy Aquino
International Airport and directing the Commissioner of Customs to appoint private
respondent in her stead, as well as its resolution of April 10, 1990 denying petitioner motion
for reconsideration.
Private respondent Bayani I. Fernandez was holding the position of Customs Operations
Chief I (COC) in the Bureau of Customs since March 5, 1984 in a permanent capacity . 1 He
was assigned to the aircraft Operations Division. On October 15, 1987, per Customs
Personnel Order (CPO) No. C-152-87 issued by Commissioner Salvador M. Mison, he was
reassigned as Acting Chief of the Export Division at the Ninoy Aquino International Airport
(NAIA) Customhouse. 2

On February 15, 1988, Commission Mison, purportedly acting pursuant to Executive Order
No. 127 implementing the reorganization of the Department of Finance, Bureau of Customs,
appointed petitioner Agustina G Gayatao, then a Supervising Customs Trade Examiner, to
the position of Customs Operations Chief at the NAIA Customhouse, effective March 1, 1988 3
Thereafter, in CPO No. B-27-88 dated March 3, 1988, petitioner was designated as COC of
the Export Division at NAIA, while private respondent was designated as Customs Operations
Assistant Chief (COAC) of the Aircraft Operations Division, both designations being effective
March 1, 1988. 4
Aggrieved by the actions of said commissioner, private respondent filed a letter of protest on
May 18,1988 before the Merit System Protection Board of respondent Civil Service
Commission (CSC) questioning the appointment of petitioner as COC and his demotion to the
position of COAC. In assailing the action of the appointing authority, private respondent
alleged in substance that (1) he was unjustifiably demoted since he had been holding the
contested position prior to the reorganization; and (2) he is more qualified than herein
petitioner. 5
Commenting thereon in an undated 4th Indorsement, the Commissioner of Customs alleged
that the aforestated appointment of petitioner is "non-protestable, at having been done
pursuant to Executive Order No 127, . . . 6
On October 5, 1989, respondent commission promulgated the challenged resolution
mentioned at the start of this opinion, with the following dispositive portion:
WHEREFORE, premises considered, the appointment of appellee Atty. Gayatao as Customs
Operations Chief is hereby revoked. Accordingly, the Commissioner, Bureau of Customs is
hereby directed to appoint appellant Fernandez in her stead. 7

On October 30, 1987, petitioner filed a request for reconsideration of the questioned
resolution, 8 but the same was denied by the CSC in its resolution dated April 10, 1990. 9
Disagreeing with the aforementioned resolutions, petitioner filed the instant petition for
certiorari with prayer for preliminary injunction.
Public respondent CSC filed its comment to the petition on August 27, 1990 10 while private
respondent Fernandez did likewise on August 23, 1990 11 After some preliminary pleadings
and exchanges, on September 25, 1990 the Solicitor General filed a manifestation in lieu of
comment, recommending the grant of the petition and the annulment of the questioned
resolutions of public respondent.
In our resolution of November 6, 1990, 12 we required respondent CSC to comment on the
manifestation in lieu of comment filed by the Solicitor General, which it did on October 15,
1991 13 and subsequently amplified on October 18, 1991 with a supplemental comment .14
On November 12, 1991, we resolved to give due course to the petition, with the parties filing
their respective memoranda, 15 the last of which was filed by the Solicitor General on February
12, 1992.

The focal issue raised for resolution in this petition is whether respondent commission
committed grave abuse of discretion in revoking the appointment of petitioner and ordering
the appointment of private respondent in her place.
Petitioner takes the position that public respondent has no authority to revoke her
appointment on the ground that another person is more qualified, for that would constitute an
encroachment on the discretion vested solely in the appointing authority. In support of said
contention, petitioner cites the case of Central Bank of the Philippines, et al. vs. Civil Service
Commission, et al., 16 where we ruled that under the Civil Service Decree (Presidential Decree
No. 807), the authority of the CSC is limited to approving or renewing an appointment in the
light of the requisites of the law governing the civil service. The CSC has no authority to
revoke an appointment on the ground that another person is more qualified for a particular
position. It will be in excess of its power if it substitutes its will for that of the appointing
authority. The CSC not being the "appointing power" in contemplation of law, cannot direct
the appointment of a substitute of its choice
We have no quarrel with the validity of the aforesaid doctrines but we cannot sustain
petitioner's theory and submissions in this case premised on said doctrinal rules.
The doctrine laid down in he cited case finds no determinant application in the case at bar. A
reading of the questioned resolution of respondent commission readily shows that the
revocation of the appointment of petitioner was based primarily on its finding that the said
appointment was null and void by reason of the fact that it resulted in the demotion of private
respondent without lawful cause in violation of the latter's security of tenure. The advertence
of the CSC to the fact that private respondent is better qualified than petitioner was merely to
lend further support to its stand that the removal of private respondent was unlawful and
tainted with bad faith and that his reinstatement to his former position is imperative and
justified.
We quote the pertinent portion of said resolution:
After a careful perusal of the records of the case, the Commission finds the appeal meritorious,
Records will show that prior to the reorganization, appellant was already holding the position of
Customs Operations Chief I since March 1984. His reappointment to the position of Customs
Operation Assistant Chief is therefore a clear demotion of rank and position. The Commission
finds no sufficient justifiable reason for this demotion The appointing authority cannot entirely
disregard the rule on equity of the incumbent and justify demotion in the guise of reorganization,
if such demotion will amount to a penalty without justifiable ground or will result in deprivation of
due process on the part of the employee concerned. Although the appointing authority is
afforded wide latitude in the selection and appointment of employee(s), such exercise is
however not absolute. The Supreme Court in the case of GSIS vs Ayroso (96 SCRA 213), ruled:
While it has been held that the right to select and appoint employees is the
prerogative of the employer, this may be availed of without liability, provided this
is exercised, in the words of Justice Juvenal K. Guerrero, in good faith for the
advancement of the employer's interest, and not for the purpose of defeating or
circumventing the rights of the employees under special laws or under valid
agreements, and provided further that such prerogative(s) are not exercised in a
malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or
spite.

Finally, records will further show that appellant is more qualified than appellee because aside
from being the incumbent Customs Operations Chief prior to the reorganization, he was an
"Assistant Custom" Operations Chief since 1977. His experience in the area of Customs
Operations are more than sufficient to qualify him for reappointment to the contested position. 17

Clearly, therefore, in the said resolution the CSC is not actually directing the appointment of
private respondent but simply ordering his reinstatement to the contested position being the
first appointee thereto. Further, private respondent was already holding said position when he
was unlawfully demoted The CSC, after finding that the demotion was patently illegal, is
merely restoring private respondent to his former position, just as it must restore other
employees similarly affected to their positions before the reorganization. 18
It is within the power of public respondent to order the reinstatement of government
employees who have been unlawfully dismissed. The CSC, as the central personnel agency,
has the obligation to implement and safeguard the constitutional provisions on security of
tenure and due process. In the present case, the issuance by the CSC of the questioned
resolutions, for the reasons clearly explained therein, is undubitably in the performance of its
constitutional task of protecting and strengthening the civil service.
In the recent case of Aquino vs. Civil Service Commission, et al., 19 wherein similar issues
were raised, it was ruled that:
We have consistently applied the above doctrine in many cases with similar factual
circumstances, but We see no compelling reason to apply the same in the instant case. In the
cases cited above, We ruled that the CSC has no authority to revoke an appointment simply
because it (CSC) believed that another person is better qualified than the appointee for it would
constitute an encroachment on the discretion solely vested on the appointing authority. The
situation is different, as in the instant case, where the CSC revoked the appointment of the
successful protestant, petitioner herein, principally because the right to security of tenure of the
prior appointee, private respondent herein, to the contested position had already attached. It
must be noted that public respondent CSC did not direct the appointment of a substitute of its
choice. It merely restored the appointment of private respondent who was first appointed to the
contested position.

We find no reason to disturb the findings and conclusions of the CSC that respondent Bayani
I. Fernandez was illegally demoted. As earlier noted, private respondent was holding the
position of Customs Operations Chief in a permanent capacity since 1984. His nonreappointment to that position amounts to a removal without cause from an office which has
not been abolished nor reorganized.
As we stressed in Dario vs. Mison, et al., and its companion cases, 20 removal from office as a
result of reorganization must pass the test of good faith. Upon the effectivity of the 1987
Constitution, any reorganization undertaken by the Government must be guided and
circumscribed by the safeguards and provisions of the said Constitution and the statutes'
governing reorganization. 21
In the instant case, the guidelines and standards provided in those laws were not observed.
The position of private respondent as COC of the Export Division was not abolished with the
reorganization of the Bureau of Customs. What happened was that another person, herein
petitioner who is lower in rank, was appointed in his stead. Such fact is a clear indication of

bad faith which would entitle herein private respondent to reinstatement pursuant to Section 9
of Republic Act No. 6656. 22
As a civil service employee with a permanent appointment, Private respondent cannot be
removed, suspended or demoted except for cause" provided by law. Private respondent's
appointment to the lower position of COAC is a clear demotion in rank without no valid cause
and without being heard thereon. A demotion in office by assigning an employee to a lower
position on the same service is tantamount to removal, if no cause is shown for it, more so, if
it is not part of any disciplinary action. 23 The observance of the rules on bona fide abolition of
public office is essential before terminations and/or demotions from employment in the
government service can be made. 24
The argument of petitioner that the questioned resolution of respondent CSC will have the
effect of her dismissal without cause from government service, since she is already an
appointee to the position which private respondent claims, is devoid of legal support and
logical basis.
In the first place, petitioner cannot claim any right to the contested position. No vacancy
having legally been created by the illegal dismissal no appointment may be validly made to
that position and the new appointee has no right whatsoever to that office. She should be
returned to where she came from or to given another equivalent item. 25 No person, no matter
how qualified and eligible for a certain position, may he appointed to on office which is not yet
vacant. The incumbent must have been lawfully removed or his appointment validly
terminated, 26 since an appointment to an office which is not vacant is null and ab initio. 27
The present Constitution does not provide for automatic vacancies; removals "not for cause"
contemplated in Section 16, Article XVIII thereof must be those resulting from reorganization
and which, to repeat, must pass the test of good faith. 28
We reiterate what we said in the above-cited case of Floreza:
We apply the ruling in Dario vs. Mison and Section 2 of Republic Act 6656 to this position. We
hold that Floreza was deprived of his right to security of tenure by his non-appointment to the
position of Revenue Service Chief or its new title under the reorganized Bureau of Internal
Revenue. It should be remembered that after February 2, 1987, any reorganization undertaken
by the government is circumscribed by the provisions and safeguards of the New Constitution.
Hence, when Floreza was not reappointed as Revenue Service Chief or as Assistant
Commissioner either in the Legal Service, or in the Planning and Research Service, and other
persons were reappointed to the positions, he was, in effect dismissed from the service in
violation not only of his right to security of tenure but to due process as well.
xxx xxx xxx
Section 2 of Republic Act No. 6655 entitles a victim of removal in violation of the bona fide rule
to a reinstatement or reappointment to the position from which he was removed. The fact that
there is now an appointee to the position he claims, holding an appointment signed by the
President, is of no moment, There was no vacancy in the office to which Jaime M. Masa was
appointed and, therefore, his promotion was not valid.

The argument of the Solicitor General that private respondent's assignment as COC of the
Export Division at NAIA was only in an acting capacity is unavailing. While it is true that an
acting appointment is merely temporary and revocable at the pleasure of the appointing
power, 29 this temporary appointment cannot be used by the appointing authority as an
argument or justification in order to evade or avoid the security of tenure principle in the
Constitution and the Civil Service Law. 30
Although it is true that the appointment of private respondent Fernandez as COC is without
any particular or fixed station and, generally he may be assigned anywhere as the exigencies
of the service may require, 31 nonetheless his reassignment as Acting Chief of the Export
Division at NAIA does not make his appointment as Customs Operation Chief I temporary and
revocable at the pleasure of the appointing power. He cannot be arbitrarily removed from a
particular division without reassigning him to another division nor can he be appointed to a
lower position without cause and without notice and hearing The appointing power cannot use
the device of an ambiguous designation to go around the security of tenure of a permanent
employee. 32
On the foregoing consideration, private respondent must be restored to his former position as
Chief of the Export Division at NAIA without prejudice to the power of the Commissioner of
Customs to reassign him to any other division as the exigencies of the service may require,
provided this is done in good faith for the best interests of the service or for valid cause.
It is also worthy of note that the order for the reinstatement of private respondent is in
consonance with our ruling in Dario vs. Mison, ante, that there was lack of good faith in the
reorganization of the Bureau of Customs. Apropos to the present case is this trenchant
observation therein: "There is no showing that legitimate structural changes have been made
or a reorganization actually undertaken, for that matter at the Bureau since
Commissioner Mison assumed office, which would have validly prompted him to hire and fire
employees. There can therefore be no actual reorganization to speak of, in the sense, say, of
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions, but a revamp of personnel pure and simple." 33
WHEREFORE, the petition at bar is DISMISSED and the questioned resolutions of
respondent Civil Service Commission are hereby AFFIRMED.
SO ORDERED.

SECOND DIVISION
[G.R. No. 117005. June 19, 1997]
CARLITO D. CORPUZ, petitioner, vs. HONORABLE COURT OF APPEALS (SIXTEENTH
DIVISION) and JUANITO ALVARADO, respondents.

DECISION
ROMERO, J.:
Petitioner Carlito Corpuz questions the decision of the Court of Appeals[1] affirming the decision of the
Regional Trial Court of Manila, Branch 10, dismissing the petition for review in Civil Case No. 9262869.
Corpuz filed an action for unlawful detainer against private respondent Juanito Alvarado with the
Metropolitan Trial Court of Manila, Branch 6, docketed as Civil Case No. 138532, for recovery of
possession of the room being occupied by the latter, which Corpuz' children allegedly needed for their
own use.
Alvarado and Corpuz were two of the tenants of a certain Lorenzo Barredo who, in May 1988,
decided to sell his property to the tenants. Due to economic difficulties, however, Alvarado and the
other lessees executed an "Affidavit of Waiver" granting Barredo the right to sell his house to any
person who can afford to purchase the same. Consequently, Barredo sold his house to Corpuz for
P37,500.00. As a result of the sale, a tenancy relationship was established between Corpuz and
Alvarado.
In October 1991, Corpuz sent a written notice to Alvarado demanding that he vacate the room which he
was occupying because the children of Corpuz needed it for their own use. Alvarado refused to vacate
the room as demanded, prompting Corpuz to seek his ejectment.
In his answer, Alvarado raised two major defenses, to wit: (1) the alleged "Affidavit of Waiver"
executed between him and Barredo was a forgery; and (2) the dispute was not referred to the Lupong
Tagapayapa.
Finding the defenses of Alvarado to be without merit, the MTC of Manila handed down on August 11,
1992 a decision ordering Alvarado to vacate the room.[2]
Feeling aggrieved, Alvarado appealed to the RTC. On March 11, 1993, said court rendered its
decision[3] which, in effect, reversed the MTC's decision on the ground that the purported sale between
Corpuz and Barredo was the subject of a controversy pending before the National Housing Authority
(NHA) which must be resolved first by said agency. It also concluded that the "Affidavit of Waiver"
executed by Alvarado and Barredo was a forgery. Consequently, it ordered the dismissal of the case
for unlawful detainer, and ruled that Alvarado cannot be legally expelled from the subject premises.
His motion for reconsideration of said decision having been denied for lack of merit by the RTC[4] on
July 16, 1993, Corpuz elevated his case to the Court of Appeals. The appellate court, however, found
no reversible error in the assailed judgment and affirmed the same in its entirety in its assailed decision
dated July 14, 1994.[5] A subsequent motion for reconsideration was likewise denied by the Court of
Appeals in its resolution dated September 1, 1994.[6] Hence, this petition.
The main issues presented in this petition is whether Corpuz' unlawful detainer suit filed before the
MTC against Alvarado should be suspended until the resolution of the case lodged in the NHA
impugning the sale of said property, and whether the "Affidavit of Waiver" between Corpuz and
Barredo was authentic. Corpuz maintains that the mere assertion challenging his ownership over the

said property is not a sufficient ground to divest the MTC of its exclusive jurisdiction.[7]
The petition is impressed with merit.
It is elementary that the MTC has exclusive jurisdiction over ejectment cases.[8] As the law now stands,
the only issue to be resolved in forcible entry and unlawful detainer cases is the physical or material
possession over the real property, that is, possession de facto.[9]
In the recent case of Refugia v. Court of Appeals,[10] however, we ruled that:
"In the case of De la Santa vs. Court of Appeals, et al., this Court, in making a distinction between the
reception of evidence and the resolution of the issue of ownership, held that the inferior court may look
into the evidence of title or ownership and possession de jure insofar as said evidence would indicate or
determine the nature of possession. It cannot, however, resolve the issue of ownership, that is, by
declaring who among the parties is the true and lawful owner of the subject property, because the
resolution of said issue would effect an adjudication on ownership which is not sanctioned in the
summary action for unlawful detainer. With this as a premise and taking into consideration the
amendment introduced by Batas Pambansa Blg. 129, it may be suggested that inferior courts are now
conditionally vested with adjudicatory power over the issue of title or ownership raised by the parties in
an ejectment suit."
Consequently, since the present petition involves the issue of possession intertwined with the issue of
ownership (i.e., the controversy pending in the NHA), the doctrinal pronouncement in Refugia is
applicable.
Parenthetically speaking, the issue raised in this petition is far from novel. The prevailing doctrine is
that suits or actions for the annulment of sale, title or document do not abate any ejectment action
respecting the same property.[11]
In Wilmor Auto Supply Construction Company Corporations, et al. v. Court of Appeals,[12] Justice
(now Chief Justice) Andres Narvasa outlined the following cases involving the annulment of the title or
document over the property which should not be considered in the abatement of an ejectment suit, to
wit:
"Neither do suits for annulment of sale, or title, or document affecting property operate to abate
ejectment actions respecting the same property (Salinas v. Navarro [annulment of deed of sale with
assumption of mortgage and/or to declare the same an equitable mortgage], 126 SCRA 167 [1983];
Ang Ping v. RTC [annulment of sale and title], 154 SCRA 153 [1987]; Caparros v. CA [annulment of
title], 170 SCRA 758 [1989]; Dante v. Sison [annulment of sale with damages], 174 SCRA 517;
Galgala v. Benguet Consolidated, Inc. [annulment of document], 177 SCRA 288 [1989]."
Clearly, the underlying reason for the above rulings is for the defendant not to trifle with the ejectment
suit, which is summary in nature, by the simple expedient of asserting ownership thereon. Thus, the
controversy pending before the NHA for the annulment of the Deed of Sale and assailing the
authenticity of the "Affidavit of Joint Waiver" cannot deter the MTC from taking cognizance of the
ejectment suit merely for the purpose of determining who has a better possessory right among the
parties.

It may be stressed that Alvarado is not without remedy. We have ruled that a judgment rendered in an
ejectment case shall not bar an action between the same parties respecting title to the land or building
nor shall it be conclusive as to the facts therein found in a case between the same parties upon a
different cause of action involving possession.[13]
Furthermore, Alvarado raises the issue in the instant petition that the ejectment suit was not referred to
the Lupon Tagapayapa as required by Presidential Decree No. 1508.
We are not persuaded. This defense was only stated in a single general short sentence in Alvarado's
answer. We have held in Dui v. Court of Appeals[14] that failure of a party to specifically allege the fact
that there was no compliance with the Barangay conciliation procedure constitutes a waiver of that
defense. A perusal of Alvarado's answer reveals that no reason or explanation was given to support his
allegation, which is deemed a mere general averment.
In any event, the proceeding outlined in P.D. 1508 is not a jurisdictional requirement and noncompliance therewith cannot affect the jurisdiction which the lower court had already acquired over the
subject matter and the parties therein.
WHEREFORE, the instant petition is GRANTED. The assailed decision dated July 14, 1994, of
respondent Court of Appeals is hereby REVERSED and SET ASIDE, and the judgment of the
Metropolitan Trial Court, Manila, Branch 6, in Civil Case No. 138532-CV dated August 11, 1992, is
hereby REINSTATED.
SO ORDERED.

FIRST DIVISION
[G.R. No. 123989. January 26, 1998]
ATTY. DAVID B. CORPUZ, petitioner, vs. COURT OF APPEALS, and MOVIE AND
TELEVISION REVIEW ANDCLASSIFICATION BOARD, respondents.
DECISION
DAVIDE, JR., J.:
Petitioner Atty. David Corpuz (hereafter CORPUZ) asks us to set aside the 13 October 1995
decision of the Court of Appeals in CA-G.R. SP-No. 37694 [1] which reversed Resolution No.
93-5964 of the Civil Service Commission (CSC),[2] the latter declaring that petitioners
separation from the service as Attorney V in the Movie Television Review Board (MTRCB)
was not in order and directed that he be automatically restored to his position.
The pleadings of the parties, the decision of the Court of Appeals and the Resolution of the
CSC disclose the following facts:

On 18 July 1986, CORPUZ was appointed as the MTRCBs legal Counsel -- Prosecutor and
Investigation Services (Supervising Legal Staff Officer).[3] The appointment was approved by
Asst. Regional Director Benita Santos of the CSC-National Capital Region. Subsequently,
CORPUZ position was designated Attorney V under the Salary Standardization Law.
As MTRCB Legal Counsel, CORPUZ duties included attendance in Board meetings
pursuant to then Chairman Moratos memorandum of 11 September 1987.[4]
Sometime in August 1991, the MTRCB passed MTRCB Resolution No. 8-1-91[5] entitled An
Act To Declare The Appointments Of The Administrative And Subordinate Employees Of This
Board As Null And Void. This undated resolution noted that the past and present Chairmen
of the MTRCB had failed to submit for approval the appointments of administrative and
subordinate employees to the MTRCB before forwarding them to the CSC, in violation of
Section 5 of P.D. No. 876-A, and later, P.D. No. 1986.[6] It thus declared:
FOR ALL OF THE FOREGOING, this Board, in Session Assembled, hereby declare[s] that
ALL the appointments of the present administrative and subordinate employees of this Board
suffers [sic] from illegality and therefore [are] considered invalid and of no value and effect ab
initio.
IT IS THEREFORE RESOLVED, AS IT IS HEREBY RESOLVED BY THIS BOARD, that the
Chairman recommend to this Board, the appointment of all or some of the present
administrative and subordinate employees of this Board, or new ones, at his initiative,
discretion and preference, including the category of the position for which the appointees [are]
recommended, within a period of ONE MONTH from the approval of this Resolution;
IT IS FURTHER RESOLVED, that in the interregnum, and in order not to disrupt the workings
and functions of this Board while this body is awaiting for [sic] the recommendation of the
appointments of the old and or new appointees, the present administrative and subordinate
employees shall hold on [to] their position[s] in an [sic] holdover capacity.
As certified by MTRCB Secretary Vicente G. Sales,[7] Resolution No. 8-1-91 was filed in his
office on 1 August 1991, while Resolution No. 10-2-91, a mere reiteration of Resolution No. 81-91, was approved by the MTRCB en banc on 9 October 1991. No copy of Resolution No.
10-2-91, however, was found in the records.
CORPUZ was unaware of the promulgation of Resolution No. 8-1-91 as he was then on
leave. The Resolution was likewise kept secret and it was only on 12 March 1993 that an
announcement[8] of its contents was posted by an Ad Hoc Committee on the MTRCB bulletin
board. This announcement invited the submission of any information concerning the
appointments involved therein to the Committee. It appears, however, that nothing was
immediately done to implement Resolution No. 8-1-91.
On 14 July 1992, Henrietta S. Mendez was appointed MTRCB Chairman. Thereafter, new
members of the Board were likewise appointed with Mendez assuming office in August 1992.
At the MTRCB meeting of 19 January 1993, Mendez was informed about Resolution No. 8-191. An Ad Hoc Committee composed of MTRCB members was then constituted to look into

the appointments extended by former Chairman Morato, as well as the qualifications of the
appointees. The Committee then posted on the MTRCB bulletin board the 12 March 1993
announcement mentioned above.
Thereafter, the Committee resolved to recommend to the MTRCB the approval of the
appointments, except that of CORPUZ and seven others.
In a Memorandum[9] dated 28 June 1993, Mendez informed CORPUZ that at the MTRCB
regular meeting of 25 June 1993, his appointment was disapproved effective 30 June 1993.
None of the parties attached to their pleadings a copy of the MTRCB Resolution disapproving
the appointment.
On 27 July 1993, CORPUZ and one Larry Rigor filed a complaint with the CSC requesting a
formal investigation and hearing. In her comment to the complaint, Mendez stated that she
discovered that the appointments extended by Morato were not submitted to the MTRCB for
approval pursuant to Section 5(c) of P.D. No. 1986; hence to cure the defect, she submitted
the appointments to the MTRCB.
On 31 August 1993, the CSC promulgated Resolution No. 93-3509 granting the MTRCB
authority to fill up positions vacated in the agency due to appointments which were not
submitted to the MTRCB for approval.[10]
However, in Resolution No. 93-5964[11] dated 23 December 1993, the CSC ruled in favor of
CORPUZ, as follows:
It must be appreciated that the appointment of Atty. Corpuz was approved by the Commission
because it was signed by Mr. Manuel Morato, then Chairman of [the] MTRCB and the duly
authorized signatory of MTRCB appointments. All the appointments signed by Mr. Morato in
his capacity as MTRCB Chairman are presumed to have been made after complying with all
the legal requirements including the Board approval, whether express or implied.
The appointment of Atty. Corpuz, if defective, could have been the subject of a direct action
for revocation or recall which may be brought to the Commission within a reasonable period
of time after its approval Since no such action was filed with the Commission, we can safely
state that Corpuz had already acquired security of tenure in the said position. Hence, the
Commission can not allow the current Boards disapproval of the said appointment to produce
any effect. Atty. Corpuz can no longer be separated from the service except for cause and
after observing the requirements of due process.
WHEREFORE, foregoing premises considered, the Commission hereby resolves to rule that
the separation of Mr. David Corpuz from the service is not in order. Accordingly, he is
automatically restored to his position of Atty. V with payment of back salaries.
The MTRCBs motion for reconsideration was denied by the CSC in Resolution No. 942551[12] dated 20 June 1994.
In the meantime, specifically on 22 August 1994, CORPUZ became a permanent employee of
the Ombudsman.[13]

The MTRCB filed with us a special civil action for certiorari which we referred to the Court of
Appeals in view of Republic Act No. 7902.[14] The Court of Appeals then docketed the case as
CA-G.R. SP No. 37694.
In its decision, the Court of Appeals declared null and void Resolution No. 93-5964 of the
CSC, ruling that since the appointment of CORPUZ was not approved by the MTRCB, the
appointment was invalid and he could not invoke security of tenure. In support of its ruling,
the Court of Appeals held:
Presidential Decree No. 1986, the law creating the Movie and Television Review and
Classification Board, specifically provides as follows:
Section 16. Organization Patterns; Personnel. -- The Board shall determine its
organizational structure and staffing pattern. It shall have the power to suspend or dismiss for
cause any employee and/or approve or disapprove the appointment, transfer or detail of
employees. It shall appoint the Secretary of the Board who shall be the official custodian of
the records of the meetings of the Board and who shall perform such other duties and
functions as directed by the Board. (Underscoring supplied)
The record shows that the appointment of respondent Atty. David Corpuz was not approved
by the Board, as mandated by Presidential Decree No. 1986, Section 16.
The Supreme Court, in a similar case has reiterated the importance of complying with legal
requirements for a valid appointment. In Tomali vs. Civil Service Commission (238 SCRA
572), it held:
Compliance with the legal requirements for an appointment to a civil service position is
essential in order to make it fully effective (Favis vs. Rupisan, 17 SCRA 190, cited in Mitra vs.
Subido, 21 SCRA 127). Without the favorable certification or approval of the Commission, in
cases when such an approval is required, no title to the office can yet be deemed to be
permanent; vested in favor of the appointee, and the appointment can still be recalled or
withdrawn by the appointing authority (Grospe vs. Secretary of Public Works and
Communication, 105 Phil. 129; Villanueva vs. Balallo, 9 SCRA 407; Suarez vs. Commission
on Elections, 20 SCRA 797). Until an appointment has become a completed act, it would
likewise be precipitate to invoke the rule of security of tenure (See Aquino vs. Civil Service
Commission, 208 SCRA 240; Mitra vs. Subido, 21 SCRA 797).
It appearing that respondent Atty. Corpuz appointment was not approved by the Board, the
same cannot be considered as [a] valid appointment. As such, he cannot invoke security of
tenure, even if he has rendered service for a number of years.
Neither would the silence or the failure of the Board to recall the private respondents
appointment constitute as a [sic] consent or confirmation. In the aforecited case, the
Supreme Court restated the existing jurisprudence on the matter, thus:
The tolerance, acquiescence or mistake of the proper officials, resulting in the nonobservance of the pertinent rules on the matter does not render the legal requirement, on the
necessity of the approval of the Commissioner on Civil Service of appointments, ineffective

and unenforceable. The employee, whose appointment was not approved, may only be
considered as a de facto officer. (Tomali vs. Civil Service Commission, supra citing Favis vs.
Rupisan, 17 SCRA 190, 191)
Thus, We find merit in petitioners contention that respondent Atty. David Corpuz did not
acquire a vested right nor does he presently enjoy a [sic] security of tenure to the subject
position in the MTRCB for failure to comply with the legal requirements needed for a valid
appointment. Hence, he cannot be reinstated. Not being a permanent employee of the
Movie and Television Review and Classification Board, the tenure of respondent Atty. Corpuz
ceased when he was not properly appointed under present law.
His motion for reconsideration having been denied in the Resolution [15] of 13 February 1996,
CORPUZ filed the instant petition under Rule 45 of the Rules of Court and asked us to
reverse the challenged decision of the Court of Appeals on the sole ground that:
THE COURT OF APPEALS ERRED IN RULING THAT THE APPOINTMENT OF
PETITIONER ATTY. DAVID B. CORPUZ DID NOT HAVE THE APPROVAL OF THE
MTRCB BOARD WHICH IF NOT CORRECTED, IS TANTAMOUNT TO A VIOLATION
OF HIS CONSTITUTIONAL RIGHTS TO SECURITY OF TENURE.
In his Memorandum, however, CORPUZ explicitly declared that he is no longer seeking
reinstatement with respondent MTRCB but for the continuity of his government service from
the time he was illegally dismissed on 30 June 1993 up to the time he was permanently
employed with the Office of the Ombudsman on 22 August 1994 plus back salaries and other
benefits due him if not for the illegal dismissal. [16]
Pursuant to Section 2 of P.D. No. 1986, the MTRCB is composed of a Chairman, a ViceChairman and thirty (30) members, all appointed by the President of the Philippines. Section
5 thereof enumerates the following functions, powers and duties of the Chairman as the Chief
Executive Officer of the MTRCB, to wit:
(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations
issued by the BOARD;
(b) Direct and supervise the operations and the internal affairs of the BOARD;
(c) Establish the internal organization and administrative procedures of the BOARD, and
recommend to the BOARD the appointment of the necessary administrative and
subordinate personnel; and
(d) Exercise such other powers and functions and perform such duties as are not
specifically lodged in the BOARD.
On the other hand, Section 16 thereof, quoted in the challenged decision of the Court of
Appeals, vests upon the Board itself the power to, inter alia, approve or disapprove the
appointments of its personnel.

It is thus clear that there are two stages in the process of appointing MTRCB personnel, other
than its Secretary, namely: (a) recommendation by the Chairman which is accomplished by
the signing of the appointment paper, which is among his powers under Section 5(d) above;
and (b) approval or disapproval by the MTRCB of the appointment. As to the Secretary, it is
the MTRCB itself that is empowered to appoint said official pursuant to Section 16.
It is long settled in the law of public offices and officers that where the power of appointment
is absolute, and the appointee has been determined upon, no further consent or approval is
necessary, and the formal evidence of the appointment, the commission, may issue at once.
Where, however, the assent or confirmation of some other officer or body is required, the
commission can issue or the appointment may be complete only when such assent or
confirmation is obtained. In either case, the appointment becomes complete when the last
act required of the appointing power is performed. [17] Until the process is completed, the
appointee can claim no vested right in the office nor invoke security of tenure. Hence, in the
case of CORPUZ, since the last act required for the completion of his appointment, viz.,
approval by the MTRCB itself, was not obtained, as a matter of fact, the MTRCB ultimately
disapproved it, his appointment ceased to have effect, if at all, and his services were properly
terminated. This Court so declared in Favis v. Rupisan[18] where the appointment involved
was not approved by the Civil Service Commission pursuant to Section 16(h) of R.A. No.
2260 and Section 2(a) of Rule VI of the Civil Service Rules implementing said law; Taboy v.
Court of Appeals[19] and Provincial Board of Cebu v. Presiding Judge of Cebu Court of First
Instance[20] where the appointments of subject employees were disapproved by the Provincial
Boards pursuant to the powers granted them; in Carillo v. Court of Appeals [21] where the
required consent of the municipal council in the appointment of the chief of police was not
obtained; and in Tomali v. Civil Service Commission,[22] which the Court of Appeals relied
upon, where the required submission to and approval by the Civil Service Commission were
not made as required by Section 9(h) of P.D. No. 807 and Section 11, Rule V of the Omnibus
Rules Implementing Book V of Executive Order No. 292, otherwise known as the
Administrative Code of 1987. In the latter, this Court held that compliance with the legal
requirements for an appointment to a civil service position is essential to make it fully
effective. That the employee involved had, in fact, assumed office and performed the
functions and duties thereof is of no moment, for it matters not that the appointee had served
for several years. Those years of service cannot substitute for the want of consent of another
body required by law to complete the appointment. The tolerance, acquiescence or mistake
of the proper officials resulting in non-observance of the requirements of law or rules to
complete the appointment does not render the requirements ineffective and unenforceable. [23]
A public official or employee who assumed office under an incomplete appointment is merely
a de facto officer for the duration of his occupancy of the office for the reason that he
assumed office under color of a known appointment which is void by reason of some defect or
irregularity in its exercise.[24] Undeniably, under the facts here, CORPUZ was such a de facto
officer.
WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October 1995
of the Court of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.
Costs against petitioner.

SO ORDERED.

Corpuz v. CAFacts:O n 1 8 J u l y 1 9 8 6 , A t t y . D a v i d C o r p u z w a s a p p o i n t e d a s t h e
M T R C B ' s l e g a l C o u n s e l Prosecutor and Investigation Services (Supervising Legal Staff
Officer). The appointment wasa p p r o v e d b y A s s t . R e g i o n a l D i r e c t o r B e n i t a
S a n t o s o f t h e C S C - N a t i o n a l C a p i t a l R e g i o n . Subsequently, CORPUZ' position
was designated Attorney V under the Salary Standardization L a w . A s M T R C B L e g a l
C o u n s e l , C o r p u z ' s d u t i e s i n c l u d e d " a t t e n d a n c e i n B o a r d m e e t i n g s " pursuant to then
Chairman Morato's memorandum of 11 September 1987. Sometime in August1 9 9 1 , t h e M T R C B
passed MTRCB Resolution No. 8-1-91 entitled "An Act To Declare
T h e Appointments Of The Administrative And Subordinate Employees Of This Board As
Null AndVoid." This undated resolution noted that the past and present Chairmen of the MTRCB had
failedto submit for approval the appointments of administrative and subordinate
employees to theMTRCB before forwarding them to the CSC, in violation of Section 5 of P.D. No.
876-A, and later,P.D. No. 1986. It thus declared that ALL the appointments of the present
administrative andsubordinate employees of this Board suffered from illegality and therefore are
considered invalidand of no value and effect ab initio. As certified by MTRCB Secretary Vicente G.
Sales, ResolutionN o . 8 - 1 - 9 1 w a s f i l e d i n h i s o f f i c e o n 1 A u g u s t 1 9 9 1 , w h i l e
R e s o l u t i o n N o . 1 0 - 2 - 9 1 , a m e r e reiteration of Resolution No. 8-1-91, was approved by the
MTRCB en banc on 9 October 1991. Nocopy of Resolution No. 10-2-91, however, was found in the
records. Corpuz was unaware of thepromulgation of Resolution No. 8-1-91 as he was then on leave.
The Resolution was likewise keptsecret and it was only on 12 March 1993 that an announcement of its
contents was posted by anAd Hoc Committee on the MTRCB bulletin board. This announcement
invited the submission of any information concerning the appointments involved therein to
the Committee. It appears,however, that nothing was immediately done to implement
Resolution No. 8-1-91. On 14 July1992, Henrietta S. Mendez was appointed MTRCB
Chairman. Thereafter, new members of the Board were likewise appointed with Mendez
assuming office in August 1992.At the MTRCB meeting of 19 January 1993, Mendez was informed
about Resolution No. 8-1-91. An Ad Hoc Committee composed of MTRCB members was then
constituted to look into thea p p o i n t m e n t s e x t e n d e d b y f o r m e r C h a i r m a n M o r a t o , a s
well as the qualifications of theappointees. The Committee then posted on the
M T R C B b u l l e t i n b o a r d t h e 1 2 M a r c h 1 9 9 3 announcement mentioned above. Thereafter,
the Committee resolved to recommend to the MTRCB the approval of the appointments,
except that of Corpuz and seven others.I n a M e m o r a n d u m d a t e d 2 8 J u n e 1 9 9 3 , M e n d e z
i n f o r m e d C o r p u z t h a t a t t h e M T R C B regular meeting of 25 June 1993, his appointment was
disapproved effective 30 June 1993. Noneof the parties attached to their pleadings a copy of
the MTRCB Resolution disapproving the appointment.On 27 July 1993, Corpuz and one Larry
Rigor filed a complaint with the CSC requesting aformal investigation and hearing. In her
comment to the complaint, Mendez stated that shediscovered that the appointments
extended by Morato were not submitted to the MTRCB for approval pursuant to Section 5(c) of
P.D. No. 1986; hence to cure the defect, she submitted theappointments to the MTRCB.On 31 August
1993, the CSC promulgated Resolution No. 93-3509 granting the MTRCB a u t h o r i t y t o
fill up positions vacated in the agency due to appointments which were
n o t submitted to the MTRCB for approval. However, CSC ruled in favor of Corpuz and
ordered hisreinstatement and payment of backwages. MTRCB's MR was denied by CSC.

In the meantime,specifically on 22 August 1994, CORPUZ became a permanent employee of the

Ombudsman. TheMTRCB filed with us a special civil action for certiorari which we referred to the
Court of Appealsin view of Republic Act No. 7902. The CA then declared null and void Resolution
No. 93-5964 of the CSC, ruling that since the appointment of Corpuz was not approved by
the MTRCB, theappointment was invalid and he could not invoke security of tenure. Corpuzs MR
was denied.
Issue:Whether the CA erred in ruling that Corpuzs appointment did not have the approval of
theMTRCB Board
Held:No. There are two stages in the process of appointing MTRCB personnel, other than
itsSecretary, namely: (a) recommendation by the Chairman which is accomplished by the signing
of the appointment paper, which is among his powers under Section 5(d) above; and (b) approvalor
disapproval by the MTRCB of the appointment. As to the Secretary, it is the MTRCB itself thatis
empowered to appoint said official pursuant to Section 16.I t i s l o n g s e t t l e d i n t h e l a w o f p u b l i c
o f f i c e s a n d o f f i c e r s t h a t w h e r e t h e p o w e r o f appointment is absolute, and the
appointee has been determined upon, no further consent or approval is necessary, and the
formal evidence of the appointment, the commission, may issueat once. Where, however, the assent or
confirmation of some other officer or body is required,t h e c o m m i s s i o n c a n i s s u e o r t h e
a p p o i n t m e n t m a y b e c o m p l e t e o n l y w h e n s u c h a s s e n t o r confirmation is obtained. In
either case, the appointment becomes complete when the last actrequired of the appointing power is
performed. Until the process is completed, the appointeec a n c l a i m n o v e s t e d r i g h t i n t h e
o f f i c e n o r i n v o k e s e c u r i t y o f t e n u r e . H e n c e , i n t h e c a s e o f Corpuz, since the last act
required for the completion of his appointment, viz., approval by theMTRCB itself, was not
obtained, as a matter of fact, the MTRCB ultimately disapproved it, hisappointment
ceased to have effect, if at all, and his services were properly terminated. This Court so
declared in Favis v. Rupisan where the appointment involved was not approved by theCivil Service
Commission pursuant to Section 16(h) of R.A. No. 2260 and Section 2(a) of Rule VIof the Civil
Service Rules implementing said law; Taboy v. Court of Appeals and Provincial Boardof Cebu v.
Presiding Judge of Cebu Court of First Instance where the appointments of
subjectemployees were disapproved by the Provincial Boards pursuant to the powers granted them;
inC a r i l l o v . C o u r t o f A p p e a l s w h e r e t h e r e q u i r e d c o n s e n t o f t h e
m u n i c i p a l c o u n c i l i n t h e appointment of the chief of police was not obtained; and in Tomali
v. Civil Service Commission,which the Court of Appeals relied upon, where the required submission to
and approval by theCivil Service Commission were not made as required by Section 9(h) of P.D. No.
807 and Section11, Rule V of the Omnibus Rules Implementing Book V of Executive Order
No. 292, otherwiseknown as the Administrative Code of 1987. In the latter, this Court held that
compliance with thelegal requirements for an appointment to a civil service position is
essential to make it fullyeffective. That the employee involved had, in fact, assumed office and
performed the functionsand duties thereof is of no moment, for it matters not that the appointee had
served for severalyears. Those years of service cannot substitute for the want of consent of another
body requiredby law to complete the appointment. The tolerance, acquiescence or mistake
of the propero f f i c i a l s r e s u l t i n g i n n o n - o b s e r v a n c e o f t h e r e q u i r e m e n t s o f l a w o r
r u l e s t o c o m p l e t e t h e appointment does not render the requirements ineffective and
unenforceable.A public official or employee who assumed office under an incomplete
appointment ismerely a de facto officer for the duration of his occupancy of the office for
the reason that heassumed office under color of a known appointment which is void by reason of
some defect orirregularity in its exercise. Undeniably, under the facts here, CORPUZ was such a de
facto officer

EN BANC

G.R. No. 92403 April 22, 1992

VICTOR A. AQUINO, petitioner,
vs.
CIVIL SERVICE COMMISSION and LEONARDA D. DE LA PAZ, respondents.

MEDIALDEA, J.:
This petition for certiorari with prayer for the issuance of a restraining order seeks to nullify the
resolutions issued by the respondent Civil Service Commission, namely: (1) Resolution No.
88-820 dated November 7, 1988 reversing the decision of the Merit Systems Protection Board
dated February 5, 1988 which sustained the decision of the Secretary of Education, Culture
and Sports dated May 4, 1987 upholding the appointment of Mr. Victor A. Aquino as Supply
Officer I in the DECS, Division of San Pablo City; and (2) Resolution No. 90-224 dated
February 27, 1990 denying the motion for reconsideration with prayer for issuance of
temporary restraining order for lack of merit.
The antecedent facts are as follows:
Petitioner Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of
San Pablo City, was designated on July 20, 1984 as Officer-in-Charge of the Division Supply
Office by the DECS Regional Director Saturnino R. Magturo (Annex "H", petition, p. 55, Rollo)
in view of the retirement of the Supply Officer I, Mr. Jose I. Aviquivil.
Prior to such designation, or from the period February 16, 1984 to June 16, 1984, petitioner
was designated as Property Inspector and In-Charge of the Supply Office performing the
duties and responsibilities of the Supply Officer I (p. 55, Rollo).
Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of City
Schools of San Pablo City, Milagros Tagle, issued a promotional appointment to private
respondent Leonarda D. de la Paz as Supply Officer I in the DECS Division of San Pablo City.
She assumed and performed the duties and functions of the position and received the
compensation and benefits therefor.

At the time of her appointment, private respondent was then holding the position of Clerk II,
Division of City Schools of San Pablo City. From August 25, 1976 to September 1983, she
was designated as Assistant to the Supply Officer (DECS decision, p. 31, Rollo). The Civil
Service Regional Office IV approved her appointment as permanent "provided that there is no
pending administrative case against the appointee, no pending protest against the
appointment, nor any decision by competent authority that will adversely affect the approval of
(the) appointment" (Annex "A", Comment of CSC, p 164, Rollo).
One (1) month after, or on October 20, 1986 petitioner filed a protest with the DECS
Secretary questioning the qualification and competence of private respondent for the position
of Supply Officer I.
In a decision dated May 4, 1987, DECS Secretary Lourdes R. Quisumbing sustained the
protest of petitioner and revoked the appointment of private respondent as Supply Officer I
thus:
From the foregoing comparative statement of the qualifications of Mr. Aquino and Mrs. de la
Paz, apparently the former has a decided advantage over the latter in terms of education,
experience and training. Further examination of the comparative statement shows that Mrs. de
la Paz has had no relevant in-service training course attended and completed. Accordingly,
therefore, Mr. Aquino is preferred to Mrs. de la Paz for appointment as Supply Officer I.
xxx xxx xxx
Based on all the foregoing and as records further show that Mr. Aquino is competent and
qualified to hold the subject position and possesses the eligibility requirement, this Office finds
the instant protest meritorious and hereby rules and so rules that Mr. Aquino be appointed
Supply Officer I in place of Mrs. de la Paz, whose appointment thereto is deemed revoked. (p.
Annex "C", pp. 30-31, Rollo)

Private respondent then filed her petition for reconsideration of the aforequoted DECS
decision but the same was denied by Secretary Quisumbing in a Resolution dated August 11,
1967.
On the bases of the aforementioned rulings of the DECS Secretary, petitioner Aquino was
issued a permanent appointment dated August 11, 1987 as Supply Officer I by the DECS
Regional Director Pedro San Vicente effective October 26, 1987. On the date of effectivity of
his appointment, petitioner assumed the duties and functions of the position. The said
appointment was approved by the Civil Service Regional Office IV on October 27, 1987.
For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal with
motion to maintain status quo to the Merit Systems Protection Board (MSPB) which, on
February 5, 1988, rendered a decision upholding the appointment of Aquino as Supply Officer
I (Annex "D", petition pp. 33-35, Rollo).
From the decision of the MSPB, private respondent appealed to public respondent Civil
Service Commission (CSC).

In Resolution No, 88-820 dated November 7, 1988, public respondent CSC found the appeal
of private respondent meritorious, thus revoking the appointment of petitioner Aquino and
restoring private respondent de la Paz to her position as Supply Officer I, DECS, Division of
San Pablo City under her previously approved appointment (Annex "B", petition, pp. 26-29,
Rollo).
From said decision, petitioner filed a motion for reconsideration with prayer for issuance of a
temporary restraining order. Finding no merit to the motion for reconsideration filed by
petitioner, public respondent CSC issued Resolution No. 90-224 dated February 27, 1990
denying said motion (Annex "A", petition, pp. 21- 24, Rollo).
Hence, this petition seeking the reversal of public respondent Commission's action on
petitioner's appointment.
Two (2) interrelated issues on the extent of authority of the Civil Service Commission to pass
upon the contested appointments were raised by petitioner which could be simplified into
whether or not public respondent Civil Service Commission committed grave abuse of
discretion in revoking the appointment of petitioner Victor A. Aquino as Supply Officer I in the
DECS Division of San Pablo City as it found private respondent Leonarda de la Paz better
qualified.
In assailing the two (2) CSC Resolutions revoking his appointment, petitioner invokes the
ruling of this Court in the case of Santiago v. Civil Service Commission, G.R. No. 81467,
October 27, 1989, 178 SCRA 733 and Galura v. Civil Service Commission, G.R. 85812, June
1, 1989 (En Banc resolution) that the Civil Service Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position for
that would have constituted an encroachment on the discretion vested solely in the appointing
authority. The Civil Service Commission cannot exceed its power by substituting its will for
that of the appointing authority.
In support of petitioner's cause, the Solicitor General stresses the wide latitude of discretion
given to the appointing authority in the selection and appointment of qualified persons to
vacant positions in the civil service which was emphasized by the Court as rationale for the
rule laid down in Luego v. Civil Service Commission, G.R. No. 69137, August 5, 1986, 143
SCRA 327, Central Bank v. CSC, G.R. No. 80455-56, April 10, 1989, 171 SCRA 744,
Patagoc v. CSC, G.R. No. 90229, May 14, 1990, 185 SCRA 411, that public respondent CSC,
not being the "appointing power" in contemplation of law, has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position and
that the Commission has no authority to direct the appointment of a substitute of its choice.
We have consistently applied the above doctrine in many cases with similar factual
circumstances, but we see no compelling reason to apply the same in the instant case. In the
cases cited above, We ruled that the Civil Service Commission has no authority to revoke an
appointment simply because it (CSC) believed that another person is better qualified than the
appointee for it would constitute an encroachment on the discretion solely vested on the
appointing authority. The situation is different as in the instant case, where the Civil Service
Commission revoked the appointment of the successful protestant, petitioner herein,
principally because the right to security of tenure of the prior appointee, private respondent

herein, to the contested position had already attached (see CSC decision, pp. 28-29, Rollo). It
must be noted that public respondent CSC did not direct the appointment of a substitute of its
choice. It merely restored the appointment of private respondent who was first appointed to
the contested position.
The records show that private respondent was issued a permanent appointment on
September 19, 1986 as Supply Officer I in the DECS Division of San Pablo City effective
September 30, 1986. On the basis of the of said appointment which was approved by the Civil
Service Regional Office No. IV, private respondent assumed and performed the duties and
functions of the position as Supply Officer I and received the compensation and benefits of
the said position in accordance with the mandate of Section 9 par.(h) of the Civil Service Law
(P.D. 807, as amended). In consonance with the doctrine laid down in Villanueva v. Balallo,
G.R. No. L-17745, October 31, 1963, 9 SCRA 407, that an appointment is complete when the
last act required of the appointing power has been performed, but later qualified in Favis v.
Rupisan, G.R. No. L-22823, May 19, 1966, 17 SCRA 190, that the acts of the head of a
department or office making the appointment and the Commissioner of Civil Service acting
together, though not concurrently, but consecutively, are necessary to make an appointment
complete, the permanent appointment extended to private respondent, under the
circumstances of the case, is deemed complete. As such, she is entitled to the protection of
the law against unjust removal.
The conclusion of respondent Commission in the questioned decision that private respondent
is more qualified than petitioner merely supports the validity of the restoration of private
respondent to her previously approved appointment considering that she meets the
prescribed qualification standards required of the position of Supply Officer I and the
appropriate civil service eligibility, to wit:
EDUCATION: Bachelor's degree with training in Supply Management
EXPERIENCE: None required
ELIGIBILITY: Supply Officer; Career Service (Professional)

It is well-settled that once an appointment is issued and the moment the appointee assumes a
position in the civil service under a completed appointment, he acquires a legal, not merely
equitable right (to the position), which is protected not only by statute, but also by the
Constitution, and cannot be taken away from him either by revocation of the appointment, or
by removal, except for cause, and with previous notice and hearing (Mitra v. Subido, G.R No.
L-21691, September 15, 1967, 21 SCRA 127.
There is also authority for the rule that when the appointing power has once acted and the
appointee has accepted the office and done what is required of him upon its acceptance, his
title to the office becomes complete, and he can then be removed only in the regular way
(Mechem, Law of Public Offices and Officers, Sec. 461, p. 294, citing Marbury v. Madison, 1
Cranch (U.S.) 137). The appointing power can not effect his removal indirectly by rescinding
or revoking his appointment after it is complete.
There is thus reasonable ground for the rule that the moment the discretionary power of
appointment has been exercised and the appointee assumed the duties and functions of the
position, the said appointment cannot be revoked by the appointing authority on the ground

merely that the protestant is more qualified than the first appointee, subject however to the
condition that the first appointee should possess the minimum qualifications required by law.
Otherwise, the security of tenure guaranteed by Article IX-B, Section 2 par. (3) of the 1987
Constitution would be rendered meaningless if the appointing authority is allowed to flip-flop in
exercising its discretionary power of appointment.
While a protest is a made of action that may be availed of by the aggrieved party to contest
the appointment made, the protest must be "for cause" or predicated on those grounds
provided for under Section 19 par. (6) of the Civil Service Law (P.D. 807), namely: (1) that the
appointee is not qualified; (2) that the appointee is not the next-in-rank; and (3) in case of
appointment by transfer, reinstatement, or by original appointment, that the protestant is not
satisfied with the written special reason or reasons given by the appointing authority.
We have defined the concept of "for cause" in connection with removal of public officers in the
case of De los Santos v. Mallare, G.R. No. L-3881, August 31, 1950, 87 Phil. 289, as follows:
"It means for reasons which the law and sound public policy recognized as sufficient warrant
for removal, that is legal cause, and not merely causes which the appointing power in the
exercise of discretion may deem sufficient. It is implied that officers may not be removed at
the mere will of those vested with the power of removal, or without any cause. Moreover, the
cause must relate to and affect the administration of the office, and must be restricted to
something of a substantial nature directly affecting the rights and interests of the public."
The ground relied upon by petitioner in his protest that he is more qualified than private
respondent in terms of education, experience and training does not fall within the meaning of
"for cause" contemplated by Article IX-B, Section 2 par. (3) of the 1987 Constitution which
would warrant the revocation, if not removal, of the appointment of private respondent.
Neither does it fall under the grounds of appeal contemplated under Section 19 par. (6) of the
Civil Service Law (P.D. 807). Therefore, the protest of petitioner did not adversely affect the
approval of the appointment of private respondent.
Even on the assumption that the revocation of private respondent's appointment was validly
exercised by DECS Secretary Quisumbing, still the appointment extended to petitioner was
tainted with irregularity as it was issued before the finality of the decision on the protest in
violation of CSC Resolution No. 83-343 which prohibits the issuance of an appointment to
protestant (petitioner) if the protest case is not yet finally resolved, since there is no vacancy
in the position pending resolution of the protest case. There can be no appointment to a nonvacant position. The incumbent must first be legally removed or his appointment validly
terminated (Costin v. Quimbo, G.R. No. L-32271, January 27, 1983, 120 SCRA 159). An
appointment to an office which is not vacant is null and void ab initio (Morata v. Court of
Appeals, G.R. No. L-18975, May 25, 1964, 11 SCRA 42).
CSC Resolution No. 83-343 provides, thus:
An appointment though contested shall take effect immediately upon issuance if the appointee
assumes the duties of the position and (the) appointee is entitled to receive the salary attached
to the position. Likewise such appointment shall become ineffective in case the protest is finally
resolved in favor of the protestant, in which case the protestee shall be reverted to his former
position. (p. 223, Rollo)

Records reveal that the decision of the DECS Secretary revoking the appointment of private
respondent was rendered on May 4, 1987 and the motion for reconsideration filed by private
respondent was denied on August 11, 1987. The appointment issued to petitioner as Supply
Officer I was dated August 11, 1987 and he assumed the position on October 26, 1987 (date
of effectivity of his appointment) as reported by the Schools Division Superintendent of San
Pablo City (pp. 77-78, Rollo). From all indications, the appointment of petitioner dated August
11, 1987 was issued with undue haste before the finality of the denial of the motion for
reconsideration.
While it is true that the appointing authority has a wide latitude of discretion in making his
choice in the selection and appointment of qualified persons to vacant positions in the civil
service, we cannot, however, give a stamp of approval to such a procedural irregularity in
extending appointments, as in the instant case, to the prejudice of the right to security of
tenure of the incumbent to the position.
ACCORDINGLY, the petition is DENIED. The decision dated May 4, 1987 and the resolution
dated August 11, 1987 of the respondent Civil Service Commission are hereby AFFIRMED.
The Secretary of the Department of Education, Culture and Sports is hereby directed to
restore private respondent Leonarda de la Paz to her previously approved appointment as
Supply Officer I, DECS, Division of San Pablo City.
SO ORDERED.

EN BANC
[G. R. No. 140335. December 13, 2000]
THELMA P. GAMINDE, Petitioner, v. COMMISSION ON AUDIT and/or Hon. CELSO D.
GANGAN, Hon. RAUL C. FLORES and EMMANUEL M. DALMAN, Respondents.
DECISION
PARDO, J.:
The Case

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The case is a special civil action of certiorari seeking to annul and set
aside two decisions of the Commission on Audit ruling that petitioners
term of office as Commissioner, Civil Service Commission, to which she
was appointed on June 11, 1993, expired on February 02, 1999, as set
forth in her appointment paper.

The Facts

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On June 11, 1993, the President of the Philippines appointed petitioner

Thelma P. Gaminde, ad interim, Commissioner, Civil Service Commission.
She assumed office on June 22, 1993, after taking an oath of office. On
September 07, 1993, the Commission on Appointment, Congress of the
Philippines confirmed the appointment. We quote verbatim her
appointment paper:
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11 June 1993

Madam:

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Pursuant to the provisions of existing laws, you are hereby appointed, ad interim,
COMMISSIONER, CIVIL SERVICE COMMISSION, for a term expiring February 2,
1999.
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By virtue hereof, you may qualify and enter upon the performance of the duties of the
office, furnishing this Office and the Civil Service Commission with copies of your oath of
office.[1
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However, on February 24, 1998, petitioner sought clarification from the

Office of the President as to the expiry date of her term of office. In reply
to her request, the Chief Presidential Legal Counsel, in a letter dated
April 07, 1998[2 opined that petitioners term of office would expire on
February 02, 2000, not on February 02, 1999.
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Relying on said advisory opinion, petitioner remained in office after

February 02, 1999. On February 04, 1999, Chairman Corazon Alma G. de
Leon, wrote the Commission on Audit requesting opinion on whether or
not Commissioner Thelma P. Gaminde and her co-terminous staff may be
paid their salaries notwithstanding the expiration of their appointments
on February 02, 1999.
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On February 18, 1999, the General Counsel, Commission on Audit, issued

an opinion that the term of Commissioner Gaminde has expired on
February 02, 1999 as stated in her appointment conformably with the
constitutional intent.[3
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Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe

issued notice of disallowance No. 99-002-101 (99), disallowing in audit
the salaries and emoluments pertaining to petitioner and her coterminous staff, effective February 02, 1999. 4
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On April 5, 1999, petitioner appealed the disallowance to the Commission

on Audit en banc. On June 15, 1999, the Commission on Audit issued
Decision No. 99-090 dismissing petitioners appeal. The Commission on
Audit affirmed the propriety of the disallowance, holding that the issue of
petitioners term of office may be properly addressed by mere reference
to her appointment paper which set the expiration date on February 02,
1999, and that the Commission is bereft of power to recognize an
extension of her term, not even with the implied acquiescence of the
Office of the President.[5
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In time, petitioner moved for reconsideration; however, on August 17,

1999, the Commission on Audit denied the motion in Decision No. 99129.[6
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Hence, this petition.7

The Issue

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The basic issue raised is whether the term of office of Atty. Thelma P.
Gaminde, as Commissioner, Civil Service Commission, to which she was
appointed on June 11, 1993, expired on February 02, 1999, as stated in
the appointment paper, or on February 02, 2000, as claimed by her.
The Courts Ruling

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The term of office of the Chairman and members of the Civil Service
Commission is prescribed in the 1987 Constitution, as follows:
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Section 1 (2). The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, a Commissioner for five
years, and another Commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.[8
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The 1973 Constitution introduced the first system of a regular rotation or

cycle in the membership of the Civil Service Commission. The provision
on the 1973 Constitution reads:
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x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term
of seven years without reappointment. Of the Commissioners first appointed, one shall hold
office for seven years, another for five years, and the third for three years. Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor.9
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Actually, this was a copy of the Constitutional prescription in the

amended 1935 Constitution of a rotational system for the appointment of
the Chairman and members of the Commission on Elections. The
Constitutional amendment creating an independent Commission on
Elections provides as follows:
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Section 1. There shall be an independent Commission on Elections composed of a Chairman and

two other Members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine years, another for six
years, and the third for three years. The Chairman and the other Members of the Commission on
Elections may be removed from office only by impeachment in the manner provided in this
Constitution."[10
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In Republic vs. Imperial,11 we said that the operation of the rotational

plan requires two conditions, both indispensable to its workability: (1)
that the terms of the first three (3) Commissioners should start on a
common date, and, (2) that any vacancy due to death, resignation or
disability before the expiration of the term should only be filled only for
the unexpired balance of the term.12
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Consequently, the terms of the first Chairmen and Commissioners of the

Constitutional Commissions under the 1987 Constitution must start on a
common date, irrespective of the variations in the dates of appointments
and qualifications of the appointees, in order that the expiration of the
first terms of seven, five and three years should lead to the regular
recurrence of the two-year interval between the expiration of the terms.
[13

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Applying the foregoing conditions to the case at bar, we rule that the
appropriate starting point of the terms of office of the
What the above quoted Transitory Provisions contemplate is tenure not
term of the incumbent Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the Commission on Audit,
who shall continue in office for one year after the ratification of this
Constitution, unless they are sooner removed for cause or become

incapacitated to discharge the duties of their office or appointed to a new

term thereunder. The term unless imports an exception to the general
rule.17 Clearly, the transitory provisions mean that the incumbent
members of the Constitutional Commissions shall continue in office for
one year after the ratification of this Constitution under their existing
appointments at the discretion of the appointing power, who may cut
short their tenure by: (1) their removal from office for cause; (2) their
becoming incapacitated to discharge the duties of their office, or (3)
their appointment to a new term thereunder, all of which events may
occur before the end of the one year period after the effectivity of the
Constitution.
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However, the transitory provisions do not affect the term of office fixed
in Article IX, providing for a seven-five-three year rotational interval for
the first appointees under this Constitution.
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At the time of the adoption of the 1987 Constitution, the incumbent

Chairman and members of the Civil Service Commission were the
following: (1) Chairperson Celerina G. Gotladera. She was initially
appointed as OIC Chairman on March 19, 1986, and appointed chairman
on December 24, 1986, which she assumed on March 13, 1987. (2) Atty.
Cirilo G. Montejo. On June 25, 1986, President Corazon C. Aquino
appointed him Commissioner, without any term. He assumed office on
July 9, 1986, and served until March 31, 1987, when he filed a certificate
of candidacy for the position of Congressman, 2 District, Leyte, thereby
vacating his position as Commissioner. His tenure was automatically cutoff by the filing of his certificate of candidacy. (3) Atty. Mario D. Yango.
On January 22, 1985, President Ferdinand E. Marcos appointed him
Commissioner for a term expiring January 25, 1990. He served until
February 2, 1988, when his term ended in virtue of the transitory
provisions referred to. On May 30, 1988, President Aquino re-appointed
him to a new three-year term and served until May 31, 1991, exceeding
his lawful term, but not exceeding the maximum of seven years,
including service before the ratification of the 1987 Constitution. Under
this factual milieu, it was only Commissioner Yango who was extended a
new term under the 1987 Constitution. The period consumed between
the start of the term on February 02, 1987, and his actual assumption on
May 30, 1988, due to his belated appointment, must be counted against
him.
nd

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Given the foregoing common starting point, we compute the terms of the
first appointees and their successors to the Civil Service Commission
under the 1987 Constitution by their respective lines, as follows:
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First line : Chairman seven-year term. February 02, 1987 to February 01,
1994. On January 30, 1988, the President nominated Ms. Patricia A. Sto.
Tomas Chairman, Civil Service Commission. On March 02, 1988, the
Commission on Appointments confirmed the nomination. She assumed
office on March 04, 1988. Her term ended on February 02, 1994. She
served as de facto Chairman until March 04, 1995. On March 05, 1995,
the President appointed then Social Welfare Secretary Corazon Alma G.
de Leon, Chairman, Civil Service Commission, to a regular seven-year
term. This term must be deemed to start on February 02, 1994,
immediately succeeding her predecessor, whose term started on the
common date of the terms of office of the first appointees under the
1987 Constitution. She assumed office on March 22, 1995, for a term
expiring February 02, 2001.
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This is shown in her appointment paper, quoted verbatim as follows:

March 5, 1995

Madam:

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Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the Constitution,
you are hereby appointed, ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a
term expiring February 2, 2001.
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By virtue hereof, you may qualify and enter upon the performance of the duties of the
office, furnishing this Office and the Civil Service Commission with copies of your oath of
office.
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(Sgd.) FIDEL V. RAMOS

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Second line : Commissioner Five-year term. February 02, 1987 to

February 02, 1992. On January 30, 1988, the President nominated Atty.
Samilo N. Barlongay Commissioner, Civil Service Commission. On
February 17, 1988, the Commission on Appointments, Congress of the
Philippines, confirmed the nomination. He assumed office on March 04,
1988. His term ended on February 02, 1992. He served as de facto
Commissioner until March 04, 1993.
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On June 11, 1993, the President appointed Atty. Thelma P. Gaminde

Commissioner, Civil Service Commission, for a term expiring February 02,
1999.18 This terminal date is specified in her appointment paper. On
September 07, 1993, the Commission on Appointments confirmed the
appointment. She accepted the appointment and assumed office on June
22, 1993. She is bound by the term of the appointment she accepted,
expiring February 02, 1999. In this connection, the letter dated April 07,
1998, of Deputy Executive Secretary Renato C. Corona [19 clarifying that

her term would expire on February 02, 2000, was in error. What was
submitted to the Commission on Appointments was a nomination for a
term expiring on February 02, 1999. Thus, the term of her successor [20
must be deemed to start on February 02, 1999, and expire on February
02, 2006.
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Third line : Commissioner Three-year term. February 02, 1987 to

February 02, 1990. Atty. Mario D. Yango was incumbent commissioner at
the time of the adoption of the 1987 Constitution. His extended tenure
ended on February 02, 1988. In May, 1988, President Corazon C. Aquino
appointed him Commissioner, Civil Service Commission to a new threeyear term thereunder. He assumed office on May 30, 1988. His term
ended on February 02, 1990, but served as de facto Commissioner until
May 31, 1991. On November 26, 1991, the President nominated Atty.
Ramon P. Ereeta as Commissioner, Civil Service Commission. On
December 04, 1991, the Commission on Appointments confirmed the
nomination. He assumed office on December 12, 1991, for a term
expiring February 02, 1997.21
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Commendably, he voluntarily retired on February 02, 1997. On February

03, 1997, President Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr.
Commissioner, Civil Service Commission, for a term expiring February 02,
2004. He assumed office on February 11, 1997.
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Thus, we see the regular interval of vacancy every two (2) years, namely,
February 02, 1994, for the first Chairman, 22 February 02, 1992, for the
first five-year term Commissioner,23 and February 02, 1990, for the first
three-year term Commissioner.24 Their successors must also maintain the
two year interval, namely: February 02, 2001, for Chairman; [25 February
02, 1999, for Commissioner Thelma P. Gaminde, and February 02, 1997,
for Commissioner Ramon P. Ereeta, Jr.
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The third batch of appointees would then be having terms of office as

follows:
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First line : Chairman, February 02, 2001 to February 02, 2008; Second
line: Commissioner, February 02, 1999 to February 02, 2006; [26 and,
Third line: Commissioner, February 02, 1997 to February 02, 2004, 27
thereby consistently maintaining the two-year interval.
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The line of succession, terms of office and tenure of the Chairman and
members of the Civil Service Commission may be outlined as follows: [28
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Chairman Term
(7-year original)

Tenure
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Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to
Feb. 02, 1994 March08, 1995

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De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995 to

(incumbent)

Feb.02, 2001 Feb. 02, 2001

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_______ - 3rd appointee Feb. 02, 2001 to

Feb. 02, 2008

2nd Member Term

(5-year original)

Tenure

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Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988 to

Feb. 02, 1992 March04, 1993

Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to

Feb. 02, 1999 Feb.02, 2000

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Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to

(incumbent)
3 Member
(3-year original)

Feb.02, 2006Feb. 02, 2006

TermTenure

rd

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Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to

Feb. 02, 1990 May31, 1991

Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to

Feb. 02, 1997 Feb.02, 1997

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Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to

(incumbent)

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Feb.02, 2004 Feb. 02, 2004

The Fallo

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WHEREFORE, we adjudge that the term of office of Ms. Thelma P.

Gaminde as Commissioner, Civil Service Commission, under an
appointment extended to her by President Fidel V. Ramos on June 11,
1993, expired on February 02, 1999. However, she served as de facto
officer in good faith until February 02, 2000, and thus entitled to receive
her salary and other emoluments for actual service rendered.
Consequently, the Commission on Audit erred in disallowing in audit such
salary and other emoluments, including that of her co-terminous staff.

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ACCORDINGLY, we REVERSE the decisions of the Commission on Audit

insofar as they disallow the salaries and emoluments of Commissioner
Thelma P. Gaminde and her coterminous staff during her tenure as de
facto officer from February 02, 1999, until February 02, 2000.
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This decision shall be effective immediately.

No costs.

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SO ORDERED.

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EN BANC

[G.R. No. 107369. August 11, 1999]

JESULITO A. MANALO, petitioner, vs. PEDRO G. SISTOZA, REGINO ARO III, NICASIO MA.
CUSTODIO, GUILLERMO DOMONDON, RAYMUNDO L. LOGAN, WILFREDO R.
REOTUTAR, FELINO C. PACHECO, JR., RUBEN J. CRUZ, GERONIMO B. VALDERRAMA,
MERARDO G. ABAYA, EVERLINO B. NARTATEZ, ENRIQUE T. BULAN, PEDRO J.
NAVARRO, DOMINADOR M. MANGUBAT, RODOLFO M. GARCIA and HONORABLE
SALVADOR M. ENRIQUEZ II In His Capacity as Secretary of Budget and Management,
respondents.
DECISION
PURISIMA, J.:
The case at bar is not of first impression. The issue posed concerning the limits of the power of the
Commission on Appointments to confirm appointments issued by the Chief Executive has been put to
rest in a number of cases. The court finds no basis for departing from the ruling laid down in those
cases.
In this special civil action for Prohibition under Rule 65 of the Revised Rules of Court, petitioners
question the constitutionality and legality of the permanent appointments issued by former President
Corazon C. Aquino to the respondent senior officers of the Philippine National Police who were
promoted to the ranks of Chief Superintendent and Director without their appointments submitted to
the Commission on Appointments for confirmation under Section 16, Article VII of the 1987
Constitution and Republic Act 6975 otherwise known as the Local Government Act of 1990.
Impleaded in the case is the former Secretary of Budget and Management Salvador M. Enriquez III,
who approved and effected the disbursements for the salaries and other emoluments of subject police
officers.
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the Department of Interior and Local Government
was signed into law by former President Corazon C. Aquino. Pertinent provisions of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP Chief. - The command and direction of the
PNP shall be vested in the Chief of the PNP who shall have the power to direct and control tactical as
well as strategic movements, deployment, placement, utilization of the PNP or any of its units and

personal, including its equipment, facilities and other resources. Such command and direction of the
Chief of the PNP may be delegated to subordinate officials with respect to the units under their
respective commands, in accordance with the rules and regulations prescribed by the Commission. The
Chief of the PNP shal also have the power to issue detailed implementing policies and instructions
regarding personnel, funds, properties, records, correspondence and such other matters as may be
necesary to effectively carry out the functions, powers and duties of the Bureau. The Chief of the PNP
shall be appointed by the President from among the senior officers down to the rank of the chief
superintendent, subject to confirmation by the Commission on Appointments: Provided, That the Chief
of the PNP shall serve a term of office not to exceed four (4) years: Provided, further, That in times of
war or other national emergency declared by Congress, the President may extend such term of office.
[1] (underlining supplied).
Sec.31. Appointment of PNP Officers and Members. - The appointment of the officers and members of
the PNP shall be effected in the following manner:
(a) Police Officer I to Senior Police Officer IV - Appointed by the PNP regional director for regional
personnel or by the Chief of the PNP for the national headquarters personnel and attested by the Civil
Service Commission;
(b) Inspector to Superintendent - Appointed by the Chief of the PNP, as recommended by their
immediate superiors, and attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General - Appointed by the President upon
recommendation of the Chief of the PNP, with the proper endorsement by the Chairman of the Civil
Service Commission and subject to confirmation by the Commission on Appointments; and
(d) Director General - Appointed by the President from among the senior officers down to the rank of
chief superintendent in the service, subject to confirmation by the Commission on Appointments;
Provided, That the Chief of the PNP shall serve a tour of duty not to exceed four (4) years; Provided,
further, That, in times of war or other national emergency declared by Congres, the President may
extend such tour of duty. (underlining supplied).
In accordance therewith, on March 10, 1992, the President of the Philippines, through then Executive
Secretary Franklin M. Drilon, promoted the fifteen (15) respondent police officers herein, by
appointing them to positions in the Philippine National Police with the rank of Chief Superintendent to
Director[2], namely:
Chief Supt. PEDRO G. SISTOZA

Director

Chief Supt. REGINO ARO III

Director

Chief Supt. NICASIO MA. CUSTODIO

Director

Chief Supt. GUILLERMO DOMONDON

Director

Chief Supt. RAYMUNDO L. LOGAN

Director

Senior Supt. WILFREDO REOTUTAR

Chief Superintendent

Senior Supt. FELINO C. PACHECO, JR.

Chief Superintendent

Senior Supt. RUBEN J. CRUZ

Chief Superintendent

Senior Supt. GERONIMO B. VALDERRAMA

Chief Superintendent

Senior Supt. MERARDO G. ABAYA

Chief Superintendent

Senior Supt. EVERLINO NARTATEZ

Chief Superintendent

Senior Supt. ENRIQUE T. BULAN

Chief Superintendent

Senior Supt. PEDRO J. NAVARRO

Chief Superintendent

Senior Supt. DOMINADOR MANGUBAT -

Chief Superintendent

Senior Supt. RODOLFO M. GARCIA

Chief Superintendent

The appointments of respondent police officers were in a permanent capacity. Their letters of
appointment stated in part :
By virtue hereof, they may qualify and enter upon the performance of the duties of the office,
furnishing this office and the Civil Service Commission with copies of their oath of office.[3]
Without their names submitted to the Commission on Appointments for confirmation, the said police
officers took their oath of office and assumed their respective positions. Thereafter, the Department of
Budget and Management, under the then Secretary Salvador M. Enriquez III, authorized disbursements
for their salaries and other emoluments.
On October 21, 1992, the petitioner brought before this Court this present original petition for
prohibition, as a taxpayer suit, to assail the legality of subject appointments and disbursements made
therefor.
Petitioner contends that:
I. Respondent officers, in assuming their offices and discharging the functions attached thereto,
despite their invalid appointments, in view of the failure to secure the required confirmation of the
Commission on Appointments as required by the Constitution and the law, are acting without or in
excess of their jurisdiction or with grave abuse of discretion, considering that :
A. Republic Act 6975 is a valid law that duly requires confirmation of the appointments of officers
from the rank of senior superintendent and higher by the Commission on Appointments;
B. The Philippine National Police is akin to the Armed Forces where the Constitution specifically
requires confirmation by the Commission on Appointments.

II. Respondent Secretary in allowing and/or effecting disbursements in favor of respondent officers
despite the unconstitutionality and illegality of their appointments is acting without or in excess of his
jurisdiction or with grave abuse of discretion.
The petition must fail. It is not impressed with merit.
Petitioner theorizes that Republic Act 6975 enjoys the presumption of constitutionality and that every
statute passed by Congress is presumed to have been carefully studied and considered before its
enactment. He maintains that the respect accorded to each department of the government requires that
the court should avoid, as much as possible, deciding constitutional questions.
The Court agrees with petitioner. However, it is equally demanded from the courts, as guardians of the
Constitution, to see to it that every law passed by Congress is not repugnant to the organic law. Courts
have the inherent authority to determine whether a statute enacted by the legislature transcends the
limit delineated by the fundamental law.[4] When it does, the courts will not hesitate to strike down
such unconstitutional law.
The power to make appointments is vested in the Chief Executive by Section 16, Article VII of the
Constitution, which provides:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
The aforecited provision of the Constitution has been the subject of several cases on the issue of the
restrictive function of the Commission on Appointments with respect to the appointing power of the
President. This court touched upon the historical antecedent of the said provision in the case of
Sarmiento III vs. Mison[5] in which it was ratiocinated upon that Section 16 of Article VII of the 1987
Constitution requiring confirmation by the Commission on Appointments of certain appointments
issued by the President contemplates a system of checks and balances between the executive and
legislative branches of government. Experience showed that when almost all presidential appointments
required the consent of the Commission on Appointments, as was the case under the 1935 Constitution,
the commission became a venue of horse-trading and similar malpractices.[6] On the other hand,
placing absolute power to make appointments in the President with hardly any check by the legislature,
as what happened under 1973 Constitution, leads to abuse of such power. Thus was perceived the need
to establish a middle ground between the 1935 and 1973 Constitutions. The framers of the 1987
Constitution deemed it imperative to subject certain high positions in the government to the power of
confirmation of the Commission on Appointments and to allow other positions within the exclusive
appointing power of the President.

Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III vs. Mison[7],
and in the subsequent cases of Bautista vs. Salonga[8], Quintos-Deles vs. Constitutional
Commission[9], and Calderon vs. Carale[10]; under Section 16, Article VII, of the Constitution, there
are four groups of officers of the government to be appointed by the President:
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval captain, and other officers whose appointments
are vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not otherwise provided for by
law;
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law vest in the President
alone.
It is well-settled that only presidential appointments belonging to the first group require the
confirmation by the Commission on Appointments. The appointments of respondent officers who are
not within the first category, need not be confirmed by the Commission on Appointments. As held in
the case of Tarrosa vs. Singson[11], Congress cannot by law expand the power of confirmation of the
Commission on Appointments and require confirmation of appointments of other government officials
not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the
Commission on Appointments to confirm the appointments of public officials whose appointments are
not required by the Constitution to be confirmed. But the unconstitutionality of the aforesaid sections
notwithstanding, the rest of Republic Act 6975 stands. It is well-settled that when provisions of law
declared void are severable from the main statute and the removal of the unconstitutional provisions
would not affect the validity and enforceability of the other provisions, the statute remains valid
without its voided sections.[12]
It is petitioners submission that the Philippine National Police is akin to the Armed Forces of the
Philippines and therefore, the appointments of police officers whose rank is equal to that of colonel or
naval captain require confirmation by the Commission on Appointments.
This contention is equally untenable. The Philippine National Police is separate and distinct from the
Armed Forces of the Philippines. The Constitution, no less, sets forth the distinction. Under Section 4
of Article XVI of the 1987 Constitution,
The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo
military training and service, as may be provided by law. It shall keep a regular force necessary for the
security of the State.
On the other hand, Section 6 of the same Article of the Constitution ordains that:
The State shall establish and maintain one police force, which shall be national in scope and civilian in
character to be administered and controlled by a national police commission. The authority of local

executives over the police units in their jurisdiction shall be provided by law.
To so distinguish the police force from the armed forces, Congress enacted Republic Act 6975 which
states in part:
Section 2. Declaration of policy - It is hereby declared to be the policy of the State to promote peace
and order, ensure public safety and further strengthen local government capability aimed towards the
effective delivery of the basic services to the citizenry through the establishment of a highly efficient
and competent police force that is national in scope and civilian in character. xxx
The policy force shall be organized, trained and equipped primarily for the performance of police
functions. Its national scope and civilian character shall be paramount. No element of the police force
shall be military nor shall any position thereof be occupied by active members of the Armed Forces of
the Philippines.
Thereunder, the police force is different from and independent of the armed forces and the ranks in the
military are not similar to those in the Philippine National Police. Thus, directors and chief
superintendents of the PNP, such as the herein respondent police officers, do not fall under the first
category of presidential appointees requiring the confirmation by the Commission on Appointments.
In view of the foregoing disquisition and conclusion, the respondent former Secretary Salvador M.
Enriquez III of the Department of Budget and Management, did not act with grave abuse of discretion
in authorizing and effecting disbursements for the salaries and other emoluments of the respondent
police officers whose appointments are valid.
WHEREFORE, for lack of merit, the petition under consideration is hereby DISMISSED. No
pronouncement as to costs.
SO ORDERED.

Manalo vs Sistoza
5 11 2010

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312 scra 239

Appointments

Petitioner, Jesulito Sistoza question the constitutionality and legality of the appointments issued by
former Pres. Corazon Aquino to the respondent senior officers of the PNP who were promoted to the
rank of Chief Superintendent and Director without their appointments submitted to the Commission on
Appointments for confirmation. The said police officers tool their Oath of Offices and assumed their
respective positions. Thereafter, the Department of Budget and Management, under the then Secretary
Salvador Enriquez III, authorized disbursements for their salaries and other emoluments. The petitioner
brought before this petition for prohibition, as a tax payer suit to the SC to assail the legality of subject
appointment and disbursement thereof.

ISSUE: Whether or not the appointment of the senior officers of the PNP is valid even without the
confirmation of the Commission on Appointments.

HELD: The SC held that the appointments are valid. The court has the inherent authority to determine
whether a statute enacted by the legislature transcends the limit alienated by the fundamental law.
When it does the courts will not hesitate to strike down such unconstitutionality.

THIRD DIVISION
[G.R. No. 129616. April 17, 2002]
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO,
petitioners, vs. JULIETA MONSERATE, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:

This petition for review on certiorari[1] seeks to set aside the Decision dated June 20, 1997 of the Court
of Appeals in CA-G.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.
2.
3.
4.
5.
6.

MONSERATE, JULIETA
ANINO, RAMON
TEODOSIO, APRIL
MORTOLA, DARIO
ESPINOSA, AMALIK
PERFECTO, BASCOS

PMO ILOILO
RES. MANAGEMENT DIVISION
DIVISION MANAGER
CS PROF / RA 1080
ELIGIBILITY

xxx

TOTAL

CS Prof.
1 grade
PD 907 (CPA)
CS Prof.
Bar
RA 1080

xxx
xxx
xxx
xxx

79.5
70
67
67

st

xxx
xxx

63.5
59.5

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed[5] 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 respondents appointment. The PPA Appeals Board, in a Resolution[6] dated
August 11, 1988, sustained the protest and rendered ineffective respondents 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 Managers 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.
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. 492-88[12] 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 petitioners 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
Aninos 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. 95-2043[15] dated March 21, 1995, dismissed respondents
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.
Monserates 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 Decision[16] 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 Boards 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 MONSERATES 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 Aninos timely protest against respondents
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 respondents 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 Aninos protest against respondents 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 respondents 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 respondents 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 oppurtunity 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
respondents 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. Respondents 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 Aninos appointment to the

contested position. Also, petitioner Anino retired from the service on November 30, 1997.
In this respect, while petitioner Aninos 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.
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.
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO
vs.
JULIETA MONSERATE
FACTS: The PPA was reorganized in 1988. Monserate applied for the position of Manager II of the Resource
Management Division. She was confirmed by the CSC.Ramon Anino filed an appeal with the PPA Appeals Board,
protesting the appointment. TheBoard sustained the protest and appointed Anino in place of Monserate.Monserate filed

with the CSC a protest against Anino's appointment which was dismissed bythe CSC.ISSUE: Was Monserate validly
replaced by AninoHELD: The appointing authority has a wide latitude of discretion in the selection andappointment of
qualified persons to vacant positions in the civil service.
However, the momentthe discretionary power of appointment is exercised and the appointee assumed theduties and
functions of the position, such appointment cannot anymore be revoked bythe appointing authority and appoint another in
his stead, except for cause
When the CA reinstated Monserate to her post, it merely restored her appointment to the saidposition to which her right to
security of tenure had already attached. Her position as Manager II
never became vacant since her demotion was void
. In this jurisdiction, "
an appointmentto a non-vacant position in the civil service is null and void
ab initio
.
"

EN BANC

G.R. No. 97794 May 13, 1994

GAGA G. MAUNA, petitioner,
vs.
CIVIL SERVICE COMMISSION, and CRISTETO J. LIMBACO, respondents.
Gaga G. Mauna for and in her own behalf.
The Solicitor General for public respondent.

KAPUNAN, J.:
This special civil action for certiorari impugns the decision promulgated on February 14, 1990
of the Merit Systems Protection Board (MSPB) finding private respondent Cristeto Limbaco's
appeal meritorious thereby revoking the petitioner's appointment as Chief Election Officer of
the Precincts and Barangay Affairs Department of the Commission on Elections (COMELEC)
and directing the Chairman of the COMELEC to appoint private respondent in petitioner's
stead, the decision of the MSPB dated May 24, 1990 denying the petitioner's Motion for
Reconsideration, as well as the Resolution No. 90-1001 promulgated on November 9, 1990 of
respondent Civil Service Commission (CSC) dismissing petitioner's appeal for having been
filed out of time and Resolution No. 91-215 dated February 11, 1991 denying the petitioner's
Motion for Reconsideration.
The antecedent facts are as follows:

On November 16, 1987, the COMELEC Chairman Ramon H. Felipe, Jr. appointed petitioner
Gaga G. Mauna as Chief Election Officer of the Precincts and Voting Centers Division of the
Election and Barangay Affairs Department (EBAD) of the COMELEC. 1 Said appointment was
approved by Celerina G. Gotladera, authorized representative of CSC. 2
On December 28, 1987, private respondent Cristeto J. Limbaco, the incumbent Assistant
Chief Election Officer filed a protest against the petitioner's appointment before the
COMELEC on the grounds that (1) he is more qualified than petitioner; (2) he is next-in-rank
as Assistant Chief Election Officer; and (3) he is more senior than petitioner, having been
employed by the COMELEC since 1979.
The COMELEC en banc dismissed the private respondent's protest, reasoning that:
Considering the choice as to who would be appointed to the contested position, to borrow the
words of the Supreme Court, is a political question involving consideration of wisdom which only
the appointing authority can decide; in appointing protestee to the contested position, the
Chairman exercised this discretion, and in the absence of showing that there was grave abuse
of discretion, his judgment on the matter should not be interfered with, on motion duly seconded,
the Commission resolved to dismiss the protest filed by Atty. Cristeto v. Limbaco against the
appointment of Atty. Gaga G. Mauna as Chief Officer, Precincts and voting Centers Division,
EBAD, forlack of merit. 3

Aggrieved by the said resolution, private respondent filed an appeal on March 15, 1988
before the Merit System Protection Board (MSPB) of respondent Civil Service Commission
reiterating the grounds earlier raised before the COMELEC. 4
Commenting thereon, the Commission on Elections (COMELEC) through Nancy H.
Madarang, Manager of the Personnel Department, alleged that:
It is to be admitted that the position of protestant is the next lower position relative to the
contested office. To that extent protestant may claim to be next-in-rank. But in actuality the
appointing authority widened his choice to admit another one who is equally qualified within the
department, and this is the protestee.
In doing so, judgment was exercised on the principle that there is no mandatory nor peremptory
requirement that persons next-in-rank are entitled to preference in appointment. What the law
provides is that they would be among the first to be considered, if qualified, and if the vacancy is
not filled by promotion, the same shall be filled by transfer or other modes of appointment.
(Taduran vs. Civil Service Commission, 131 SCRA 66).
Appointment is an essentially discretionary power and must be performed by
the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by the law. If
he does, then the appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is a political
question involving consideration of wisdom which only the appointing authority
can decide. (Luego vs. Civil Service Commission, 143 SCRA 327)
Let it be noted that both protestant-appellant and protestee-appellee possess the qualifications
required of the position. This being so, the choice as to who would be appointed to the
contested position became a political question involving consideration of wisdom which only the
appointing authority (could) decide.

The Chairman exercised this discretion, and in the absence of showing that there was grave
abuse of discretion, his judgment on the matter should not be interfered with.
Further, in point of seniority, it is submitted that protestee-appellee Mauna has an added
advantage. He has been in the department (Election and Barangay Affairs Department (EBAD)
where the contested position organizationally belongs, ahead of protestant-appellant. Protesteeappellee joined the Election and Barangay Affairs Department in July 1985 whereas protestant
first worked in said department only in October 1986, although protestant Limbaco entered into
the service of the Comelec in 1979. But, as a matter of policy seniority is not a decisive factor in
the process of personnel recruitment or appointment. What is important is that the appointee
possesses the qualifications required for the position. The fact that protestant-appellant is also
qualified, or even granting but without admitting, that he is better qualified than protesteeappellee, may not be used to revoke protestee-appellee's appointment. To do so would be to
encroach on the discretion vested solely in the appointing authority.
Protestant-appellant contends that the challenged appointment violated the constitutional
requirement that appointments in the civil service shall be made only according to merit and
fitness. Let it be noted that from the comparative qualifications of protestant-appellant and
protestee-appellee (Appeal, p. 2), their qualifications are at par. Hence, the criteria of merit and
fitness were considered. 5

On February 14, 1990, the MSPB rendered its decision finding the appeal of private
respondent meritorious, the dispositive portion of which reads:
WHEREFORE, premises considered, the Board finds the appeal meritorious. Accordingly, the
appointment of appellee Atty. Gaga Mauna to the contested position is hereby revoked and the
Chairman, Commission on Elections is hereby directed to appoint appellant Atty. Cristeto
Limbaco in his stead. 6

Petitioner filed a motion for reconsideration of the said decision, but the same was denied by
the MSPB in its decision dated May 24, 1990. 7
Thereafter, petitioner appealed to public respondent CSC. However, in Resolution No. 901001 dated November 9, 1990, the said respondent dismissed the appeal for being filed out
of time. 8 Petitioner moved for reconsideration but this was denied by the CSC in Resolution
No. 91-215 dated February 17, 1991. 9
Aggrieved by the foregoing resolution, petitioner filed the instant petition for certiorari with
prayer for preliminary injunction or restraining order.
On July 8, 1991, the Solicitor General filed its Comment recommending that the petition be
given due course and praying that public respondent CSC be granted a new period within
which to submit its Comment. 10 On October 10, 1991, public respondent CSC filed its
Comment to the petition, 11 while private respondent Limbaco did likewise on May 9, 1991. 12
In our resolution of January 21, 1992, 13 we resolved to give due course to the petition and
required the parties to file their respective memoranda, to which they all complied. 14
The central issue raised for resolution in this petition is whether respondent Civil Service
Commission committed grave abuse of discretion in revoking the appointment of petitioner
and ordering appointment of private respondent in his place.

Petitioner takes the position that public respondent has no authority to revoke his appointment
on the ground that another person is more qualified and to direct the appointment of a
substitute of its choice. In support of said contention, petitioner cites the case of Orbos vs.
Civil Service Commission, 15 where we ruled that the authority of the CSC is limited to
approving or disapproving an appointment, its duty being merely to attest appointments. The
CSC has no authority to revoke an appointment on the ground that another person is more
qualified for a particular position. It will be in excess of its power if it substitutes its will for that
of the appointing authority. The CSC does not have the authority to direct the appointment of
a substitute of its choice.
The principles defining the power of the appointing authority vis-a-vis that of the Civil Service
Commission are well-settled. 16 The power of appointment is essentially discretionary and the
CSC cannot substitute its judgment for that of the appointing power. Neither does it have the
power to overrule such discretion even if it finds that there are other persons more qualified to
the contested position. 17 The CSC may only approve or disapprove the appointment after
determining whether or not the appointee possesses the appropriate civil service eligibility or
the required qualifications. It cannot order or direct the appointment of a successful
protestant. Thereafter its participation in the appointment process ceases. Substituting its
judgment for that of the appointing authority constitutes encroachment on the latter's
discretion. In fact, even this Court cannot control the appointing authority's discretion as long
as it is exercised properly and judiciously. Thus, in the leading case of Luego vs. Civil Service
Commission, 18 the Court ruled:
Appointment is an essentially discretionary power and must be performed by the officer in which
it is vested according to his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the appointment cannot be faulted
on the ground that there are others better qualified who should have been preferred. This is a
political question involving consideration of wisdom which only the appointing authority can
decide.
xxx xxx xxx
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of
the Civil Service Decree because it says the Commission has the power to "approve" and
"disapprove" appointments. Thus, it is provided therein that the Commission shall have inter alia
the power to:
9(h) Approve all appointments, whether original or promotional, to positions in
the civil service, except those presidential appointees, members of the Armed
Forces of the Philippines, police forces, firemen, and jailguards, and disapprove
those where the appointees do not possess appropriate eligibility or required
qualifications. (Emphasis supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear
that all the Commission is actually allowed to do is check whether or not the appointee
possesses the appropriate civil service eligibility or the required qualifications. If he does, his
appointment is approved; it not, it is disapproved. No other criterion is permitted by law to be
employed by the Commission when it acts on or as the Decree says, "approves" or
"disapproves" an appointment made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the
private respondent were qualified for the position in controversy. That recognition alone

rendered it functus officio in the case and prevented it from acting further thereon except to
affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the
said appointment simply because it believed that the private respondent was better qualified for
that would have constituted an encroachment on the discretion vested solely in the city mayor.

The same doctrine was reiterated in the case of Central Bank vs. Civil Service Commission, 19
where it was stated:
. . . It is well-settled that when the appointee is qualified, as in this case, and all the other legal
requirements are satisfied, the Commission has no alternative but to attest to the appointment in
accordance with the Civil Service Laws. The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position. It also
has no authority to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An appointment is
essentially within the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by law.

Respondent CSC's further insistence in disregarding the choice of the appointment authority,
drew a stern rebuke from the Court in Lapinid vs. Civil Service Commission, et. al., 20 thus:
The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the
Civil Service Commission not to understand them. The bench does; the bar does; and we see
no reason why the Civil Service Commission does not. If it will not, then that is an entirely
different matter and shall be treated accordingly.
We note with stern disapproval that the Civil Service Commission has once again directed the
appointment of its own choice in the case at bar. We must therefore make the following
injunctions which the Commission must note well and follow strictly.
Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from
disregarding the doctrine announced in Luego v. Civil Service Commission and the subsequent
decisions reiterating such ruling. Up to this point, the Court has liniently regarded the attitude of
the public respondent on this matter as imputable to a lack of comprehension and not to
intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth,
departure from the mandate of Luego by the Civil Service Commission after the date of the
promulgation of this decision shall be considered contempt of this Court and shall be dealt with
severely, in view especially of the status of the contemner.
While we appreciate the fact that the Commission is a constitutional body, we must stress, as a
necessary reminder, that every department and office in the Republic must know its place in the
scheme of the Constitution. The Civil Service Commission should recognize that its acts are
subject to reversal by this Court, which expects full compliance with its decisions even if the
Commission may not agree with them.
The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.

One last time in Felipa Guieb vs. Civil Service Commission, et. al. 21 , respondent CSC was
reminded in no uncertain terms of the limits of its power to approve or disapprove
appointments in the Civil Service. This Court said:
. . . As a creation of the Constitution, the respondent Commission should be the last to trivialize
the judiciary, one of the three most important touchstones of our democratic government.
Regardless of the views of the respondent Commission, it is this court that has been endowed
with the exclusive and ultimate authority to interpret the laws of the land, including the

fundamental law itself, which often times requires throwing light to the many intersecting
shadows that blur the boundaries of power of our different branches of government. Our people
have entrusted to this Court the power to be the final arbiter of all questions of law and the rule
of law demands that as disputes ought to reach an end in the interest of societal peace,
submission should follow this court's final fiat. To undermine the authority of this Court as the
final arbiter of legal disputes is to foster chaos and confusion in our administration of justice.

Furthermore, as a civil service employee with a permanent appointment, petitioner cannot be

removed except for cause provided by law. Well-entrenched is the rule on security of tenure
that such 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 [Article IXB, Section 2, paragraph (3)] 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. 22
Finally, when the public respondent was asked to review the decision of the MSPB dated
February 14, 1990 and May 24, 1990, it affirmed the same and dismissed the petitioner's
appeal for being filed out of time.
Assuming for the sake of argument that the petitioner's appeal was filed out of time, it is within
the power of this Court to temper rigid rules in favor of substantial justice. While it is desirable
that the Rules of Court be faithfully and even meticulously observed, courts should not be so
strict about procedural lapses that do not really impair the proper administration of justice. If
the rules are intended to ensure the orderly conduct of litigation, it is because of the higher
objective they seek which is the protection of substantive rights of the parties. 23 As held by
the Court in a number of cases:
. . . Because there is no vested right in technicalities, in meritorious cases, a liberal, not literal,
interpretation of the rules becomes imperative and technicalities should not be resorted to in
derogation of the intent and purpose of the rules which is the proper and just determination of
litigation. Litigations, should as much as possible, be decided on their merits and not on
technicality. Dismissal of appeals purely on technical grounds is frowned upon, and the rules of
procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help
secure, not override, substantial justice, and thereby defeat their very aims. As has been the
constant rulings of this Court, every party-litigant should be afforded the amplest opportunity for
the proper and just disposition of his cause, free from the constraints of technicalities. . . 24

WHEREFORE, the questioned decisions of the Merit Systems Protection Board dated
February 14, 1990 and May 24, 1990 and the resolutions of respondent Civil Service
Commission dated November 9, 1990 and February 11, 1991 are hereby set aside, and the
petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent
appointment thereto dated November 16, 1987. No costs.
SO ORDERED.
EN BANC

G.R. No. 101646 February 13, 1992

DR. MARIQUITA J. MANTALA, petitioner,

vs.
HON. IGNACIO L. SALVADOR, Judge, Regional Trial Court of Quezon City, and DR.
JULIA P. REGINO, respondents.
Araceli Baviera for petitioner.
Benjamin M. Dacanay for private respondents.

NARVASA, C.J.:
At issue in this certiorari proceeding is (a) the validity of the assumption of jurisdiction by the
Regional Trial Court over the matter of who is entitled, under the law and rules governing the
civil service, to a contested position in the Department of Health, as well as (b) the
correctness of said Court's decision on the question.
It appears that sometime in July, 1988, Dr. Mariquita J. Mantala, a private medical
practitioner, was given by the Secretary of Health a temporary appointment to the then vacant
position of Division Chief, Medical Division III, Monitoring and Evaluation Division of the TB
Control Service, Office of Public Health, of the Department of Health.
That temporary appointment was shortly made subject to a formal protest filed by Dr. Julia P.
Regino with the Committee on Evaluation and Protest of the Department of Health. Dr.
Regino claimed that it was she to whom the appointment should have been extended since
the post of Medical Officer III then held by her was next-in-rank to the office in question, and
moreover she had been in the service for thirty-five years. However, the Committee on
Evaluation and Protest ruled adversely to her and upheld the Health Secretary's appointment
of Dr. Mantala as Division Chief.
Dr. Regino appealed to the Merit Systems Board of the Civil Service Commission. On
December 14, 1989, the Board rendered a verdict adversely to Dr. Mantala and in Dr.
Regino's favor. This decision the Department of Health appealed to the Civil Service
Commission.
Some three weeks later, or more precisely on January 8, 1990, Secretary Bengzon made Dr.
Mantala's appointment as Division Chief permanent. He also filed, under date of January 23,
1989, a motion for reconsideration of the aforementioned decision of the Merit Systems Board
which was, however, denied, on February 12, 1990.
Secretary Bengzon thereupon took the case up to the Civil Service Commission. In its
Resolution dated June 14, 1990 (No. 90-553), the Commission dismissed the appeal and
affirmed the decision of the Merit Systems Board in Dr. Regino's favor.
On a motion for reconsideration, however, the Commission, by its Resolution No. 90-1012
dated November 14, 1990, set aside the resolution of dismissal and upheld Dr. Mantala's
appointment. It declared "that insofar as overall rating of the qualification, attitude and

performance (was concerned), Dr. Mantala outscored Dr. Regino," and that the appointing
authority is not limited to promotion in filling up vacancies but may opt to fill them by the
appointment of persons with civil service eligibility appropriate to the position. Dr. Regino filed
a motion for reconsideration stressing her status as "a qualified next-in-rank" officer. This was
denied, the Commission declaring that it would "not delve into who is more qualified or who
possesses more impressive qualifications" in deference to the discretion lodged by law in the
appointing authority.
No appeal was taken from said Resolution No. 90-1012. It consequently became final and
executory.
In the meantime, or more precisely on March 12, 1990, Dr. Regino instituted an action of quo
warranto and mandamus in the Regional Trial Court at Quezon City against Dr. Mantala,
Secretary Bengzon and other officials of the Department of Health, claiming that having an
established right to the position of Division Chief in question, she should be installed therein
(Civil Case No. Q-90-5486). This resulted in a judgment dated August 30, 1991 which
1) annulled and set aside Dr. Mantala's appointment as Chief of Medical Division III in the
Tuberculosis Control Service, Office for Public Health Services, Department of Health;
2) directed the Secretary of Health to withdraw Dr. Mantala's appointment and "issue in its place
one for . . . Dr. Julia P. Regino and, without delay, to forward the latter's promotional
appointment to the Civil Service Commission for approval pursuant to law;" and
3) declared Dr. Mantala "not entitled to said office and ousting her therefrom . . .

Hence this petition for review on certiorari in which it is prayed that the Regional Trial Court's
decision be reversed.
The petition has merit and will be granted. The decision of August 30, 1991 is fatally flawed. It
was rendered without jurisdiction, and it runs afoul of established doctrine.
Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil
service including "appointment through certification, promotion, transfer, reinstatement,
reemployment, detail, reassignment, demotion and separation," and, of course, employment
status and qualification standards are within the exclusive jurisdiction of the Civil Service
Commission. The Constitution declares the Commission to be "the central personnel agency
of the Government," 1 having power and authority to administer the civil service; 2 to
promulgate its own rules concerning pleadings and practice before it or before any of its
offices; 3 and to render decision in "any case or matter brought before it within sixty days from
the date of its submission for decision or resolution," which decision, or order or ruling "may
be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof." 4
On October 9, 1989, pursuant to the constitutional authority on it conferred, the Civil Service
Commission, in its Resolution No. 89-779, approved, adopted and promulgated its "Rules on
Administrative Disciplinary Cases and Rules on Protest Cases." Part B of said Rules, entitled
"B. Rules on Protest Cases," inter alia sets out with particularity the Commission's jurisdiction
broadly set forth in the Constitution, to wit:

Sec. 3. Final Appellate Jurisdiction. The Civil Service Commission shall exercise final and
exclusive appellate jurisdiction over all cases decided by the Merit Systems Protection Board
and the Civil Service Regional Offices involving contested appointments or promotions.

and prescribes the procedure (Rule IV) governing protest cases. Said protest cases are
described as follows: 5
(a) An appointment made in favor of another next-in-rank employee who is not qualified;
(b) An appointment made in favor of one who is not next-in-rank;
(c) An appointment made in favor of one who is appointed by transfer and not next-in-rank, or by
reinstatement or by original appointment, if the employee making the protest is not satisfied with
the written special reason or reasons given by the appointing authority for such appointment.

These protest cases are decided in the first instance by the head of Department or agency,
subject to appeal to the Merit Systems Protection Board, whose decisions are in turn subject
to appeal to the Civil Service Commission. The latter's decision may, in turn, be brought to the
Supreme Court.
It was thus error, because beyond its competence, for the respondent Trial Court to take
cognizance of the quo warranto and mandamus action instituted by Dr. Regino which was in
essence a protest against the appointment of Dr. Mantala. Moreover, this protest, as already
stated, had earlier been submitted by Regino herself to the civil service adjudicatory system
laid down for the purpose in accordance with the Constitution, the law, and the Commission's
rules. Dr. Regino appealed to the Merit Systems Protection Board from the decision of the
Secretary of Health rejecting her protest and upholding the appointment of Dr. Mantala. She
ventilated her position in the appellate proceedings instituted by Dr. Mantala in the Civil
Service Commission, in connection with the latter's attempt to overthrow the adverse
judgment of the Board. When the Commission, in its Resolution of November 14, 1990,
eventually sustained Dr. Mantala's appeal, Dr. Regino filed a motion for reconsideration. It
was only after the Resolution of November 14, 1990, in Dr. Mantala's favor, became final and
executory by reason of Dr. Regino's failure to take an appeal therefrom and evidently to
remedy this fatal procedural lapse that the latter thought of filing her quo warranto and
mandamus action in the Regional Trial Court. Such a stratagem cannot be allowed to
succeed.
Even on the merits, Dr. Regino's cause fails. For one thing, the Commission's conclusion
"that insofar as overall rating of the qualification, attitude and performance (was concerned),
Dr. Mantala outscored Dr. Regino" is basically a factual one and may not be reviewed on
certiorari; and its legal opinion that the appointing authority is not limited to promotion in
filling up vacancies but may opt to fill them by the appointment of persons with civil service
eligibility appropriate to the position is entirely in accord with law. For another, the now
firmly established doctrine is that the discretion exercised by the appointing power in
extending an appointment to a given position to one of two or more employees possessing
the requisite minimum qualifications for the position, will not generally be interfered with and
must be sustained, and the Civil Service Commission has no authority to revoke the said
appointment simply because it believes that another employee is better qualified, for that
would constitute an encroachment on the discretion vested sole in the appointing authority. 6

WHEREFORE, the decision of the Regional Trial Court of August 30, 1991, is hereby
ANNULLED AND SET ASIDE, and Resolution No. 90-1012 dated November 14, 1990 of the
Civil Service Commission upholding Dr. Mantala's appointment to the contested position,
which has long since become final and executory, is hereby declared to be determinative and
conclusive of the controversy at bar and, if not yet carried out, must now be forthwith
executed. Costs against private respondent.
SO ORDERED.

EN BANC
[G.R. No. 123708. June 19, 1997]
CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, petitioners, vs. RAFAEL M. SALAS, respondent.
DECISION
REGALADO, J.:
The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals, dated
September 14, 1995, in CA-G.R. SP No. 38319 which set aside Resolution No. 92-1283 of the Civil
Service Commission (CSC) and ordered the reinstatement of herein private respondent Rafael M. Salas
with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming
Corporation (PAGCOR), but without prejudice to the filing of administrative charges against him if
warranted.[1]
The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR
Chairman as Internal Security Staff (ISS) member and assigned to the casino at the Manila Pavilion
Hotel. However, his employment was terminated by the Board of Directors of PAGCOR on December
3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence
Division of PAGCOR. The summary of intelligence information claimed that respondent was
allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers
of PAGCOR who claimed that they were used as gunners on different occasions by respondent. The
two polygraph tests taken by the latter also yielded corroborative and unfavorable results.
On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of
Directors of PAGCOR, requesting reinvestigation of the case since he was not given an opportunity to
be heard, but the same was denied. On February 17, 1992, he appealed to the Merit Systems Protection
Board (MSPB) which denied the appeal on the ground that, as a confidential employee, respondent was
not dismissed from the service but his term of office merely expired. On appeal, the CSC issued
Resolution No. 92-1283 which affirmed the decision of the MSPB.[2]

Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the
questioned CSC resolution. However, in a resolution dated August 15, 1995,[3] the case was referred to
the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 which took effect on June
1, 1995.
On September 14, 1995, the court of Appeals rendered its questioned decision with the finding that
herein respondent Salas is not a confidential employee, hence he may not be dismissed on the ground
of loss of confidence. In so ruling, the appellate court applied the "proximity rule" enunciated in the
case of Grio, et al. vs. Civil Service Commission, et al.[4]. It likewise held that Section 16 of
Presidential Decree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the
1987 Constitution.
Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of
whether or not respondent Salas is a confidential employee.
Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a
confidential employee for several reasons, viz.:
(1)
Presidential Decree No. 1869 which created the Philippine Amusement and Gaming
Corporation expressly provides under Section 16 thereof that all employees of the casinos and related
services shall be classified as confidential appointees;
(2)
In the case of the Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al.,[5]
The Supreme Court has classified PAGCOR employees as confidential appointees;
(3)
CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related
services as confidential appointees by operation of law; and
(4)
Based on his functions as a member of the ISS, private respondent occupies a confidential
position.
Whence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his
term of office had expired. They additionally contend that the Court of Appeals erred in applying the
"proximity rule" because even if Salas occupied one of the lowest rungs in the organizational ladder of
PAGCOR, he performed the functions of one of the most sensitive positions in the corporation.
On the other hand, respondent Salas argues that it is the actual nature of an employee's functions, and
not his designation or title, which determines whether or not a position is primarily confidential, and
that while Presidential Decree No. 1869 may have declared all PAGCOR employees to be confidential
appointees, such executive pronouncement may be considered as a mere initial determination of the
classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in
Tria vs. Sto. Tomas, et al.[6]
We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied.
Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of
Section 16(e) of Republic Act No. 2260 (Civil Service Act of 1959), which was then in force when
Presidential Decree No. 1869 creating the Philippine Amusement and Gaming Corporation was passed,

provided that "upon recommendation of the Commissioner, the President may declare a position as
policy-determining, primarily confidential, or highly technical in nature." It appears that Section 16 of
Presidential Decree No. 1869 was predicated thereon, with the text thereof providing as follows:
"All positions in the corporation, whether technical, administrative, professional or managerial are
exempt from the provisions of the Civil Service Law, rules and regulations, and shall be governed only
by the personnel management policies set by the Board of Directors. All employees of the casinos and
related services shall be classified as 'confidential' appointees."
On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent
Salas for lack of confidence after it supposedly found that the latter was engaged in proxy betting. In
upholding the dismissal of respondent Salas, the CSC ruled that he is considered a confidential
employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration of a
confidential employee's term of office, such that a complaint for illegal dismissal will not prosper in
this case for lack of legal basis.
In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of
Presidential Decree No. 1869 may no longer be applied in the case at bar because the same is deemed
to have been repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution.[7] This is
not completely correct. On this point, we approve the more logical interpretation advanced by the CSC
to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions
of Civil Service Law and Rules has been amended, modified or deemed repealed by the 1987
Constitution and Executive Order No. 292 (Administrative Code of 1987)."
However, the same cannot be said with respect to the last portion of Section 16 which provides that "all
employees of the casino and related services shall be classified as 'confidential appointees.'" While
such executive declaration emanated merely from the provisions of Section 2, Rule XX of the
implementing rules of the Civil Service Act of 1959, the power to declare a position as policydetermining, primarily confidential or highly technical as defined therein has subsequently been
codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the Administrative
Code of 1987.[8] This later enactment only serves to bolster the validity of the categorization made
under Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not absolute
and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances
when a position may be considered primarily confidential: Firstly, when the President, upon
recommendation of the Commissioner of Civil Service, has declared the position to be primarily
confidential; and, secondly in the absence of such declaration, when by the nature of the functions of
the office there exists "close intimacy" between the appointee and appointing power which insures
freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal
trust or confidential matters of state.[9]
At first glance, it would seem that the instant case falls under the first category by virtue of the express
mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis, however, of the
second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the noncompetitive or unclassified service shall be composed of positions expressly declared by law to be in

the non-competitive or unclassified service or those which are policy-determining, primarily

confidential, or highly technical in nature." In the case of Piero, et al. vs. Hechanova, et al.,[10] the
Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the
law, thus:
"The change from the original wording of the bill (expressly declared by law x x x to be policydetermining, etc.) to that finally approved and enacted ('or which are policy-determining, etc. in
nature') came about because of the observations of Senator Taada, that as originally worded the
proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential
or policy-determining, which should not be the case. The Senator urged that since the Constitution
speaks of positions which are 'primarily confidential, policy-determining, or highly technical in nature',
it is not within the power of Congress to declare what positions are primarily confidential or policydetermining. 'It is the nature alone of the position that determines whether it is policy-determining or
primarily confidential.' Hence, the Senator further observed, the matter should be left to the 'proper
implementation of the laws, depending upon the nature of the position to be filled', and if the position is
'highly confidential' then the President and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, 'But in positions that involved both confidential matters and
matters which are routine, x x x who is going to determine whether it is primarily confidential?' Senator
Taada replied:
'SENATOR TAADA: Well, at the first instance, it is the appointing power that determines that: the
nature of the position. In case of conflict then it is the Court that determines whether the position is
primarily confidential or not" (Italics in the original text).
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of
the position which finally determines whether a position is primarily confidential, policy-determining
or highly technical. And the court in the aforecited case explicitly decreed that executive
pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that
are not conclusive in case of conflict. It must be so, or else it would then lie within the discretion of the
Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII (now
Section 2[3], Article IX-B) of the Constitution.[11] In other words, Section 16 of Presidential Decree
No. 1869 cannot be given a literally stringent application without compromising the constitutionally
protected right of an employee to security of tenure.
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was reaffirmed in
the 1973 Constitution, as well as in the implementing rules of Presidential Decree No. 807, or the Civil
Service Decree of the Philippines.[12] It may well be observed that both the 1935 and 1973
Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil
Service, except as to those which are policy-determining, primarily confidential, or highly technical in
nature, shall be made only according to merit and fitness, to be determined as far as practicable by
competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the noncompetitive or unclassified service shall be composed of positions expressly declared by law to be in
the non-competitive or unclassified service or those which are policy-determining, primarily
confidential, or highly technical in nature." Likewise, Section 1 of the General Rules in the
implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service,
except as to those which are the policy-determining, primarily confidential, or highly technical in
nature, shall be made only according to merit and fitness to be determined as far as practicable by

competitive examination." Let it here be emphasized, as we have accordingly italicized them, that
these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to
describe the character of the positions being classified.
The question that may now be asked is whether the Piero doctrine -- to the effect that notwithstanding
any statutory classification to the contrary, it is still the nature of the position, as may be ascertained by
the court in case of conflict, which finally determines whether a position is primarily confidential,
policy-determining or highly technical -- is still controlling with the advent of the 1987 Constitution
and the Administrative Code of 1987,[13] Book V of which deals specifically with the Civil Service
Commission, considering that from these later enactments, in defining positions which are policydetermining, primarily confidential or highly technical, the phrase "in nature" was deleted.[14]
We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations
in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions, to wit:
"MR. FOZ. Which department of government has the power or authority to determine whether a
position is policy-determining or primarily confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but
the final decision is done by the court. The Supreme Court has constantly held that whether or not a
position is policy-determining, primarily confidential or highly technical, it is determined not by the
title but by the nature of the task that is entrusted to it. For instance, we might have a case where a
position is created requiring that the holder of that position should be a member of the Bar and the law
classifies this position as highly technical. However, the Supreme Court has said before that a position
which requires mere membership in the Bar is not a highly technical position. Since the term 'highly
technical' means something beyond the ordinary requirements of the profession, it is always a question
of fact.
MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system
or the competitive system should be upheld?
FR. BERNAS. I agree that that it should be the general rule; that is why we are putting this as an
exception.
MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or
highly technical has been the source of practices which amount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency
says that a position is primarily confidential when in fact it is not, we can always challenge that in
court. It is not enough that the law calls it primarily confidential to make it such; it is the nature of the
duties which makes a position primarily confidential.
MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or
highly technical as an exception is to take it away from the usual rules and provisions of the Civil
Service Law and to place it in a class by itself so that it can avail itself of certain privileges not
available to the ordinary run of government employees and officers.

FR. BERNAS. As I have already said, this classification does not do away with the requirement of
merit and fitness. All it says is that there are certain positions which should not be determined by
competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a
physicist to undergo a competitive examination before appointment? Or a confidential secretary or any
position in policy-determining administrative bodies, for that matter? There are other ways of
determining merit and fitness than competitive examination. This is not a denial of the requirement of
merit and fitness" (Italics supplied).[15]
It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the
1987 Constitution in providing for the declaration of a position as policy-determining, primarily
confidential or highly technical is to exempt these categories from competitive examination as a means
for determining merit and fitness. It must be stressed further that these positions are covered by
security of tenure, although they are considered non-competitive only in the sense that appointees
thereto do not have to undergo competitive examinations for purposes of determining merit and fitness.
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it
stated that "the declaration of a position is primarily confidential if at all, merely exempts the position
from the civil service eligibility requirement." Accordingly, the Piero doctrine continues to be
applicable up to the present and is hereby maintained. Such being the case, the submission that
PAGCOR employees have been declared confidential appointees by operation of law under the bare
authority of CSC Resolution No. 91-830 must be rejected.
We likewise find that in holding that herein private respondent is not a confidential employee,
respondent Court of Appeals correctly applied the "proximity rule" enunciated in the early but still
authoritative case of De los Santos vs. Mallare, et al.,[16] which held that:
"Every appointment implies confidence, but much more than ordinary confidence is reposed in the
occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in
the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures
freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal
trust or confidential matters of state. x x x" (Emphasis supplied).
This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts of which are substantially
similar to the case at bar, involving as it did employees occupying positions in various capacities in the
Port Patrol Division of the Bureau of Customs. The Court there held that the mere fact that the
members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient
indication that their positions are primarily confidential. After quoting the foregoing passage from De
los Santos, it trenchantly declared:
"As previously pointed out, there are no proven facts to show that there is any such close intimacy and
trust between the appointing power and the appellees as would support a finding that confidence was
the primary reason for the existence of the positions held by them or for their appointment thereto.
Certainly, it is extremely improbable that the service demands any such closed trust and intimate
relation between the appointing official and, not one or two members alone but the entire Customs
patrol (Harbor Police) force, so that every member thereof can be said to hold 'primarily confidential'
posts". (Stress supplied).

It can thus be safely determined therefrom that the occupant of a particular position could be
considered a confidential employee if the predominant reason why he was chosen by the appointing
authority was, to repeat, the latter's belief that he can share a close intimate relationship with the
occupant which ensures freedom of discussion, without fear of embarrassment or misgivings of
possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied
is remote from that of the appointing authority, the element of trust between them is no longer
predominant.[17]
Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with
the appointing authority of PAGCOR which would otherwise place him in the category of a
confidential employee, to wit:
1.

As an Internal Security Staff member, private respondent routinely

a.
performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities,
misbehavior, illegal transactions and other anomalous activities among the employees and customers,
b.
reports unusual incidents and related observations/information in accordance with established
procedures for infractions/mistakes committed on the table and in other areas;
c.
coordinates with CCTV and/or external security as necessary for the prevention, documentation
or suppression of any unwanted incidents at the gaming and non-gaming areas;
d.
acts as witness/representative of Security Department during chips inventory, refills, yields,
card shuffling and final shuffling;
e.
performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the
respective tables, or during transfer of yields to Treasury.[18]
Based on the nature of such functions of herein private respondent and as found by respondent Court of
Appeals, while it may be said that honesty and integrity are primary considerations in his appointment
as a member of the ISS, his position does not involve "such close intimacy" between him and the
appointing authority, that is, the Chairman of PAGCOR, as would ensure "freedom from misgivings of
betrayals of personal trust."[19]
2. Although appointed by the Chairman, ISS members do not directly report to the Office of the
Chairman in the performance of their official duties. An ISS members is subject to the control and
supervision of an Area Supervisor who, in turn, only implements the directives of the Branch Chief
Security Officer. The latter is himself answerable to the Chairman and the Board of Directors.
Obviously, as the lowest in the chain of command, private respondent does not enjoy that "primarily
close intimacy" which characterizes a confidential employee.
3. The position of an ISS member belongs to the bottom level of the salary scale of the
corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class 12.
Taking into consideration the nature of his functions, his organizational ranking and his compensation
level, it is obviously beyond debate that private respondent cannot be considered a confidential
employee. As set out in the job description of his position, one is struck by the ordinary, routinary and

quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the
position occupied by private respondent is underscored by the fact that the salary attached to it is a
meager P2,200.00 a month. There thus appears nothing to suggest that private respondents's position
was "highly" or much less, "primarily" confidential in nature. The fact that, sometimes, private
respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in
nature does not suffice to characterize his position as primarily confidential.[20]
In addition, the allegation of petitioners that PAGCOR employees have been declared to be
confidential appointees in the case of Philippine Amusement and Gaming Corporation vs. Court of
Appeals, et al., ante, is misleading. What was there stated is as follows:
"The record shows that the separation of the private respondent was done in accordance with PD 1869,
which provides that the employees of the PAGCOR hold confidential positions. Montoya is not
assailing the validity of that law. The act that he is questioning is what he calls the arbitrary manner of
his dismissal thereunder that he avers entitled her to damages under the Civil Code." (Italics ours).
Thus, the aforecited case was decided on the uncontested assumption that the private respondent
therein was a confidential employee, for the simple reason that the propriety of Section 16 of
Presidential Decree No. 1869 was never controverted nor raised as an issue therein. That decree was
mentioned merely in connection with its provision that PAGCOR employees hold confidential
positions. Evidently, therefore, it cannot be considered as controlling in the case at bar. Even the fact
that a statute has been accepted as valid in cases where its validity was not challenged does not
preclude the court from later passing upon its constitutionality in an appropriate cause where that
question is squarely and properly raised. Such circumstances merely reinforce the presumption of
constitutionality of the law.[21]
WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in
toto.
SO ORDERED.
EN BANC
G.R. No. L-24418

January 25, 1967

ALEJANDRO FERRER, TEODORO P. FOJAS, OCTAVIO HERNANDEZ and JESUS

GARCIA, petitioners-appellants,
vs.
HON. RUFINO HECHANOVA, in his capacity as Secretary of Finance,
HON. JOSE B. LINGAD, in his capacity as Commissioner of Customs
and THE AUDITOR OF THE BUREAU OF CUSTOMS, respondents-appellees.
Jose W. Diokno for petitioners-appellants.
Office of the Solicitor General for respondents-appellees.
BENGZON, J.P., J.:

This is an appeal in i petition for mandamus filed in the Court of First Instance of Manila by four
employees dismissed from the Bureau of Customs to compel their reinstatement with payment of back
salaries and attorney's fees.
Petitioner Alejandro Ferrer was issued on June 25, 1958 a probational appointment as Special Police
Officer in the Bureau of Customs. On June 25, 1959, he was extended an appointment as Special Agent
in the same Bureau, his designation having been changed from Special Police Officer to Special Agent
under Republic Act 2300 (Appropriation Act). This latter appointment was attested to by the Civil
Service Commissioner as provisional "pending determination as to whether the position occupied will
be placed in the classified or unclassified position."
Ferrer who was not a civil service eligible accepted said appointments and assumed office
thereunder. On June 20, 1963, the Secretary of Finance and the Commissioner of Customs dismissed
him on the stated ground of loss of confidence.
Petitioner Teodoro P. Fojas was a permanent and regular employee in the Bureau of Customs having
been extended an appointment as Special Agent. From said position he was separated or dismissed by
the Secretary of Finance and the Commissioner of Customs on June 24, 1963, also for "loss of
confidence." Fojas was a second grade civil service eligible.
Petitioner Jesus Garcia was a regular and permanent employee in the Bureau of Customs, as Special
Police Officer, having been appointed thereto, from which he was separated from the service by the
Secretary of Finance and Commissioner of Customs on June 20, 1963, for "loss of confidence." Garcia
had no civil service eligibility.
Petitioner Octavio Hernandez was a regular and permanent employee as Police Private in the Port
Patrol Division, Bureau of Customs, having been extended an appointment thereto. Not a civil service
eligible, he, too, was dismissed by the Secretary of Finance and Commissioner of Customs in
December 1962 for "loss of confidence."
Petitioners Ferrer, Fojas and Garcia, on December 12, 1963, and petitioner Hernandez, on February 21,
1964, requested the Secretary of Finance and Commissioner of Customs to reinstate them, but said
requests were denied. Also, Hernandez, thru his father, wrote the Secretary of Finance on January 9,
1964 requesting reconsideration of his dismissal. The Secretary has not replied to said letter.
On March 9, 1964 the petitioners filed the present suit in the courts a quo against the Secretary of
Finance, the Commissioner of Customs and the Auditor of the Bureau of Customs.
The Court of First Instance, on January 6, 1965, rendered judgment dismissing the petition, without
costs, on the finding that the positions from which petitioners had been dismissed belong to the
classified service, and that petitioners, except Fojas, not being civil service eligibles they must be
deemed holders of appointments temporary in nature with no fixed tenure in office, terminable at the
pleasure of the appointing power. As to Fojas, the same principle was applied, on the ground that his
second grade civil service eligibility is not appropriate for the position of Special Agent in the Port
Patrol Division of the Bureau of Customs.
And, hence, petitioners appealed therefrom to this Court.

Appellants contend that their positions do not call for civil service eligibility on their part, arguing that
there is no law passed by Congress declaring said positions as falling under the classified service. They
stress the point that said positions had been declared by executive orders1 as primarily confidential. As
ruled by this Court, however, in Piero v. Hechanova, L-22562, October 22, 1966, with the advent of
the Civil Service Act of 1959 (R.A. 2260, effective June 19, 1959), it is the nature of the functions
attached to the position that determines ultimately whether an administrative position is primarily
confidential, policy determining or highly technical. And as further held in said case, in the absence of
proven facts to show such close intimacy and trust between the appointing power and the appointees as
would support a finding that confidence was the primary reason for the existence of the positions held
by them or for their appointment thereto, said positions cannot be deemed primarily confidential in
nature. Said ruling applies to the present case, since there is here likewise no evidence showing the
nature of the civil service positions in question to be primarily confidential.
From the above it follows that notwithstanding the designation of the petitioners Hernandez and Garcia
as "permanent" appointees, they are in legal contemplation actually not permanent appointees within
the meaning of the Civil Service Law; for a permanent appointment implies civil service eligibility
(Sigue v. Rayabaya L-11717, December 27, 1958), which they admittedly do not possess.
The same is true which petitioner Fojas because his second grade civil service eligibility is, as pointed
out by the court below, not appropriate for the position he occupied, that of Special Agent in the Port
Patrol Division of the Bureau of Customs, so that he is likewise without the requisite civil service
eligibility.
Petitioner Ferrer, as stated, held only a provisional appointment at the time he was dismissed. A
provisional appointment is good only until replacement by a civil service eligible and in no case
beyond thirty (30) days from the date of receipt by the appointing officer of the certificate of eligibles
(Sec. 24[c], R.A. 2260; Rule VI, Secs. 13 and 14 of Revised Civil Service Rule; Piero v. Hechanova,
supra).
Petitioners Fojas, Hernandez and Garcia, who, as stated, are not possessed of the required civil service
eligibility, but who were issued so-called permanent appointments, should be deemed provisional
appointees in their respective positions, since it is not questioned that except for this requisite they
otherwise meet the requirements for appointment to the said regular positions in the competitive
service. Their stay therein, therefore, should also continue only up to their replacement by eligibles and
in no case beyond thirty (30) days from the receipt by the appointing officer of the certificate of
eligibles.
Since "loss of confidence" is not a valid ground for dismissal of the aforesaid provisional appointees
occupying positions in the classified service, their reinstatement must be ordered, with payment of back
salaries. This however is without prejudice to their replacement by civil service eligibles nor shall they
continue in said positions as provisional appointees for more than thirty (30) days from receipt by their
appointing officer of the appropriate register of eligibles, from which list their replacements should be
chosen.
Wherefore, the judgment appealed from is hereby set aside; petitioners are ordered reinstated with
payment of back salaries from the dates of their dismissal up to their reinstatement, or, if they have
been replaced by civil service eligibles, up to said replacement; in the absence of said replacement,
petitioners shall continue in said positions but in no case beyond thirty (30) days from receipt by the

proper appointing officer of the certificate of eligibles. No costs.

SECOND DIVISION
G.R. No. L-35592 June 11, 1986
MEDARDO AG. CADIENTE, petitioner,
vs.
LUIS T. SANTOS, City Mayor of Davao City, MAXIMINO ASISTIDO, City Treasurer of
Davao City, FELIX N. PEPITO, City Auditor of Davao City, and ATTY. VICTOR
CLAPANO, respondents.

ALAMPAY, J.:
Petition for review on certiorari of the decision of the Court of First Instance of Davao City,
Branch I, in Civil Case No. 7571, entitle Ag. Cadierte vs. Mayor Luis T. Santos, et al."
promulgated on August 23, 1972, which dismissed the petition for mandamus, quo warranto,
with preliminary injunction filed by herein petitioner.
On September 13, 1971, petitioner Cadiente was appointed by then Mayor Elias B. Lopez as
City Legal Officer of Davao City. The appointment was duly attested to and/or approved as
"permanent" by the Civil Service Commission under Section 24(b) of R.A. 2260. On January
6, 1972, the new and then incumbent City Mayor Luis T. Santos, herein respondent, sent a
letter (Annex "H" to the Petition, p. 43, Rollo) to the petitioner advising the latter that his
services as City Legal Officer of Davao City "are dispensed with effective upon receipt of said
letter" on the ground that the position of City Legal Officer was primarily confidential in nature.
This was the opinion rendered by the City Fiscal of Davao City on January 6, 1972, after
being requested to submit his legal opinion on said matter. Respondent City Mayor appointed
respondent Atty. Victor Clapano as City Legal Officer on January 6, 1972 to take effect on
said date.
Petitioner appealed to the Civil Service Commission on January 7, 1982, which rendered its
decision in its lst Indorsement dated March 2, 1972, therein holding that the termination,
removal and/or dismissal of petitioner is "without cause and without due process" and that the
position of City Legal Officer "is not included among those positions enumerated in Sec. 5 of
R.A. 2260 as belonging to the non-competitive service." Subsequently, on April 7, 1972, the
City Council of Davao City passed Resolution No. 210, series of 1972, therein considering
and recognizing herein petitioner Atty. Medardo Ag. Cadiente, as the rightful City Legal
Officer of Davao City (Rollo, pp. 54-58). Despite this resolution, the public respondents in this
case who are the City Mayor, the City Treasurer, and the City Auditor of Davao City, still
declined and refused to recognize petitioner as the one entitled to the disputed position of City
Legal Officer of Davao City.

Meanwhile, in an Indorsement (Annex "O" to the Petition, p. 59) dated February 8, 1972, the
Civil Service Commission returned the appointment of respondent Clapano to respondent City
Mayor with the information that said office (Civil Service Commission) "overlooked the fact
that the appointee was more than 57 years old at the time of his appointment and, therefore,
authority for his appointment be first secured from the Office of the President pursuant to
Section 6 of R.A. 728, as reinforced by Section 5, Civil Service Rule IV, which states that "no
person shall be appointed or reinstated in the service if he is already 57 years of age, unless
the President of the Philippines ... determines that he possesses special qualifications and his
services are needed.
Petitioner thus filed with the Court of First Instance of Davao City, Branch I, Civil Case No.
7571, for mandamus, quo warranto with preliminary injunction against the herein
respondents, praying therein that: (a) respondent City Mayor be ordered to reinstate and/or
allow him to continue performing his duties and functions as City Legal Officer of Davao City;
(b) the appointment of respondent Clapano be declared illegal and invalid; and (c)
respondents City Mayor, City Treasurer, and City Auditor be ordered to pay him all his
salaries, wages, allowances, emoluments an other benefits due him as City Legal Officer from
the time of his illegal dismissal until the termination of the suit. On August 23, 1972, the trial
court rendered its decision dismissing the aforestated case, as it ruled that:
The positions of Municipal Attorney, Provincial Attorney and City Legal Officer are by their very
nature, primarily confidential, and therefore, belong to the non-competetive service under
paragraph 1, section 5, Republic Act 2260, as amended, because the functions attached to the
offices require the highest trust and confidence of the appointing authority on the appointee....
The approval of, and attestation to the appointment of petitioner Cadiente as permanent under
Section 24(b) of R.A. 2260, as amended, by the Commissioner of Civil Service did not make the
appointment permanent and the position fall under the competetive service. If, as the Court has
found, the position is primarily confidential, petitioner Cadiente held office at the pleasure of
respondent Mayor and the position belongs to the non-competitive service.

Motion for reconsideration of said decision having been denied in an Order dated September
23, 1972, the present petition to compel reinstatement and payment of back salaries, was
filed with this Court on October 7, 1972. In the Resolution of this Court dated December 28,
1972, said petition was given due course.
In resolving the merits of the instant case, We find as an undeniable fact that the position of a
City Legal Officer is one which is "primarily confidential". This Court held in the case of
Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal
Officer is one requiring that utmost confidence on the part of the mayor be extended to said
officer. The relationship existing between a lawyer and his client, whether a private individual
or a public officer, is one that depends on the highest degree of trust that the latter entertains
for the counsel selected. As stated in the case of Pinero vs. Hechanova, L-22562, October
22, 1966, 18 SCRA 4176 (citing De los Santos vs. Mallaare 87 Phil. 289), the phrase primarily
confidential' "denotes not only confidence in the 'aptitude of the appointee for the duties of the
office but primarily close intimacy which insures freedom of intercourse, without
embarrassment on freedom from misgivings of betrayals of personal trust on confidential
matters of state. (Emphasis supplied).

The tenure of officials holding primarily confidential positions ends upon loss of confidence,
because their term of office lasts only as long as confidence in them endures; and thus their
cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA
591-596). When such confidence is lost and the officer holding such position is separated
from the service, such cessation entails no removal but an expiration of his term. In the case
of Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held
It is to be understood of course that officials and employees holding primarily confidential
positions continue only for so long as confidence in them endures. The termination of their
official relation can be justified on the ground of loss of confidence because in that case their
cessation from office involves no removal but merely the expiration of the term of office-two
different causes for the termination of official relations recognized in the Law of Public Officers.

In the case at bar, when the respondent City Mayor of Davao terminated the services of the
petitioner, he was not removed or dismissed. There being no removal or dismissal it could
not, therefore, be said that there was a violation of the constitutional provision that "no officer
or employee in the civil service shall be suspended or dismissed except for cause as provided
by law" (Article XII-B, Section 1(3), 1973 Constitution).
The matter of expiration of a term of an officer holding a primarily confidential position, as
distinguished from a removal or dismissal, was further explained by this Court, in the case of
Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise:
When an incumbent of a primarily confidential position holds office at the pleasure of the
appointing power, and the pleasure turns into a displeasure, the incumbent is not removed or
dismissed from office-his term merely expires, in much the same way as an officer, whose right
thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is
not and cannot be deemed removed or dismissed therefrom, upon expiration of said term.
The main difference between the former the primarily confidential officer-and the latter is that the
latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the
time of his appointment or election, and becomes fixed and determined when the appointing
power expresses its decision to put an end to the services of the incumbent. When this event
takes place, the latter is not removed or dismissed from office-his term merely expired,

The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes,
stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said
case We stated that:
The tenure of officials holding primarily confidential positions ends upon loss of confidence,
because their term of office lasts only as long as confidence in them endures, and thus their
cessation involves no removal.

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

SECOND DIVISION
G.R. No. 141141

June 25, 2001

PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR), petitioner,

vs.
CARLOS P. RILLORAZA, respondent.
DE LEON, JR., J.:
Before us is a petition for review on certiorari praying for the reversal of the Decision dated August
31, 19991 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals in CAG.R. SP No. 51803.
The facts are undisputed:
On November 5, 1997, administrative charges for dishonesty, grave misconduct, conduct prejudicial to
the best interest of the service, and loss of confidence, were brought against respondent Carlos P.
Rilloraza, a casino operations manager of petitioner PHILIPPINE AMUSEMENT AND GAMING
CORPORATION (PAGCOR). Respondent allegedly committed the following acts:
Summary description of charge(s):
Failure to prevent an irregularity and violations of casino and regulations committed by coofficers during his shift on October 9, 1997.
1. During his shift of 6:00 a.m.2:00 p.m. on October 9, 1997, four (4) personal checks
with a total value of Pesos: Five Million (P5,000,000) were issued by a small-time
financier/player and were facilitated by a COM with the Treasury Division which
enabled the small-time financier/player to withdraw and receive said amount. The
facilitation of the checks was not authorized by the Senior Branch Manager (SBM) or
the Branch Manager for Operations (BMO) and the COM who facilitated the checks
was not on duty then.
2. He even facilitated one (1) of the personal checks with a value of Pesos: Five
Hundred Thousand (P500,000.00).
3. He failed to stop a top-ranking officer from placing bets over and above the allowable
limit of P5,000.00 per deal, he failed to stop the same officer from playing in the big
tables and lastly, he allowed the same officer to play beyond the allowable time limit of
6:00 a.m.
Respondent duly filed his answer during an investigation conducted by petitioners Corporate
Investigation Unit. He narrated the events that transpired:
"When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I saw BM
RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside Area 3.

While inside the Area 3, GAM RENE QUITO approached me with a check worth P500,000.00
requested by a customer for endorsement to the Treasury. Since Ive been out of Manila branch
for 2 years and Ive just been recalled to this branch for only more than 3 weeks, Im not quite
familiar with the systems and I dont know this customer. I immediately approached COM
CARLOS GONZALES, who at that time was still around, to verify regarding the said check
and his immediate reply was "ITS OKAY AND GOOD AND IT WAS GUARANTEED BY
BM SYHONGPAN. In fact, I reconfirmed it again with COM GONZALES since he is more
familiar with the systems and customers, he answered me the same. So I gave the approval to
GAM QUITO for endorsement. When I went in the office, I instructed OOS GILBERT
CABANA to beep SBM VIC ADVINCULA and BMO DARIO CORDERO to call office
"ASAP" because I wanted to relay this matter to them and there were no reply from both of
them. I instructed OOS CABANA to send messages again to SBM & BMO, but still I received
no reply. It was until after noontime that BMO CORDERO returned my call and I reported the
incident to him. When I was at home at around 3:30 p.m. SBM ADVINCULA returned my call
and I reported the incident. I also relayed the incident to SBM REYES.
While during my rounds, I went down to the New VIP area and there I saw BM SYHONGPAN
sitting at TABLE #3(BB) and he was holding house cards at that time. I approached and
stopped him but he reacted that the bet was not his but to a CUSTOMERS. I took his words
because as a subordinate, I respected him as one of our superior who very well know all our
companys policy esp. that an officer is not allowed to play at BIG table and are only allowed to
bet with a maximum of P5,000.00 only. So I believe it was not his bet but the said customer. At
that time there was no way for me to stop the game because I saw the said customer, named
MS. CORAZON CASTILLO, whom I dont know her [sic] since I was out of Manila Branch 2
years, and whom BM SYHONGPAN was referring to as the player, has a lot of chips worth
about P7 Million in front of her and was betting P1.5M on the banker side which was over the
maximum table limit by P500,000.00. I know we are allowed to authorize approval by raising
the betting limits as per request of the playing customers.
After the game, the chips were encashed and I instructed GAM J. EUGENIO to accompany BM
SYHONGPAN to his room because he was too drunk. When I was doing my rounds again,
thats how I found out from rumors within the gaming areas that this MS. CASTILLO was used
by BM SYHONGPAN and COM GONZALES to played [sic] in behalf of them the whole time.
And I also learned that there were four checks endorsed during my shift which I facilitated only
one check worth P500,000.00 after I verified and confirmed it with COM GONZALES. With
regards to the other 3 checks, I have no knowledge about it since they, BM SYHONGPAN and
COM GONZALES, kept it a secret from me. When GAM EUGENIO returned from the room
of BM SYHONGPAN he handed me some cash, which according to him, was given by BM
SYHONGPAN as BALATO. I did not accept the money because at that moment I was so mad
that they involved me beyond my innocence since I am new in the branch. I then instructed
GAM EUGENIO to return the money to BM SYHONGPAN. (sic)
Finding Rillorazas explanation unsatisfactory, the PAGCOR Board handed down a Resolution on
December 2, 1997 dismissing respondent and several others from PAGCOR, on the grounds of
dishonesty, grave misconduct and/or conduct prejudicial to the best interest of the service and loss of
confidence, effective December 5, 1997. The Board also denied respondents motion for
reconsideration in a Resolution dated December 16, 1997.

Respondent appealed to the Civil Service Commission. On November 20, 1998, the Commission issued
Resolution No. 983033,2 the dispositive portion of which provides, to wit:
WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the
Commission finds appellant guilty only of Simple Neglect of Duty and metes out upon him the
penalty of one month and one day suspension. The assailed Resolution of PAGCOR Board of
Directors is thus modified.
The Commission denied petitioners motion for reconsideration in Resolution No. 990465 dated
February 16, 1999.3
On appeal, the Court of Appeals affirmed the resolution of the Commission.4 The appellate court
ordered petitioner to reinstate private respondent with payment of full backwages plus all tips, bonuses
and other benefits accruing to his position and those received by other casino operations managers for
the period starting January 5, 1998 until his actual reinstatement. Petitioner filed a motion for
reconsideration,5 which was denied by the appellate court in the assailed resolution of November 29,
1999.6
Hence, the instant petition.
PAGCOR avers that:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED TO
CONSIDER THAT RESPONDENT WAS A CONFIDENTIAL APPOINTEE OR
EMPLOYEE WHOSE TERM HAD EXPIRED BY REASON OF LOSS OF CONFIDENCE.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC
RESOLUTIONS MODIFYING THE PENALTY METED OUT ON RESPONDENT FROM
DISMISSAL TO SUSPENSION, DESPITE THE GRAVITY OR SERIOUSNESS OF THE
OFFENSES COMMITTED BY THE LATTER ON ACCOUNT OF THE EXTRAORDINARY
RESPONSIBILITIES AND DUTIES REPOSED IN THE RESPONDENT BY VIRTUE OF
HIS POSITION.
The wellspring of stability in government service is the constitutional guarantee of entrance according
to merit and fitness and security of tenure, viz:
xxx

xxx

xxx

(2) Appointments in the civil service shall be made only according to merit and fitness to be
determined, as far as practicable, and, except to positions which are policy-determining,
primarily confidential, or highly technical, by competitive examination.

(3) No officer or employee of the civil service shall be removed or suspended except for cause
provided by law.7
xxx

xxx

xxx

In the case at bar, we are basically asked to determine if there is sufficient cause to warrant the
dismissal, not merely the suspension, of respondent who, petitioner maintains, occupies a primarily
confidential position. In this connection, Section 16 of Presidential Decree No. 18698 provides:
Exemption.All positions in the Corporation, whether technical, administrative, professional or
managerial are exempt from the provisions of the Civil Service Law, rules and regulations, and
shall be governed only by the personnel management policies set by the Board of Directors. All
employees of the casinos and related services shall be classified as "Confidential" appointee.
Petitioner argues that pursuant to the aforequoted provision, respondent is a primarily confidential
employee. Hence, he holds office at the pleasure of the appointing power and may be removed upon
the cessation of confidence in him by the latter. Such would not amount to a removal but only the
expiration of his term. However, there should be no lingering doubt as to the true import of said Section
16 of P.D. No. 1869. We have already definitively settled the same issue in Civil Service Commission
v. Salas,9 to wit:
In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section
16 of Presidential Decree No. 1869 may no longer be applied in the case at bar because the
same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of the 1987
Constitution. This is not completely correct. On this point, we approve the more logical
interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it
exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been
amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292
(Administrative Code of 1987).
However, the same cannot be said with respect to the last portion of Section 16 which provides
that "all employees of the casino and related services shall be classified as confidential
appointees." While such executive declaration emanated merely from the provisions of Section
2, Rule XX of the Implementing Rules of the Civil Service Act of 1959, the power to declare a
position as policy-determining, primarily confidential or highly technical as defined therein has
subsequently been codified and incorporated in Section 12(9), Book V of Executive Order No.
292 or the Administrative Code of 1987. This later enactment only serves to bolster the validity
of the categorization made under Section 16 of Presidential Decree No. 1869. Be that as it may,
such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized
instances when a position may be considered primarily confidential: Firstly, when the President,
upon recommendation of the Commissioner of Civil Service, has declared the position to be
primarily confidential; and, secondly, in the absence of such declaration, when by the nature of
the functions of the office there exists "close intimacy" between the appointee and appointing
power which insures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state.

At first glance, it would seem that the instant case falls under the first category by virtue of the
express mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis,
however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that
"the non-competitive or unclassified service shall be composed of positions expressly declared
by law to be in the non-competitive or unclassified service or those which are policydetermining, primarily confidential, or highly technical in nature." In the case of Piero, et al.
vs. Hechanova, et al., the Court obliged with a short discourse there on how the phrase "in
nature" came to find its way into the law, thus:
"The change from the original wording of the bill (expressly declared by law x x x to be
policy-determining, etc.) to that finally approved and enacted (or which are policy
determining, etc. in nature) came about because of the observations of Senator Taada,
that as originally worded the proposed bill gave Congress power to declare by fiat of
law a certain position as primarily confidential or policy-determining, which should not
be the case. The Senator urged that since the Constitution speaks of positions which are
primarily confidential, policy-determining or highly technical in nature, it is not within
the power of Congress to declare what positions are primarily confidential or policydetermining. It is the nature alone of the position that determines whether it is policydetermining or primarily confidential. Hence, the Senator further observed, the matter
should be left to the proper implementation of the laws, depending upon the nature of
the position to be filled, and if the position is highly confidential then the President
and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, But in positions that involved both confidential
matters and matters which are routine, x x x who is going to determine whether it is
primarily confidential? Senator Taada replied:
SENATOR TAADA: Well, at the first instance, it is the appointing power that
determines that: the nature of the position. In case of conflict then it is the Court
that determines whether the position is primarily confidential or not." xxx
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the
nature of the position which finally determines whether a position is primarily confidential,
policy-determining or highly technical. And the Court in the aforecited case explicitly decreed
that executive pronouncements, such as Presidential Decree No. 1869, can be no more than
initial determinations that are not conclusive in case of conflict. It must be so, or else it would
then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the
protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution. In other
words, Section 16 of Presidential Decree No. 1869 cannot be given a literally stringent
application without compromising the constitutionally protected right of an employee to
security of tenure. [italics supplied]
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was
reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential Decree
No. 807, or the Civil Service Decree of the Philippines. It may well be observed that both the
1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that

"appointments in the Civil Service, except as to those which are policy-determining, primarily
confidential, or highly technical in nature, shall be made only according to merit and fitness, to
be determined as far as practicable by competitive examination." Corollarily, Section 5 of
Republic Act No. 2260 states that "the non-competitive or unclassified service shall be
composed of positions expressly declared by law to be in the non-competitive or unclassified
service or those which are policy-determining, primarily confidential, or highly technical in
nature." Likewise, Section 1 of the General Rules in the implementing rules of Presidential
Decree No. 807 states that "appointments in the Civil Service, except as to those which are
policy-determining, primarily confidential, or highly technical in nature, shall be made only
according to merit and fitness to be determined as far as practicable by competitive
examination." Let it be here emphasized, as we have accordingly italicized them, that these
fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to
describe the character of the positions being classified.1wphi1.nt
The question that may now be asked is whether the Piero doctrineto the effect that
notwithstanding any statutory classification to the contrary, it is still the nature of the position,
as may be ascertained by the court in case of conflict, which finally determines whether a
position is primarily confidential, policy-determining or highly technicalis still controlling
with the advent of the 1987 Constitution and the Administrative Code of 1987, Book V of
which deals specifically with the Civil Service Commission, considering that from these later
enactments, in defining positions which are policy-determining, primarily confidential or highly
technical, the phrase "in nature" was deleted.
We rule in the affirmative. The matter was clarified and extensively discussed during the
deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service
provisions, to wit:
"MR. FOZ: Which department of government has the power or authority to determine
whether a position is policy-determining or primarily confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive
department, but the final decision is done by the court. The Supreme Court has
constantly held that whether or not a position is policy-determining, primarily
confidential or highly technical, it is determined not by the title but by the nature of the
task that is entrusted to it. For instance, we might have a case where a position is created
requiring that the holder of that position should be a member of the Bar and the law
classifies this position as highly technical. However, the Supreme Court has said before
that a position which requires mere membership in the Bar is not a highly technical
position. Since the term highly technical means something beyond the ordinary
requirements of the profession, it is always a question of fact.
MR. FOZ: Does not Commissioner Bernas agree that the general rule should be that the
merit system or the competitive system should be upheld?
FR. BERNAS: I agree that that should be the general rule; that is why we are putting
this as an exception.

MR. FOZ: The declaration that certain positions are policy-determining, primarily
confidential or highly technical has been the source of practices which amount to the
spoils system.
FR. BERNAS: The Supreme Court has always said that, but if the law of the
administrative agency says that a position is primarily confidential when in fact it is not,
we can always challenge that in court. It is not enough that the law calls it primarily
confidential to make it such; it is the nature of the duties which makes a position
primarily confidential.
MR. FOZ: The effect of a declaration that a position is policy-determining, primarily
confidential or highly technicalas an exceptionis to take it away from the usual
rules and provisions of the Civil Service Law and to place it in a class by itself so that it
can avail itself of certain privileges not available to the ordinary run of government
employees and officers.
FR. BERNAS: As I have already said, this classification does not do away with the
requirement of merit and fitness. All it says is that there are certain positions which
should not be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we
require a physicist to undergo a competitive examination before appointment? Or a confidential
secretary or any position in policy-determining administrative bodies, for that matter? There are
other ways of determining merit and fitness than competitive examination. This is not a denial
of the requirement of merit and fitness."
It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of
the 1987 Constitution in providing for the declaration of a position as policy-determining,
primarily confidential or highly technical is to exempt these categories from competitive
examination as a means for determining merit and fitness. It must be stressed further that these
positions are covered by security of tenure, although they are considered non-competitive only
in the sense that appointees thereto do not have to undergo competitive examinations for
purposes of determining merit and fitness. [italics supplied]
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution
wherein it stated that "the declaration of a position as primarily confidential if at all, merely
exempts the position from the civil service eligibility requirement." Accordingly, the Piero
doctrine continues to be applicable up to the present and is hereby maintained. Such being the
case, the submission that PAGCOR employees have been declared confidential appointees by
operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected.
Justice Regalados incisive discourse yields three (3) important points: first, the classification of a
particular position as primarily confidential, policy-determining or highly technical amounts to no more
than an executive or legislative declaration that is not conclusive upon the courts, the true test being the
nature of the position. Second, whether primarily confidential, policy-determining or highly technical,
the exemption provided in the Charter pertains to exemption from competitive examination to
determine merit and fitness to enter the civil service. Such employees are still protected by the mantle
of security of tenure. Last, and more to the point, Section 16 of P.D. 1869, insofar as it declares all

positions within PAGCOR as primarily confidential, is not absolutely binding on the courts.
Considerations vary so as to make a position primarily confidential. Private secretaries are indisputably
primarily confidential employees.10 Those tasked to provide personal security to certain public officials
have also been deemed to hold primarily confidential positions11 for obvious reasons: the former
literally are responsible for the life and well-being of the latter. Similar treatment was accorded to those
occupying the posts of city legal officer12 and provincial attorney,13 inasmuch as the highly privileged
nature of the lawyer-client relationship mandates that complete trust and confidence must exist betwixt
them. National interest has also been adjudged a factor, such that the countrys permanent
representative to the United Nations was deemed to hold her post at the pleasure of the Chief
Executive.14
As casino operations manager, Rillorazas duties and responsibilities are:
JOB SUMMARY: The Casino Operations Manager directs, controls and supervises the
Operations Division of the branch. He reports directly to the Branch Manager or to the Branch
Manager for Operations in Metro Manila branches.
DUTIES AND RESPONSIBILITIES:
1. Formulates marketing programs and plans of action for branch gaming operations in
order to optimize revenue.
2. Institutes and maintains a healthy, organized, mentally alert, and highly motivated
human resource for effective and efficient branch gaming operations performance.
3. Takes measures to maintain and uphold the integrity of the casino games.
4. Reviews, analyzes, and evaluates gaming table and slot machine operations reports,
including income performance.
5. Submits periodic reports to the Branch Manager.
6. Directs the opening and closing of gaming table and slot machine areas.
7. Directs the setting-up, closure or suspension of operations of gaming tables and slot
machine units when deemed necessary.
8. Controls the requisition, storage, and issuance of playing cards, gaming equipment
and paraphernalia, operations keys, and accountable receipts and slips.
9. Ensures that gaming operations personnel adhere to the established House Rules,
company policies and procedures.
10. Ensures that quality and efficient service is extended to casino patrons in accordance
with the established House Rules, company policies and procedures.

11. Directs and controls all activities of the Card Shuffling Center and the Card
Distribution Room.
12. Issues directives, memoranda, and other official communications on branch gaming
operations matters.
13. Directs the daily and periodic performance evaluation of operations personnel.
14. Requires written statements from operations personnel regarding disputes, reported
irregularities and violations of House Rules, company policies and procedures.
15. Issues or recommends disciplinary sanctions against delinquent operations
personnel, as well as commendations to deserving ones.
16. Upon the Branch Managers approval, issues preventive suspension to erring
employees pending investigation.
17. Effects immediate changes in House Rules when deemed necessary, subject to
management review.
18. Approves table refill, chip yield, and dropbox yield transactions, as well as the
payment for progressive link super jackpot awards.
19. Directs the cancellation of progressive link super jackpot combinations.
20. Signs chip checks in behalf of the Branch Manager.
21. Approves complimentary food and beverages to deserving players and evaluates the
same for the possible extension of other amenities.
22. Settles disputes arising from gaming operations that have not been effectively settled
by gaming managers and supervisors, and enforces decisions on the interpretation of
House Rules, company policies, and procedures.
23. Recommends to the Branch Manager the banning of undesirable players.
24. Orders the removal of customers or employees from the table gaming (sic) and slot
machine area for justifiable reasons.
25. Implements contingency plans in case of emergencies to ensure the security and
safety of customers and staff.
26. Acts on customer complaints, suggestions, and observations.
27. Chairs the Branch Infractions Committee, the Variance Committee, and other ad
hoc committees of the Operations Division.

28. Represents the Operations Division in Branch Management panel meetings.

29. Apprises the Branch Manager of any incident of doubtful nature and of
developments that require his immediate attention.
30. Performs other duties as may be designated by the Branch Manager.
Undoubtedly, respondents duties and responsibilities call for a great measure of both ability and
dependability. They can hardly be characterized as routinary, for he is required to exercise supervisory,
recommendatory and disciplinary powers with a wide latitude of authority. His duties differ markedly
from those we previously ruled as not primarily confidential: for instance, PAGCORs Internal Security
Staff;15 Management and Audit Analyst I of the Economic Intelligence and Investigation Bureau;16 a
Special Assistant to the Governor of the Central Bank;17 the Legal Staff of the Provincial Attorney;18
members of the Customs Police;19 the Senior Executive Assistant, Clerk I, Supervising Clerk I and
Stenographer;20 and a Provincial Administrator.21 In this sense, he is a tier above the ordinary rank-andfile in that his appointment to the position entails faith and confidence in his competence to perform his
assigned tasks. Lacking, therefore, is that amplitude of confidence reposed in him by the appointing
power so as to qualify his position as primarily confidential. Verily, we have observed that:
[i]ndeed, physicians handle confidential matters. Judges, fiscals and court stenographers
generally handle matters of similar nature. The Presiding and Associate Justices of the Court of
Appeals sometimes investigate, by designation of the Supreme Court, administrative complaints
against judges of first instance, which are confidential in nature. Officers of the Department of
Justice, likewise, investigate charges against municipal judges. Assistant Solicitors in the Office
of the Solicitor General often investigate malpractice charges against members of the Bar. All
of these are "confidential" matters, but such fact does not warrant the conclusion that the office
or position of all government physicians and all Judges, as well as the aforementioned assistant
solicitors and officers of the Department of Justice are primarily confidential in character.22
We further note that a casino operations manager reports directly to the Branch Manager or, in Metro
Manila branches, to the Branch Manager for Operations. It does not appear from the record to whom
the Branch Manager (or the Branch Manager for Operations, as the case may be) reports. It becomes
unmistakable, though, that the stratum separating the casino operations manager from reporting directly
to the higher echelons renders remote the proposition of proximity between respondent and the
appointing power. There is no showing of that element of trust indicative of a primarily confidential
position, as we defined it in De los Santos v. Mallare,23 to wit:
Every appointment implies confidence, but much more than ordinary confidence is reposed in
the occupant of a position that is primarily confidential. The latter phrase denotes not only
confidence in the aptitude of the appointee for the duties of the office but primarily close
intimacy which insures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state.
Necessarily, the point of contention now is whether there was cause for the respondents separation
from the service. On this point, having analyzed both parties arguments, we find that the Civil Service
Commission did not err in declaring that Rilloraza was liable only for simple neglect of duty. In the
first place, there is no evidence to sustain a charge of dishonesty. As the latter term is understood, it
implies a:

Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity. Lack of

honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to
defraud, deceive or betray.24
In the case at bar, respondents explanation fails to evince an inclination to lie or deceive, or that he is
entirely lacking the trait of straightforwardness. We concur with the appellate courts finding, thus:
Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at Table
No. 3BB, respondent Rilloraza at once, told him to stop. However, Syhongpan explained that he
was merely playing for a customer, Ms. Corazon Castillo who was seated also at the table. After
observing the large number of chips in front of Ms. Castillo estimated at around P7M,
respondent became convinced of the clarification given by Branch Manager Syhongpan and he
must have relied also on the word of said top ranking PAGCOR official whose representation
must ordinarily be accepted and accorded respect and credence by a subordinate like him. xxx
More importantly, the PAGCOR Adjudication Committee concluded that respondent actually
attempted to stop the game where Syhongpan was playing which was even utilized as basis by
the PAGCOR Board in dismissing respondent. xxx
xxx

xxx

xxx

xxx

The allegation that respondent Rilloraza allowed Syhongpan to place bets over and above the
allowable limit of P5,000.00 per deal is not anchored on a correct premise. Respondent
Rilloraza has steadfastly maintained that he is of the belief that BM Syhongpan is not playing
for himself but for Ms. Castillo. Thus, if Syhongpan is merely acting for the real casino player,
then the policy of not allowing any PAGCOR official to bet beyond P5,000.00 has no
application. Respondent Rilloraza believed in good faith that the bet was not BM Syhongpans
but of Ms. Castillo and should not be unduly punished for his honest belief. The same reason
exists for the claim that respondent allowed BM Syhongpan to play beyond 6:00 a.m. This is
non sequitur since Rilloraza never entertained the idea that Syhongpan was the gambler.
Lastly, if only to consummate respondents alleged dishonesty and grave misconduct by
corruptly profiting from said incident, he could have easily pocketed the balato given by
Syhongpan, but he never did, and in fact, returned the money. xxx
xxx

xxx

xxx

xxx

On the facilitation of the swap of a P500,000.00 personal check for chips, this Court, after
considering the parties involved and the circumstances of the case, believes that respondent
Rilloraza has judiciously performed all the acts necessary to protect the interests of PAGCOR
and has acted as a prudent and reasonable man. It is evident that respondent had the authority to
approve the exchange of checks for gambling chips. In the exercise of such discretion, We find
that the approval by Rilloraza of the exchange was done with caution and circumspect [sic].
When he was approached by GAM Quito for endorsement of said personal checks per request
of a customer, he immediately approached COM Gonzales to verify the check who assured him
that the check was good and in fact guaranteed by Mr. Syhongpan, Davao City Branch Manager
of PAGCOR. To be sure, he even reconfirmed the same with Gonzales as he is more familiar
with the systems and the customers since he has been recalled to the branch for only three (3)

weeks. After approving the endorsement, he immediately tried to contact SBM Advincula and
BMO Cordero, to notify them of his action but none of them called back. In the afternoon, both
returned the call and were informed by respondent of the exchange of the chips for the check
and presumably, the former ratified or acquiesced to the action of respondent since there was no
objection or complaint about the matter. xxx
These same findings negate the conclusion that respondent is guilty of misconduct or conduct
prejudicial to the best interest of the service. In Manuel v. Calimag, Jr.,25 we defined misconduct, thus:
Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in
these words: "Misconduct in office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his performance of his duties as an
officer and not such only as affects his character as a private individual. In such cases, it has
been said at all times, it is necessary to separate the character of the man from the character of
the officer x x x. It is settled that misconduct, misfeasance, or malfeasance warranting removal
from office of an officer, must have direct relation to and be connected with the performance of
official duties amounting either to maladministration or willful, intentional neglect and failure
to discharge the duties of the office x x x.
Differently propounded in Canson v. Garchitorena, et al.,26 misconduct is "any unlawful conduct on
the part of a person concerned in the administration of justice prejudicial to the rights of parties or to
the right determination of the cause. It generally means wrongful, improper or unlawful conduct
motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily
imply corruption or criminal intent. On the other hand, the term gross connotes something out of all
measure; beyond allowance; not to be excused; flagrant; shameful." From the facts given, absent is
that element of intent to do wrong against petitioner.
CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty as a less grave
offense punishable as a first offense by suspension of one (1) month and one (1) day to six (6)
months.27 In the imposition of the proper penalty, Section 54 thereof provides, as follows: (a) the
minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are
present; (b) the medium of the penalty shall be imposed where no mitigating and aggravating
circumstances are present; and (c) the maximum of the penalty shall be imposed where only
aggravating and no mitigating circumstances are present. In turn, the circumstances that may be
properly considered are:
Section 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. In the
determination of the penalties to be imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered.1wphi1.nt
The following circumstances shall be appreciated:
a. Physical illness
b. Good faith
c. Taking undue advantage of official position

d. Taking undue advantage of subordinate

e. Undue disclosure of confidential information
f. Use of government property in the commission of the offense
g. Habituality
h. Offense is committed during office hours and within the premises of the office or
building
i. Employment of fraudulent means to commit or conceal the offense
j. Length of service in the government
k. Education, or
l. Other analogous circumstances
Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper
party, otherwise, said circumstances shall not be considered in the imposition of the proper
penalty. The Commission, however, in the interest of substantial justice may take and consider
these circumstances.
We find that the Civil Service Commission, as affirmed by the Court of Appeals, correctly attributed
good faith on the part of respondent. Accordingly, the modified penalty imposed by the Civil Service
Commission on the respondent which was affirmed by the Court of Appeals, was proper under the
premises.
WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated August 31,
1999 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals in CAG.R. SP No. 51803 are hereby AFFIRMED. No costs.
SO ORDERED.
THIRD DIVISION
G.R. No. L-66614 January 25, 1988
PRIMITIVO LEVERIZA, FE LEVERIZA, PARUNGAO & ANTONIO C. VASCO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, MOBIL OIL PHILIPPINES & CIVIL AERONAUTICS
ADMINISTRATION, respondents.

BIDIN, J.:

This is a Petition for Review on certiorari seeking the reversal of the decision of the
Intermediate Appellate Court, Third Division * dated February 29, 1984 in AC-G.R. No. CV No.
61705 entitled Mobil Oil Philippines, Inc., plaintiff-appellee vs. Primitivo Leveriza Parungao,
Antonio C. Vasco and Civil Aeronautics Administration, defendants-appellants; Primitive
Leveriza, Fe Leveriza Parungao and Antonio C. Leveriza, cross-defendant, affirming in toto
the decision of the trial court dated April 6, 1976.
As found by the trial court and adopted by the Intermediate Appellate Court, the facts of this
case are as follows:
Around three contracts of lease resolve the basic issues in the instant case. These three
contracts are as follows:
First Contract. For purposes of easy reference and brevity, this contract shall be referred to
hereinafter as Contract A. This is a "CONTRACT OF LEASE", executed between the
REPUBLIC OF THE PHILIPPINES, represented by Defendant CIVIL AERONAUTICS
ADMINISTRATION, as lessor, and ROSARIO C. LEVERIZA, as lessee, on April 2, 1965, over a
certain parcel of land at the MIA area, consisting of approximately 4,502 square meters, at a
monthly rental of P450.20, for a period of 25 years, (Exhibit "A", Exhibit "I-Leverizas", Exhibit "ICAA").
Second Contracts. For purposes of easy references and brevity, this contract shall be
referred to hereinafter as Contract B. This is a "LEASE AGREEMENT", executed between
ROSARIO C. LEVERIZA, as lessor, and Plaintiff MOBIL OIL PHILIPPINES, INC., as lessee on
May 21, 1965, over 3,000 square meters of that SAME Parcel of land subject of Contract A
above mentioned, at a monthly rental of P1,500.00, for a period of 25 years (Exhibit 'B', Exhibit
4-Leverizas' ).
Third Contract. For purposes of easy reference and brevity, this contract shall be referred to
hereinafter as Contract C. This is a "LEASE AGREEMENT", executed between Defendant CIVIL
AERONAUTICS ADMINISTRATION, as lessor, and plaintiff MOBIL OIL PHILIPPINES, INC., as
lessee, on June 1, 1968 over that SAME parcel of land (Lot A, on plan being a portion of Parcel,
Psu 2031), containing an area of 3,000 square meters more or less, at a monthly rental of P.25
per square meter for the second 200 square meters, and P.20 per square meter for the rest, for
a period of 29 (sic) years. (Exhibit "C").
There is no dispute among the parties that the subject matter of the three contracts of lease
above mentioned, Contract A, Contract B, and Contract C, is the same parcel of land, with the
noted difference that while in Contract A, the area leased is 4,502 square meters, in Contract B
and Contract C, the area has been reduced to 3,000 square meters. To summarize:
Contract A a lease contract of April 2, 1965 between the Republic of the
Philippines, represented by Defendant Civil Aeronautics Administration and
Rosario C. Leveriza over a parcel of land containing an area of 4,502 square
meters, for 25 years.
Contract B a lease contract (in effect a sublease) of May 21, 1965 between
defendant Rosario C. Leveriza and plaintiff Mobil Oil Philippines, Inc. over the
same parcel of land, but reduced to 3,000 square meters for 25 years; and
Contract C a lease contract of June 1, 1968 between defendant Civil
Aeronautics Administration and plaintiff Mobil Oil Philippines, Inc., over the
same parcel of land, but reduced to 3,000 square meters, for 25 years.

It is important to note, for a clear understanding of the issues involved, that it appears that
defendant Civil Aeronautics Administration as LESSOR, leased the same parcel of land, for
durations of time that overlapped to two lessees, to wit: (1) Defendant Rosario C. Leveriza, and
that plaintiff Mobil Oil Philippines, Inc., as LESSEE, leased the same parcel of land from two
lessors, to wit: (1) defendant Rosario C. Leveriza and (2) defendant Civil Aeronautics
Administration, Inc., for durations of time that also overlapped.
For purposes of brevity defendant Civil Aeronautics Administration shall be referred to
hereinafter as defendant CAA.
Rosario C. Leveriza, the lessee in Contract A and the lessor in Contract B, is now deceased.
This is the reason why her successor-in-interest, her heirs, are sued, namely: Defendants
Primitive Leveriza, her second husband, (now also deceased), Fe Leveriza Parungao, her
daughter by her second husband, and Antonio C. Vasco, her son by her first husband. For
purposes of brevity, these defendants shall be referred to hereinafter as Defendants Leveriza.
Plaintiff Mobil Oil Philippines, Inc., shall be referred to hereinafter simply as the Plaintiff. (pp. 9599, Record on Appeal).
Plaintiff in this case seeks the rescission or cancellation of Contract A and Contract B on the
ground that Contract A from which Contract B is derived and depends has already been
cancelled by the defendant Civil Aeronautics Administration and maintains that Contract C with
the defendant CAA is the only valid and subsisting contract insofar as the parcel of land, subject
to the present litigation is concerned. On the other hand, defendants Leverizas' claim that
Contract A which is their contract with CAA has never been legally cancelled and still valid and
subsisting; that it is Contract C between plaintiff and defendant CAA which should be declared
void.
Defendant CAA asserts that Exhibit "A" is still valid and subsisting because its cancellation by
Guillermo Jurado was ineffective and asks the court to annul Contract A because of the violation
committed by defendant Leveriza in leasing the parcel of land to plaintiff by virtue of Contract B
without the consent of defendant CAA. Defendant CAA further asserts that Contract C not
having been approved by the Director of Public Works and Communications is not valid. ...
xxx xxx xxx

After trial, the lower court render judgment on April 6, 1976 the dispositive part of which
reads:
WHEREFORE, after having thus considered the evidence of all the parties, testimonial and
documentary, and their memoranda and reply-memoranda, this Court hereby renders judgment:
1. Declaring Contract A as having been validly cancelled on June 28, 1966, and
has therefore ceased to have any effect as of that date;
2. Declaring that Contract B has likewise ceased to have any effect as of June
28, 1966 because of the cancellation of Contract A;
3. Declaring that Contract C was validly entered into on June 1, 1968, and that it
is still valid and subsisting;
4. Ordering defendant CAA to refund to defendants Leverizas the amount of
P32,189.30 with 6% per annum until fully paid;

5. Ordering defendants Leverizas to refund to plaintiff the amount of P48,000.00

with 6% interest per annum until fully paid;
6. Dismissing defendants Leverizas' four counterclaims against plaintiff;
7. Dismissing defendants Leverizas' cross-claim against defendant CAA;
8. Dismissing defendant CAA's counterclaim against plaintiff;
9. Dismissing defendant CAA's counterclaim against defendant Leverizas.
No pronouncements as to costs.

On June 2, 1976, defendant Leveriza filed a motion for new trial on the ground of newly
discovered evidence, lack of jurisdiction of the court over the case and lack of evidentiary
support of the decision which was denied in the order of November 12,1976 (Rollo, p. 17).
On July 27, 1976, the CAA filed a Motion for Reconsideration, averring that because the lot
lease was properly registered in the name of the Republic of the Philippines, it was only the
President of the Philippines or an officer duly designated by him who could execute the lease
contract pursuant to Sec. 567 of the Revised Administrative Code; that the Airport General
Manager has no authority to cancel Contract A, the contract entered into between the CAA
and Leveriza, and that Contract C between the CAA and Mobil was void for not having been
approved by the Secretary of Public Works and Communications. Said motion was however
denied on November 12, 1976 (Rollo, p. 18).
On appeal, the Intermediate Appellate Court, being in full accord with the trial court, rendered
a decision on February 29, 1984, the dispositive part of which reads:
WHEREFORE, finding no reversible error in the decision of the lower court dated April 6, 1976,
the same is hereby affirmed in toto.

Hence, this petition.

The petitioners raised the following assignment of errors:
I
THE INTERMEDIATE APPELLATE COURT ERRED IN HOLDING THAT THE
ADMINISTRATOR OF THE CIVIL AERONAUTICS ADMINISTRATION (CAA) HAD THE
STATUTORY AUTHORITY TO LEASE, EVEN WITHOUT APPROVAL OF THE THEN
SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, REAL PROPERTY
BELONGING TO THE REPUBLIC OF THE PHILIPPINES.
II
THE INTERMEDIATE APPELLATE COURT ERRED IN HOLDING THAT THE
ADMINISTRATOR OF THE CIVIL AERONAUTICS ADMINISTRATION HAD STATUTORY
AUTHORITY, WITHOUT THE APPROVAL OF THE THEN SECRETARY OF PUBLIC WORKS
AND COMMUNICATIONS, TO CANCEL A LEASE CONTRACT OVER REAL PROPERTY
OWNED BY THE REPUBLIC OF THE PHILIPPINES, WHICH CONTRACT WAS APPROVED,

AS REQUIRED BY LAW, BY THE SECRETARY.

III
THE INTERMEDIATE APPELLATE COURT ERRED WHEN IT RULED THAT THE CONTRACT
OF SUBLEASE (CONTRACT B) ENTERED INTO BETWEEN PETITIONERS'
PREDECESSOR-IN-INTEREST AND RESPONDENT MOBIL OIL PHILIPPINES, INC. WAS
WITHOUT THE CONSENT OF THE ADMINISTRATOR OF THE CIVIL AERONAUTICS
ADMINISTRATION.

The petition is devoid of merit.

There is no dispute that Contract "A" at the time of its execution was a valid contract. The
issue therefore is whether or not said contract is still subsisting after its cancellation by CAA
on the ground of a sublease executed by petitioners with Mobil Oil Philippines without the
consent of CAA and the execution of another contract of lease between CAA and Mobil Oil
Philippines (Contract "C").
Petitioners contend that Contract "A" is still subsisting because Contract "B" is a valid
sublease and does not constitute a ground for the cancellation of Contract "A", while Contract
"C", a subsequent lease agreement between CAA and Mobil Oil Philippines is null and void,
for lack of approval by the Department Secretary. Petitioners anchor their position on
Sections 567 and 568 of the Revised Administrative Code which require among others, that
subject contracts should be executed by the President of the Philippines or by an officer duly
designated by him, unless authority to execute the same is by law vested in some other
officer (Petition, Rollo, pp. 15-16).
At the other extreme, respondent Mobil Oil Philippines asserts that Contract "A" was validly
cancelled on June 28, 1966 and so was Contract "B" which was derived therefrom.
Accordingly, it maintains that Contract "C" is the only valid contract insofar as the parcel of
land in question is concerned and that approval of the Department Head is not necessary
under Section 32 (par. 24) of the Republic Act 776 which expressly vested authority to enter
into such contracts in the Administrator of CAA (Comment; Rollo, p. 83).
On its part, respondent Civil Aeronautics Administration took the middle ground with its view
that Contract "A" is still subsisting as its cancellation is ineffective without the approval of the
Department Head but said contract is not enforceable because of petitioners' violation of its
terms and conditions by entering into Contract "B" of sublease without the consent of CAA.
The CAA further asserts that Contract "C" not having been approved by the Secretary of
Public Works and Communications, is not valid (Rollo, p. 43). However, in its comment filed
with the Supreme Court, the CAA made a complete turnabout adopting the interpretation and
ruling made by the trial court which was affirmed by the Intermediate Appellate Court (Court
of Appeals), that the CAA Administrator has the power to execute the deed or contract of
lease involving real properties under its administration belonging to the Republic of the
Philippines without the approval of the Department Head as clearly provided in Section 32,
paragraph (24) of Republic Act 776.
The issue narrows down to whether or not there is a valid ground for the cancellation of
Contract "A."

Contract "A" was entered into by CAA as the lessor and the Leverizas as the lessee
specifically "for the purpose of operating and managing a gasoline station by the latter, to
serve vehicles going in and out of the airport."
As regards prior consent of the lessor to the transfer of rights to the leased premises, the
provision of paragraph 7 of said Contract reads in full:
7. The Party of the Second part may transfer her rights to the leased premises but in such
eventuality, the consent of the Party of the First Part shall first be secured. In any event, such
transfer of rights shall have to respect the terms and conditions of this agreement.

Paragraph 8 provides the sanction for the violation of the above-mentioned terms and
conditions of the contract. Said paragraph reads:
8. Failure on the part of the Party of the Second Part to comply with the terms and conditions
herein agreed upon shall be sufficient for revocation of this contract by the Party of the First Part
without need of judicial demand.

It is not disputed that the Leverizas (lessees) entered into a contract of sublease (Contract
"B") with Mobil Oil Philippines without the consent of CAA (lessor). The cancellation of the
contract was made in a letter dated June 28, 1966 of Guillermo P. Jurado, Airport General
Manager of CAA addressed to Rosario Leveriza, as follows:
(Letterhead)
June 28, 1966
Mrs. Rosario Leveriza
Manila International Airport
Madam:
It has been found out by the undersigned that you have sublet the property of
the CAA leased to you and by virtue of this, your lease contract is hereby
cancelled because of the violation of the stipulations of the contract. I would like
to inform you that even without having sublet the said property the said contract
would have been cancelled as per attached communication.
Very truly
yours,
For the
Director:
(Sgd.) Illegible
(Typed)
GUILLERMO P. JURADO
Airport General Manager

Respondent Leverizas and the CAA assailed the validity of such cancellation, claiming that
the Airport General Manager had no legal authority to make the cancellation. They maintain
that it is only the Secretary of Public Works and Communications, acting for the President, or
by delegation of power, the Director of Civil Aeronautics Administration who could validly
cancel the contract. They do admit, however, and it is evident from the records that the Airport
General Manager signed "For the Director." Under the circumstances, there is no question
that such act enjoys the presumption of regularity, not to mention the unassailable fact that
such act was subsequently affirmed or ratified by the Director of the CAA himself (Record on
Appeal, pp. 108-110).
Petitioners argue that cancelling or setting aside a contract approved by the Secretary is, in
effect, repealing an act of the Secretary which is beyond the authority of the Administrator.
Such argument is untenable. The terms and conditions under which such revocation or
cancellation may be made, have already been specifically provided for in Contract "A" which
has already been approved by the Department Head, It is evident that in the implementation
of aforesaid contract, the approval of said Department Head is no longer necessary if not
redundant.
It is further contended that even granting that such cancellation was effective, a subsequent
billing by the Accounting Department of the CAA has in effect waived or nullified the
rescission of Contract "A."
It will be recalled that the questioned cancellation of Contract "A" was among others, mainly
based on the violation of its terms and conditions, specifically, the sublease of the property by
the lessee without the consent of the lessor.
The billing of the petitioners by the Accounting Department of the CAA if indeed it transpired,
after the cancellation of Contract "A" is obviously an error. However, this Court has already
ruled that the mistakes of government personnel should not affect public interest. In San
Mauricio Mining Company v. Ancheta (105 SCRA 391, 422), it has been held that as a matter
of law rooted in the protection of public interest, and also as a general policy to protect the
government and the people, errors of government personnel in the performance of their
duties should never deprive the people of the right to rectify such error and recover what
might be lost or be bartered away in any actuation, deal or transaction concerned. In the case
at bar, the lower court in its decision which has been affirmed by the Court of Appeals,
ordered the CAA to refund to the petitioners the amount of rentals which was not due from
them with 6% interest per annum until fully paid.
Petitioners further assail the interpretation of Contract "A", claiming that Contract "B" was a
mere sublease to respondent Mobil Oil Philippines, Inc. and requires no prior consent of CAA
to perfect the same. Citing Article 1650 of the Civil Code, they assert that the prohibition to
sublease must be expressed and cannot be merely implied or inferred (Rollo, p. 151).
As correctly found by the Court of Appeals, petitioners in asserting the non- necessity for a
prior consent interprets the first sentence of paragraph 7 of Contract "A" to refer to an
assignment of lease under Article 1649 of the Civil Code and not to a mere sublease. A
careful scrutiny of said paragraph of Contract "A" clearly shows that it speaks of transfer of

rights of Rosario Leveriza to the leased premises and not to assignment of the lease (Rollo,
pp. 48-49).
Petitioners likewise argued that it was contemplated by the parties to Contract "A" that Mobil
Oil Philippines would be the owner of the gasoline station it would construct on the leased
premises during the period of the lease, hence, it is understood that it must be given a right to
use and occupy the lot in question in the form of a sub-lease (Rollo, p. 152).
In Contract "A", it was categorically stated that it is the lessee (petitioner) who will manage
and operate the gasoline station. The fact that Mobil Oil was mentioned in that contract was
clearly not intended to give approval to a sublease between petitioners and said company but
rather to insure that in the arrangements to be made between them, it must be understood
that after the expiration of the lease contract, whatever improvements have been constructed
in the leased premises shall be relinquished to CAA. Thus, this Court held that "the primary
and elementary rule of construction of documents is that when the words or language thereof
is clear and plain or readily understandable by any ordinary reader thereof, there is absolutely
no room for interpretation or construction anymore." (San Mauricio Mining Company v.
Ancheta, supra).
Finally, petitioners contend that the administrator of CAA cannot execute without approval of
the Department Secretary, a valid contract of lease over real property owned by the Republic
of the Philippines, citing Sections 567 and 568 of the Revised Administrative Code, which
provide as follows:
SEC. 567. Authority of the President of the Philippines to execute contracts relative to real
property. When the Republic of the Philippines is party to a deed conveying the title to real
property or is party to any lease or other contract relating to real property belonging to said
government, said deed or contract shall be executed on behalf of said government by the
President of the Philippines or by an officer duly designated by him, unless authority to execute
the same is by law expressly vested in some other officer. (Emphasis supplied)
SEC. 568. Authority of national officials to make contract. Written contracts not within the
purview of the preceding section shall, in the absence of special provision, be executed, with the
approval of the proper Department Head, by the Chief of the Bureau or Office having control of
the appropriation against which the contract would create a charge; or if there is no such chief,
by the proper Department Head himself or the President of the Philippines as the case may
require.

On the other hand, respondent CAA avers that the CAA Administrator has the authority to
lease real property belonging to the Republic of the Philippines under its administration even
without the approval of the Secretary of Public Works and Communications, which authority is
expressly vested in it by law, more particularly Section 32 (24) of Republic Act 776, which
reads:
Sec. 32. Powers and Duties of the Administrator. Subject to the general control and
supervision of the Department Head, the Administrator shall have, among others, the following
powers and duties:
xxx xxx xxx

(24) To administer, operate, manage, control, maintain and develop the Manila International
Airport and all government aerodromes except those controlled or operated by the Armed
Forces of the Philippines including such power and duties as: ... (b) to enter into, make and
execute contracts of any kind with any person, firm, or public or private corporation or entity; (c)
to acquire, hold, purchase, or lease any personal or real property; right of ways, and easements
which may be proper or necessary: Provided, that no real property thus acquired and any other
real property of the Civil Aeronautics Administration shall be sold without the approval of the
President of the Philippines. ...
There is no dispute that the Revised Administrative Code is a general law while Republic Act
776 is a special law nor in the fact that the real property subject of the lease in Contract "C" is
real property belonging to the Republic of the Philippines.

Under 567 of the Revised Administrative Code, such contract of lease must be executed: (1)
by the President of the Philippines, or (2) by an officer duly designated by him or (3) by an
officer expressly vested by law. It is readily apparent that in the case at bar, the Civil
Aeronautics Administration has the authority to enter into Contracts of Lease for the
government under the third category. Thus, as correctly ruled by the Court of Appeals, the
Civil Aeronautics Administration has the power to execute the deed or contract involving
leases of real properties belonging to the Republic of the Philippines, not because it is an
entity duly designated by the President but because the said authority to execute the same is,
by law expressly vested in it.
Under the above-cited Section 32 (par. 24) of Republic Act 776, the Administrator (Director) of
the Civil Aeronautics Administration by reason of its creation and existence, administers
properties belonging to the Republic of the Philippines and it is on these properties that the
Administrator must exercise his vast power and discharge his duty to enter into, make and
execute contract of any kind with any person, firm, or public or private corporation or entity
and to acquire, hold, purchase, or lease any personal or real property, right of ways and
easements which may be proper or necessary. The exception, however, is the sale of
properties acquired by CAA or any other real properties of the same which must have the
approval of the President of the Philippines. The Court of appeals took cognizance of the
striking absence of such proviso in the other transactions contemplated in paragraph (24) and
is convinced as we are, that the Director of the Civil Aeronautics Administration does not need
the prior approval of the President or the Secretary of Public Works and Communications in
the execution of Contract "C."
In this regard, this Court, ruled that another basic principle of statutory construction mandates
that general legislation must give way to special legislation on the same subject, and
generally be so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo v. De los Angeles, 96 SCRA 139),. that specific statute prevails
over a general statute (De Jesus v. People, 120 SCRA 760) and that where two statutes are
of equal theoretical application to a particular case, the one designed therefor specially should
prevail (Wil Wilhensen, Inc. v. Baluyot, 83 SCRA 38)
WHEREFORE, the petition is DISMISSED for lack of merit and the decision of the Court of
Appeals appealed from is AFFIRMED in toto.
SO ORDERED.

EN BANC
[A.M. No. 98-5-01-SC. November 9, 1998]
In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta
as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively.
DECISION
NARVASA, CJ.:
The question presented for resolution in the administrative matter at bar is whether, during the period
of the ban on appointments imposed by Section 15, Article VII of the Constitution, the President is
nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII. A
corollary question is whether he can make appointments to the judiciary during the period of the ban in
the interest of public service.
Resolution of the issues is needful; it will preclude a recurrence of any conflict in the matter of
nominations and appointments to the Judiciary - as that here involved - between the Chief Executive,
on the one hand, and on the other, the Supreme Court and the Judicial and Bar Council over which the
Court exercises general supervision and wields specific powers including the assignment to it of other
functions and duties in addition to its principal one of recommending appointees to the Judiciary, and
the determination of its Members' emoluments.[1]
I

The Relevant Facts

The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the relevant facts and is
for that reason hereunder reproduce in full.
Referred to the Court En Banc by the Chief Justice are the appointments signed by His Excellency the
President under the date of March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta
as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively. The appointments were received at the Chief Justice's chambers on May 12, 1998. The
referral was made in view of the serious constitutional issue concerning said appointments arising from
the pertinent antecedents.
The issue was first ventilated at the meeting of the Judicial and Bar Council on March 9, 1998. The
meeting had been called, according to the Chief Justice as Ex Officio Chairman, to discuss the question
raised by some sectors about the "constitutionality of *** appointments" to the Court of Appeals,

specifically, in light of the forthcoming presidential elections. Attention was drawn to Section 15,
Article VII of the Constitution reading as follows:
"SEC 15. Two months immediately before the next presidential elections and up to the end of his term,
a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety."
On the other hand, appointments to fill vacancies in the Supreme court during the period mentioned in
the provision just quoted could seemingly be justified by another provision of the same Constitution.
Section 4(1) of Article VIII which states:
"SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.
***. Any vacancy shall be filled within ninety days from the occurrence thereof."
Also pertinent although not specifically discussed is Section 9 of the same Article VIII which provides
that for the lower courts, the President shall issue the appointments - from a list of at least three
nominees prepared by the Council for every vacancy - within ninety days from the submission of the
list.
The view was then expressed by Senior associate Justice Florenz D. Regalado, Consultant of the
Council, who had been a member of the Committee of the Executive Department and of the Committee
on the Judicial Department of the 1986 Constitutional Commission, that on the basis of the
Commission's records, the election ban had no application to appointments to the Court of Appeals.
Without any extended discussion or any prior research and study on the part of the other Members of
the JBC, this hypothesis was accepted, and was then submitted to the President for consideration,
together with the Council's nominations for eight (8) vacancies in the Court of Appeals.
On April 6, 1998 the Chief Justice received an official communication from the Executive Secretary
transmitting the appointments of eight (8) Associate Justices of the Court of Appeals all of which had
been duly signed on March 11, 1998 by His Excellency, the President. In view of the fact that all the
appointments had been signed on March 11, 1998 - the day immediately before the commencement of
the ban on appointments imposed by Section 15, Article VII of the Constitution - which impliedly but
no less clearly indicated that the President's Office did not agree with the hypothesis that appointments
to the Judiciary were not covered by said ban, the Chief Justice resolved to defer consideration of
nominations for the vacancy in the Supreme Court created by the retirement of Associate Justice
Ricardo J. Francisco, specially considering that the Court had scheduled sessions in Baguio City in
April, 1998, that the legislature's representatives to the JBC were occupied with the forthcoming
elections, and that a member of the Council was going on a trip out of the country.
On May 4, 1998, the Chief Justice received a letter from the President, addressed to the JBC requesting
transmission of the "list of final nominees" for the vacancy "no later than Wednesday, May 6, 1998," in
view of the duty imposed on him by the Constitution "to fill up the vacancy *** within ninety (90) days
from February 13, 1998, the date the present vacancy occurred."
On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice for "guidance"
respecting the expressed desire of the "regular members" of the JBC to hold a meeting immediately to
fill up the vacancy in the Court in line with the President's letter of May 4. The Chief Justice advised

Secretary Bello to await the reply that he was drafting to the President's communication, a copy of
which he would give to the Secretary the following day.
On May 6, 1998 the Chief Justice sent his reply to the President. He began by stating that no sessions
had been scheduled for the Council after the May elections for the reason that apparently the
President's Office did not share the view posited by the JBC that Section 15, Article VII of the
Constitution had no application to JBC-recommended appointments - the appointments to the Court of
Appeals having been all uniformly dated March 11, 1998, before the commencement of the prohibition
in said provision - thus giving rise to the "need to undertake further study of the matter," prescinding
from "the desire to avoid any constitutional issue regarding the appointment to the mentioned vacancy"
and the further fact that "certain senior members of the Court of Appeals *** (had) asked the Council
to reopen the question of their exclusion on account of age from such (final) list." He closed with the
assurance that the JBC expected to deliberate on the nominations "forthwith upon the completion of the
coming elections." The letter was delivered to Malacaang at about 5 o'clock in the afternoon of May
6, 1998, and a copy given to the Office of Justice Secretary Bello shortly before that hour.
It would appear, however, that the Justice Secretary and the regular members of the Council had
already taken action without awaiting the Chief Justice's promised response to the President's letter of
May 4, 1998. On that day, May 6, 1998, they met at some undisclosed place, deliberated, and came to
an agreement on a resolution which they caused to be reduced to writing and thereafter signed. In that
two-page Resolution they drew attention to Section 4 (1), Article VIII of the Constitution (omitting any
mention of Section 15, Article VII) as well as to the President's letter of May 4 in which he
"emphatically requested that the required list of final nominee be submitted to him;" and pointing out
that the "Council would be remiss in its duties" should it fail to submit the nominations, closed with an
appeal that the Chief Justice convene the Council for the purpose "on May 7, 1998, at 2:00 o'clock in
the afternoon." This Resolution they transmitted to the Chief Justice together with their letter, also
dated May 6, in which they emphasized that "we are pressed for time" again drawing attention to
Section 4 (1). In Article VIII of the Constitution (and again omitting any reference to Section 15,
Article VII). They ended their letter with the following intriguing paragraph:
"Should the Chief Justice be not disposed to call for the meeting aforesaid, the undersigned members
constituting the majority will be constrained to convene the Council for the purpose of complying with
its Constitutional mandate."
It seems evident, as just intimated, that the resolution and the covering letter were deliberated on,
prepared and signed hours before delivery of the Chief Justice's letter to the President and the Justice
Secretary.
Since the Members of the Council appeared determined to hold a meeting regardless of the Chief
Justice's wishes, the latter convoked the Council to a meeting at 3 o'clock in the afternoon of May 7,
1998. Present at the meeting were Chief Justice, Secretary Bello, ex officio member and the regular
members of the Council; Justice Regino Hermosisima, Atty. Teresita Cruz Sison, Judge Cesar C.
Peralejo. Also present on the invitation of the Chief Justice, were Justices Hilario G. Davide, Jr.,
Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza,
Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The
Chief Justice reviewed the events leading to the session, and after discussion, the body agreed to give
the President time to answer the Chief Justice's letter of May 6, 1998.

On May 7, 1998, the Chief Justice received a letter from His Excellency the President in reply to his
letter of May 6 (which the President said had been "received early this morning"). The President
expressed the view that "the election-ban provision (Article VII, Sec. 15) *** applies only to executive
appointments or appointments in the executive branch of government," the whole article being "entitled
'EXECUTIVE DEPARTMENT.'" He also observed that further proof of his theory "is the fact that
appointments to the judiciary have special, specific provisions applicable to them" (citing Article VIII,
Sec. 4 [1] and Article VIII, Section 9. In view thereof, he "firmly and respectfully reiterate(d) *** (his)
request for the Judicial and Bar Council to transmit *** the final list of nominees for the lone Supreme
Court vacancy."
The Chief Justice replied to the letter the following day, May 8, 1998. Since the Chief Justice's letter
explains the issue quite plainly, it is here quoted in full.
"Thank you for your letter of May 7, 1998, responding to my own communication of May 6, 1998
which, I would like to say, reflects the collective sentiments of my colleagues in the Supreme Court.
Knowing how busy you are, I will deal straightaway with the points set out in your letter.
The dating of the latest appointments to the Court of Appeals was adverted to merely to explain how
we in the Court and the JBC came to have the impression that you did not share the view expressed in
the JBC minutes of March 9, 1998 'that there is no election ban with regard to the JBC appointments.'
Be this as it may, the Court feels that there is a serious question concerning the matter in light of the
seemingly inconsistent provisions of the Constitution. The first of these is Section 15, Article VII,
which reads:
'SEC. 15. Two months immediately before the next presidential elections and up to the end of his term,
a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety.'
The second is Section 4(1) of Article VIII which states:
'SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.
***. Any vacancy shall be filled within ninety days from the occurrence thereof.'
As you can see, Your Excellency, Section 15 of Article VII imposes a direct prohibition on the
President: he "shall not make appointments" within the period mentioned, and since there is no
specification of which appointments are proscribed, the same may be considered as applying to all
appointments of any kind and nature. This is the general rule then, the only exception being only as
regards "executive positions" as to which "temporary appointments" may be made within the
interdicted period "when continued vacancies therein will prejudice public service or endanger public
safety." As the exception makes reference only to "executive" positions, it would seem that "judicial"
positions are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the Supreme Court "shall
be filled within ninety days from the occurrence thereof." Unlike Section 15, Article VII, the duty of
filling the vacancy is not specifically imposed on the President; hence, it may be inferred that it is a
duty shared by the Judicial and Bar council and the President.

Now, in view of the general prohibition in the first-quoted provision, how is the requirement of filling
vacancies in the Court within ninety days to be construed? One interpretation that immediately
suggests itself is that Section 4(1), Article VIII is a general provision while Section 15, Article VII is a
particular one; that is to say, normally, when there are no presidential elections - which after all occur
only every six years - Section 4(1), Article VIII shall apply: vacancies in the Supreme Court shall be
filled within 90 days; but when (as now) there are presidential elections, the prohibition in Section 15,
Article VII comes into play: the President shall not make any appointments. The reason for said
prohibition, according to Fr. J. Bernas, S.J., an authority on Constitutional Law and himself a member
of the Constitutional Commission, is "(I)n order not to tie the hands of the incoming President through
midnight appointments." Another interpretation is that put forth in the Minutes of the JBC Meeting of
March 9, 1998.
I must emphasize that the validity of any appointment to the Supreme Court at this time hinges on the
correct interpretation of the foregoing sections of the Constitution. On account of the importance of the
question, I consulted the Court about it but, as I stated in my letter of May 6, 1998, "it declined to take
any position, since obviously there had not been enough time to deliberate on the same *** (although
it) did agree that further study was necessary ***."
Since the question has actually come up, and its importance cannot be gainsaid, and it is the Court that
is empowered under the Constitution to make an authoritative interpretation of its (provisions) or of
those of any other law. I believe that the Court may now perhaps consider the issue ripe for
determination and come to grips with it, to avoid any possible polemics concerning the matter.
However the Court resolves the issue, no serious prejudice will be done. Should the Court rule that the
President is indeed prohibited to make appointments in a presidential election year, then any
appointment attempted within the proscribed period would be void anyway. If the Court should
adjudge that the ban has no application to appointments to the Supreme Court, the JBC may submit
nominations and the President may make the appointment forthwith upon such adjudgment.
The matter is a delicate one, quite obviously, and must thus be dealt with with utmost circumspection,
to avoid any question regarding the validity of an appointment to the Court at this time, or any
accusation of "midnight" appointments or rash, hasty action on the part of the JBC or the President.
In view thereof, and upon the advice and consent of the Members of the Court, I am requesting the
regular Members of the Judicial and Bar Council to defer action on the matter until further advice by
the Court. I earnestly make the same request of you, Your Excellency, I assure you, however, that as
befits a matter in which the Chief Executive has evinced much interest, my colleagues and I will give it
preferential and expeditious attention and consideration. To this end, I intend to convene the Court by
next week, at the latest."
On May 8, 1998, again on the insistence of the regular Members of the JBC, another meeting was held
at which were present the Chief Justice, the Secretary of Justice and the three regular Members above
mentioned, as well as Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo,
Reynato S. Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente V. Mendoza, Artemio V. Panganiban,
Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The meeting closed with a
resolution that "the constitutional provisions *** (in question) be referred to the Supreme Court En
Banc for appropriate action, together with the request that the Supreme Court consider that the ninetyday period stated in Section 4 (1), Article VIII be suspended or interrupted in view of the peculiar
circumstances ***."

On May 12, 1998, the Chief Justice received from Malacaang the appointments of two (2) Judges of
the Regional Trial Court mentioned above. This places on the Chief Justice the obligation of acting
thereon; i.e., transmitting the appointments to the appointees so that they might take their oaths and
assume their duties of their office. The trouble is that in doing so, the Chief Justice runs the risk of
acting in a manner inconsistent with the Constitution, for these appointments appear prima facie, at
least, to be expressly prohibited by Section 15, Article VII of the charter. This circumstance, and the
referral of the constitutional question to the Court in virtue of the Resolution of May 8, 1998, supra,
operate to raise a justiciable issue before the Court, an issue of sufficient importance to warrant
consideration and adjudication on the merits.
Accordingly, the Court Resolved to (1) CONSIDER the case at bar an administrative matter and cause
it to be appropriately docketed; (2) to DIRECT the Clerk of Court to immediately serve copies of this
Resolution on (a) the Office of the President, (b) the Office of the Solicitor General, (c) Hon. Mateo A.
Valenzuela, and (d) Hon. Placido B. Vallarta (at their addresses recorded in the Judicial and Bar
Council); and (3) to REQUIRE the Office of the President, the Office of the Solicitor General, Hon.
Mateo A. Valenzuela, and Hon. Placido B. Vallarta to file their comments on this Resolution within
fifteen (15) days from notice thereof.
The Court further Resolved that (1) pending the foregoing proceedings and the deliberation by the
Court on the matter, and until further orders, no action be taken on the appointments of Hon.
Valenzuela and Hon. Vallarta which in the meantime shall be held in abeyance and not given any effect
and said appointees shall refrain from taking their oath of office; and that (2) exercising its power of
supervision over the Judicial and Bar Council, said Council and its ex officio and regular Members
herein mentioned be INSTRUCTED, as they are hereby INSTRUCTED, to defer all action on the
matter of nominations to fill up the lone vacancy in the Supreme Court or any other vacancy until
further orders.
SO ORDERED.
II

The Relevant Pleadings

In compliance with the foregoing Resolution, the following pleadings and other documents were filed,
to wit:
1)
the manifestation dated May 28, 1998 of Hon. Mateo A. Velenzuela in compliance with the
Resolution of May 14, 1998;
2)
the letter dated June 1, 1998 of Hon. Placido B. Vallarta in compliance with the same
Resolution;
3)

the "Comments" of Hon. Valenzuela dated May 25, 1998;

4)

his "Addendum to Comments" dated June 8, 1998;

5)

his "Explanation" dated June 8, 1998;

6)

the letter of Hon. Vallarta dated June 8, 1998;

7)

his letter dated June 16, 1998;

8)

the "Explanation" of Hon. Valenzuela dated July 17, 1998; and

9)

the "Comment" of the Office of the Solicitor General dated August 5, 1998.

A.

Valenzuela's Assumption of Duty as Judge on May 14, 1998

In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia:
"***that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62, Bago City, before
Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod City, pursuant to Appointment dated March
30, 1998, (and) he also reported for duty as such before said RTC Branch 62, Bago City *** (and that
he did so) "faultlessly," *** without knowledge of the on-going deliberations on the matter."
At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta, dated March 30,
1998 - addressed to them "Thru: the Chief Justice, Supreme Court of the Philippines, Manila." and
which had been sent to and received by the Chief Justice on May 12, 1998[2] -- were still in the latter's
Office, and had not been transmitted to them precisely because of the serious issue concerning the
validity of their appointments. Indeed, one of the directives in the Resolution of May 14, 1998 was that
"pending *** deliberation by the Court on the matter, and until further orders, no action be taken on the
appointments *** which in the meantime shall be held in abeyance and not given any effect ***." For
this reason, by Resolution dated June 23, 1998, the Court required Valenzuela to EXPLAIN by what
authority he had taken his oath on May 14, 1998 as Judge of Branch 62 of the RTC at Bago City. In
his "Explanation" dated July 17, 1998. Valenzuela stated that he did so because on May 7, 1998 he
"received from Malacaang copy of his appointment ***" which contained the following direction:
"By virtue hereof, you may qualify and enter upon the performance of the duties of the office***."
The Court then deliberated on the pleadings and documents above mentioned, in relation to the facts
and circumstances on record, and thereafter Resolved to promulgate the following opinion.
III

The Relevant Constitutional Provisions

The provision of the Constitution material to the inquiry at bar read as follows:[3]
Section 15, Article VII:
"Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to execute
positions when continued vacancies therein will prejudice public service or endanger public safety."
Section 4 (1), Article VIII:
"The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit
en banc or in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled
within ninety days from the occurrence thereof."

Section 9, Article VIII:

"The Members of the Supreme Court and judges in lower courts shall be appointed by the President
from the list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.
Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the submission
of the list."
IV

The Court's View

The Court's view is that during the period stated in Section 15, Article VII of the Constitution - "(t)wo
months immediately before the next presidential elections and up to the end of his term" - the President
is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and
9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the
time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the
prohibition on appointments comes into effect only once every six years.
V

Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the original
proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to
increase the number of Justices to fifteen. He also wished to ensure that that number would not be
reduced for any appreciable length of time (even only temporarily), and to this end proposed that any
vacancy "must be filled within two months from the date that the vacancy occurs." His proposal to
have a 15-member Court was not initially adopted. Persisting however in his desire to make certain
that the size of the Court would not be decreased for any substantial period as a result of vacancies,
Lerum proposed the insertion in the provision (anent the Court's membership) of the same mandate that
"IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS
FROM OCCURRENCE THEREOF." He later agreed to suggestions to make the period three, instead
of two, months. As thus amended, the proposal was approved.[4] As it turned out, however, the
Commission ultimately agreed on a fifteen-member Court.[5] Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up any vacancy therein within 90
days from its occurrence.
In this connection, it may be pointed out that that instruction that any "vacancy shall be filled within
ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in
Section 15, Article VII, which is couched in stronger negative language - that "a President or Acting
President shall not make appointments"
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of
this Court) to add to what is now Section 9 of Article VIII, the following paragraph: "WITH
RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT
WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of nominees by the Judicial
and Bar Council to the President).[6] Davide stated that his purpose was to provide a "uniform rule"
for lower courts. According to him, the 90-day period should be counted from submission of the list of
nominees to the President in view of the possibility that the President might reject the list submitted to
him and the JBC thus need more time to submit a new one.[7]

On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing
power "two months immediately before the next presidential elections up to the end of his term" - was
approved without discussion.
VI.

Analysis of Provisions

Now, it appears that Section 15, Article VII is directed against two types of appointments: (1) those
made for buying votes and (2) those made for partisan considerations. The first refers to those
appointments made within the two months preceding a Presidential election and are similar to those
which are declared election offenses in the Omnibus Election Code, viz.:[8]
SEC. 261. Prohibited Acts. - The following shall be guilty of an election offense:
(a) Vote buying and vote selling - (1) Any person who gives, offers or promises money or anything of
value, gives or promises any office or employment, franchise or grant, public or private, or makes or
offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person,
association, corporation, entity, or community in order to induce anyone or the public in general to
vote for or against any candidate or withhold his vote in the election, or to vote for or against any
aspirant for the nomination of choice of a candidate in a convention or similar selection process of a
political party.
.
(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. During the period of forty five days before a regular election and thirty days before a special election,
(1) any head, official or appointing officer of a government office, agency or instrumentality whether
national or local, including government-owned or controlled corporations, who appoints or hires any
new employee, whether provisional, temporary, or casual, or creates and fills any new position, except
upon prior authority of the Commission. The Commission shall not grant the authority sought unless,
it is satisfied that the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the election.
The second type of appointments prohibited by Section 15, Article VII consists of the so-called
"midnight" appointments. In Aytona v. Castillo,[9] it was held that after the proclamation of Diosdado
Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for
reelection, became no more than a "caretaker" administrator whose duty was to "prepare for the orderly
transfer of authority to the incoming President." Said the Court:
"The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance
of deliberate action and careful consideration of the need for the appointment and appointee's
qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and
the planned induction of almost all of them in a few hours before the inauguration of the new President
may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps
taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new administration of an opportunity to make the corresponding
appointments."

As indicated, the Court recognized that there may well be appointments to important positions which
have to be made even after the proclamation of the new President. Such appointments, so long as they
are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the
need for the appointment and the appointee's qualifications,"[10] can be made by the outgoing
President. Accordingly, several appointments made by President Garcia, which were shown to have
been well considered, were upheld.[11]
Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed
to contemplate not only "midnight" appointments - those made obviously for partisan reasons as shown
by their number and the time of their making - but also appointments presumed made for the purpose of
influencing the outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII - allowing appointments to be
made during the period of the ban therein provided - is much narrower than that recognized in Aytona.
The exception allows only the making of temporary appointments to executive positions when
continued vacancies will prejudice public service or endanger public safety. Obviously, the article
greatly restricts the appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the President's power of appointment, it is this Court's view that, as a general proposition,
in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and
similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition
of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier
pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts
can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent
in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that
reason, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail
over Section 15 of Article VII, because they may be considered later expressions of the people when
they adopted the Constitution, it suffices to point out that the Constitution must be construed in its
entirety as one, single, instrument.
To be sure, instances may be conceived of the imperative need for an appointment, during the period of
the ban, not only in the executive but also in the Supreme Court. This may be the case should the
membership of the court be so reduced that it will have no quorum or should the voting on a
particularly important question requiring expeditious resolution be evenly divided. Such a case,
however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.[12]
VII.

A Last Word

A final word, concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge of RTC
Branch 62, Bago City, on May 14, 1998.[13] Standing practice is for the originals of all appointments
to the Judiciary - from the highest to the lowest courts - to be sent by the Office of the President to the
Office of the Chief Justice, the appointments being addressed to the appointees "Thru: the Chief
Justice, Supreme Court, Manila." It is a Clerk of Court of the Supreme Court, in the Chief Justice's
behalf, who thereafter advises the individual appointees of their appointments and also of the date of
commencement of the pre-requisite orientation seminar, to be conducted by the Philippine Judicial

Academy for new Judges. The rationale of this procedure is salutary and readily perceived. The
procedure ensures the authenticity of the appointments, enables the Court, particularly of the Office of
the Court Administrator, to enter in the appropriate records all appointments to the Judiciary as well as
other relevant data such as the dates of qualification, the completion by the appointees of their prerequisite orientation seminars, their assumption of duty, etc.
The procedure also precludes the possibility, however remote, of Judges acting on spurious or
otherwise defective appointments. It is obviously not advisable, to say the least, for a Judge to take his
oath of office and enter upon the performance of his duties on the basis alone of a document purporting
to be a copy of his appointment coming from Malacaang, the authenticity of which has not been
verified from the latter of the Office of the Court Administrator; or otherwise to begin performing his
duties as Judge without the Court Administrator knowing of that fact. The undesirability of such a
situation is illustrated by the case of Judge Valenzuela who acted, with no little impatience or rashness,
on a mere copy of his supposed appointment, without having received any formal notice from this
Court, and without verifying the authenticity of the appointment or the propriety of taking oath on the
basis thereof. Had he bothered to inquire about his appointment from the Court Administrator's Office,
he would have been informed of the question concerning it and the Court's injunction.
VIII.

Conclusion

The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the Office of
the Chief Justice on May 14, 1998) were unquestionably made during the period of the ban.
Consequently, they come within the operation of the first prohibition relating to appointments which
are considered to be for the purpose of buying votes or influencing the election. While the filling of
vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any
compelling reason to justify the making of the appointments during the period of the ban. On the other
hand, as already discussed, there is a strong public policy for the prohibition against appointments
made within the period of the ban.
In view of the foregoing considerations, the Court Resolved to DECLARE VOID the appointments
signed by His Excellency the President under date of March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch
24, Cabanatuan City, respectively, and to order them, forthwith on being served with notice of this
decision, to forthwith CEASE AND DESIST from discharging the office of Judge of the Courts to
which they were respectively appointed on March 30, 1998. This, without prejudice to their being
considered anew by the Judicial and Bar Council for re-nomination to the same positions.
IT IS SO ORDERED.

EN BANC

G.R. No. 102948 February 2, 1994

JAIME T. PANIS, Petitioner, vs. CIVIL SERVICE COMMISSION and BELLA V. VELOSO,
Respondent.
QUIASON, J.:

chanrobles virtual law library

This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section 7 of
Article IX (A) of the Constitution, to nullify Resolution No. 90-1047 dated November 22, 1990 and
Resolution No. 91-1100 dated September 24, 1991, of the Civil Service Commission. The first
Resolution dismissed petitioner's appeal from the decision of the Regional Office of the Civil Service
Commission, and at the same time, upheld the appointment of respondent Bella V. Veloso to the
position of Assistant Chief of Hospital for Administration of the Cebu City Medical Center (CCMC).
The second Resolution denied the motion for reconsideration of the decision.
I.

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The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local
government of Cebu City. Petitioner was employed as Administrative Officer of the Hospital, while
private respondent was Administrative Officer of the City Health Department detailed at the said
hospital.
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On November 9, 1987, the Mayor of Cebu City appointed private respondent to the position of
Assistant Chief of Hospital for Administration of CCMC. Petitioner, a candidate for the said position,
promptly protested the appointment before the Regional Office of the Civil Service Commission
(CSC). The CSC Regional Office, however, indorsed the matter to the Office of the City Mayor, which
in turn referred it to the Office of the City Attorney.
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In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor, dismissed
petitioner's protest and upheld the appointment of private respondent. This dismissal was affirmed by
the CSC Regional Office and later on appeal, by respondent CSC. Hence, the present petition.
II.

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Petitioner contends that the appointment of private respondent was made in violation of law, existing
civil service rules and established jurisprudence because (1) the position of Assistant Chief of Hospital
for Administration was not legally created; (2) assuming that it was, there was no qualification standard
nor valid screening procedure; and (3) the seniority and next-in-rank rules were disregarded.
III.
The petition is not impressed with merit.

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Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June 17, 1986, amended the
charter of the Cebu City Hospital for the purpose of correcting the deficiencies and improving the
performance of said institution. The hospital's name was changed to CCMC, and the departments and
offices therein were reorganized. The Office of Hospital Administrator was created and granted such
powers as were deemed in line with the objectives of the Ordinance.
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On March 6, 1987, the City Mayor appointed private respondent to the position of Hospital
Administrator. This appointment was, however, not acted upon by the CSC but returned to the
appointing authority on October 21, 1987 for lack of the screening requirement. On even date, the City
Mayor withdrew private respondent's appointment. The title of Hospital Administrator was later found
to be a misnomer and thus was properly classified by the Joint Commission on Local Government
Personnel Administration as one of Assistant Chief of Hospital for Administration. This classification
was subsequently approved by the Department of Budget Management.
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The position of Assistant Chief of Hospital for Administration is the very same position of Hospital
Administrator created by Ordinance No. 1216. The Office of Hospital Administrator was not
extinguished, but the designation thereof merely corrected to reflect the proper classification of the
position under existing rules (Rollo, pp. 78-80). The Office of Assistant Chief of Hospital for
Administration therefore was created and existed in accordance with law.
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As a result of the reclassification, candidates to the position, among whom were petitioner and private
respondent, were notified by the Personnel Selection Board (Board) of the screening scheduled on
October 22, 1987. The notice sent petitioner at 9:30 A.M. may have been "too close for comfort to the
10:00 schedule," but the screening was actually reset to the following day, October 23, 1987. Petitioner
however never appeared before the Board. Neither did he appear, despite due notice, at the final
selection process on November 5, 1987.
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The fact that private respondent was actually screened and interviewed by the Board does not mean that
her appointment was a fait accompli. The screening was just a stage in the appointment process.
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Private respondent and petitioner are college degree holders with three units in Public Administration
and three years experience in Hospital Administration or Health Administration. Indeed, both
candidates possess the minimum qualifications for the position. The determination, however, who
among the qualified candidates should be preferred belongs to the appointing authority. The Mayor of
Cebu City, in the instant case, chose to appoint private respondent.
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The argument that petitioner should have been the one appointed because he was next in rank to the
contested position and that he had been with CCMC since 1961 as compared to private respondent,
who joined the hospital in 1986 and only on detail, cannot be upheld.
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It is ironic that petitioner is personally interested in the subject position, the creation and validity of
which he himself originally questioned. Be that as it may, the "next in rank" rule specifically applies
only in cases of promotion (Medenilla v. Civil Service Commission, 194 SCRA 278 [1991]; Pineda v.
Claudio, 28 SCRA 34 [1969]). The instant controversy, however, involves a new office and a position
created in the course of a valid reorganization. Under the law, a vacancy not filled by promotion may
be filled by transfer of present employees in the government service, by reinstatement, by
reemployment of those separated from the service, and appointment of outsiders who have appropriate
civil service eligibility, but not necessarily in this order (P.D. 807 Art. VIII, Sec. 19 (5); E.O. 292, Bk.
V, Sec. 21 (5); Espaol v. Civil Service Commission, 206 SCRA 715 [1992]; Medenilla v. Civil
Service Commission, supra., at 289-290).
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It cannot be said that private respondent was an outsider. Although directly employed by the City
Health Department, she actually worked at the CCMC prior to her appointment to the subject position.
Besides, even, if she was an outsider, the law does not prohibit the employment of persons from the

private sector so long as they have the appropriate civil service eligibility.

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Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the
concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the
person occupying the next lower position in the occupational group of the office. What the Civil
Service Law and the Administrative Code of 1987 provide is that if a vacancy is filled up by the
promotion, the person holding the position next in rank thereto "shall be considered for promotion"
(P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3); Espaol v. Civil Service Commission, supra;
Barrozo v. Civil Service Commission, 198 SCRA 487 [1991]). In other words, one who is "next in
rank" to a vacancy is given preferential consideration for promotion to the vacant position, but it does
nor necessarily follow that he alone and no one else can be appointed. There is no vested right granted
the next in rank nor a ministerial duty imposed on the appointing authority to promote the holder to the
vacant position (Barrozo v. Civil Service Commission, supra; Santiago, Jr. v. Civil Service
Commission, 178 SCRA 733 [1989]).
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An appointment, whether to a vacancy or to a newly created position, is essentially within the

discretionary power of whomsoever it is vested. Once a candidate possesses the minimum qualities
required by law, sufficient discretion, if not plenary, is granted to the appointing authority (Medenilla
v. Civil Service Commission, supra, at 291; Central Bank v. Civil Service Commission, 171 SCRA
744 [1989]). After all, the appointing authority is the officer primarily responsible for the
administration of the office, and is likewise in the best position to determine who among the qualified
candidates can efficiently discharge the functions of the position (Villegas v. Subido, 30 SCRA 498
[1969]); Reyes v. Abeleda, 22 SCRA 825 [1968]). Indeed, whom to appoint among those qualified is
an administrative question involving considerations of wisdom for the best interest of the service which
only the appointing authority can decide (Simpao v. Civil Service Commission, 191 SCRA 396 [1990];
Luego v. Civil Service Commission, 143 SCRA 327 [1986]).
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It is markworthy that private respondent was detailed at the CCMC primarily to help in upgrading the
level of performance of the said hospital. She accomplished this mission by institutionalizing changes
in the management and financial reporting system of the hospital such that its income doubled in less
than two years since her detail. Private respondent's competence and her remarkable achievement are
things the appointing authority took notice of and which served as basis for her appointment to the
contested position.
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Finally, the moral character and honesty of private respondent are issues that should be threshed out in
an appropriate action before the proper forum. As it stands, private respondent is presumed innocent
and her acts done in good faith, until proven otherwise.
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WHEREFORE, finding no grave abuse of discretion on the part of the public respondent, the Court
resolved to DISMISS the petition for lack of merit.
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SO ORDERED.

EN BANC

[G.R. No. 126183. March 25, 1999]

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ,
ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO, and EMERITA PIZARRO,
petitioners vs., COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF
THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

[G.R. No. 129221. March 25, 1999]

ROLANDO ALURA, CLARA ALVAREZ, PORFIRIO AUSTRIA, VICENTE CARRANZA, ELMER
DALIDA, ROSALINDA DALIDA, NELSON DULDULAO, LEA POCONG, ENRICO
REYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO
ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA BANUA, CAROLINA BULACLAC,
DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILLA CASTILLO,
ANACLETA CORRALES, GLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL
ROSARIO, MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA, LUZVIMINDA
ESPINO, VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA
GARCELINA, CORAZON GONZALES, VIOLETA GUANIZO, SURENA GUNDRAN, HILARIA
HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESITA
LAURENTE, CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA
MAGALLANES, NEDA MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA
NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA NON, ESTELA
PALILEO, ANA PALMA, GLICERIA PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA,
LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR,
CATHERINE SAN AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE,
GINA TIMBAS, BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE VEDEJA,
RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ,
ENRICO PILANDE, JOSEPHINE PARMISANO, FELIPE ALACAR, JOSE FETALVERO, JR.,
MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA CLEMENCIA,
petitioners, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF
EDUCATION CULTURE AND SPORTS, respondents.
DECISION
BELLOSILLO, J.:
These consolidated petitions[1] are among several petitions filed with this Court arising from the muchpublicized public school teachers' mass actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila who were simultaneously
charged, preventively suspended, and eventually dismissed in October 1990 by then Secretary Isidro D.
Cariio of the Department of Education, Culture and Sports (DECS), in decisions issued by him which
uniformly read -

This is a motu-propio administrative complaint separately filed by the Secretary of Education, Culture
and Sports against the following public school teachers x x x x based on the report submitted by their
respective school principals wherein it was alleged that the above-named teachers participated in the
mass action/illegal strike on Sept. 19-21, 1990 and subsequently defied the return-to-work order dated
September 17, 1990 issued by this Office, which acts constitute grave misconduct, gross neglect of
duty, gross violation of Civil Service Law, Rules and Regulations and reasonable office regulations,
refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the
service and absence without official leave (AWOL), in violation of Presidential Decree 807, otherwise
known as the Civil Service Decree of the Philippines.
Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of
the complaint, respondents failed to submit the required answer within the given time up to the present,
and despite the denial of their request for extension of 30 days within which to submit their answers
dated September 25, 1990 filed by their counsel, Atty. Gregorio Fabros, in a letter of this Office to him
dated September 28, 1990, respondents failed to submit the same, which failure, is considered a waiver
on their part of their right to answer the charges and to controvert the same.
Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged.
In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines
in the Application of Penalty in Administrative Cases, the herein respondents are dismissed from
Office effective immediately.
The decisions dismissing petitioners were immediately implemented.
Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service
Commission (CSC). In 1993 the CSC found petitioners guilty of conduct prejudicial to the best
interest of the service" for having participated in the mass actions and imposed upon them the reduced
penalty of six (6) months' suspension. However, in view of the length of time that petitioners had been
out of the service by reason of the immediate implementation of the dismissal orders of Secretary
Cario, the CSC likewise ordered petitioners' automatic reinstatement in the service without back
wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this
Court, docketed as G.R. Nos. 111998,[2] 114435-5506,[3] and 116312-19,[4] which were all referred
to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95,[5] and there re-docketed
as CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014,
respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals[6] rendered a joint decision
in CA-G.R. SP Nos. 37619-20 dismissing the petitions for lack of merit.[7] The appellate court ruled
that the questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct
prejudicial to the best interest of the service were based on reasonable and justifiable grounds; that
petitioners' perceived grievances were no excuse for them not to conduct classes and defy the return-towork order issued by their superiors; that the immediate execution of the dismissal orders of Secretary
Cario was sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 292) as well
as Sec. 37, par. (b), Art. IX of PD No. 807,[8] and Sec. 32, Rule XIV of the Omnibus Rules
Implementing Book V of E.0. No. 292. Their motion for reconsideration having been denied on 15 May

1997,[9] petitioners then appealed by certiorari to this Court on 26 June 1997, docketed as G.R. No.
129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals[10] rendered a joint decision
in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack of merit.[11]
The appellate court rejected petitioners' contention that they should not have been penalized for
participating in the September/October 1990 mass actions because they were merely exercising their
constitutional right to free assembly. In so ruling the Court of Appeals cited Manila Public School
Teachers Association v. Laguio, Jr.[12] wherein this Court ruled that the public school teachers' mass
actions of September/October 1990 were "to all intents and purposes a strike x x x constitut[ing] a
concealed and unauthorized stoppage of, or absence from, work which it was the teachers' duty to
perform, undertaken for essentially economic reasons." Petitioners' contention that Secretary Cario's
decision to dismiss them was not supported by evidence was likewise rejected in view of petitioners'
admissions and/or failure to refute the factual finding that petitioners actually joined the mass actions
based on the report of absences submitted by their respective school principals. Their motion for
reconsideration having been denied in the resolution of 20 August 1996,[13] petitioners then filed a
petition for review on certiorari with this Court on 1 October 1996, docketed as G.R. No, 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos.
126183 and 129221 involving as they did common questions of fact and law.
Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding
them guilty of conduct prejudicial to the best interest of the service when their only "offense" was to
exercise their constitutional right to peaceably assemble and petition the government for redress of their
grievances. Moreover petitioners insist that the mass actions of September/October 1990 were not
"strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in
the alternative, award of back wages for the period of three (3) years when they were not allowed to
work while awaiting resolution of their appeals by the MSPB and CSC, deducting the period of six (6)
months' suspension eventually meted them.
The petitions must be denied in view of previous rulings of this Court already settling all the issues
raised by petitioners. It is a very desirable and necessary judicial practice that when a court has laid
down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply
it to all future cases where the facts are substantially the same.[14] Stare decisis et non quieta movere.
Stand by the decisions and disturb not what is settled.[15]
As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public
School Teachers Association v. Laguio Jr.[16] and Alliance of Concerned Teachers v. Hon. Isidro
Cario[17] that the mass actions of September/October 1990 staged by Metro Manila public school
teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and
unauthorized stoppage of or absence from work which it was said teachers' sworn duty to perform,
carried out for essentially economic reasons -- to protest and pressure the Government to correct
what, among other grievances, the strikers perceived to be the unjust or prejudicial implementation of
the salary standardization law insofar as they were concerned, the non-payment or delay in payment of
various fringe benefits and allowances to which they were entitled, and the imposition of additional
teaching loads and longer teaching hours." In Rolando Gan v. Civil Service Commission,[18] we
denied the claim that the teachers were thereby denied their rights to peaceably assemble and petition
the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any

other liberty, must be exercised within reasonable limits so as not to prejudice the public welfare. But
the public school teachers in the case of the 1990 mass actions did not exercise their constitutional
rights within reasonable limits. On the contrary, they committed acts prejudicial to the best interest of
the service by staging the mass protests on regular school days, abandoning their classes and refusing
to go back even after they had been ordered to do so. Had the teachers availed of their free time recess, after classes, weekends or holidays - to dramatize their grievances and to dialogue with the
proper authorities within the bounds of law, no one - not the DECS, the CSC or even the Supreme
Court - could have held them liable for their participation in the mass actions.[19]
With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co., Inc.,[20]
invoked by petitioners, we have likewise already ruled in the Rolando Gan case[21] that the PBM
ruling - that the rights of free expression and assembly could not be lightly disregarded as they occupy
a preferred position in the hierarchy of civil liberties - was not applicable to defend the validity of the
1990 mass actions because what were pitted therein against the rights of free expression and of
assembly were inferior property rights while the higher consideration involved in the case of the
striking teachers was the education of the youth which must, at the very least, be equated with the
freedom of assembly and to petition the government for redress of grievances.[22]
We affirmed the foregoing rulings in Bagana v. Court of Appeals[23] by denying a similar petition
filed by another group of teachers who participated in the 1990 mass actions but who claimed to have
been merely exercising their constitutional right to free assembly. We held in Bagana that the Court of
Appeals committed no reversible error in affirming the CSC resolutions finding the teachers guilty of
conduct prejudicial to the best interest of the service and imposing penalties of six (6) months'
suspension without pay. In Bangalisan v. Court of Appeals[24] we added that the persistent refusal of
the striking teachers to call the mass actions by the conventional term "strike" did not erase the true
nature of the mass actions as unauthorized stoppages of work the purpose of which was to obtain a
favorable response to the teachers' economic grievances. We again stressed that the teachers were
penalized not because they exercised their right to peaceably assemble but because of the manner by
which such right was exercised, i.e., going on unauthorized and unilateral absences thus disrupting
classes in various schools in Metro Manila which produced adverse effects upon the students for whose
education the teachers were responsible. But herein petitioners contend that classes were not actually
disrupted because substitute teachers were immediately appointed by Secretary Cario. Besides being
a purely factual assertion which this Court cannot take cognizance of in a petition for review, the fact
that the prompt remedial action taken by Secretary Cario might have partially deflected the adverse
effects of the mass protests did not erase the administrative liability of petitioners for the intended
consequences thereof which were the very reason why such prompt remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC
resolutions finding petitioners guilty of conduct prejudicial to the best interest of the service.
As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be
awarded back wages for the period when they were not allowed to work by reason of the supposed
unjustified immediate implementation of the dismissal orders of Secretary Cario while awaiting
resolution of their appeals by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the
dismissal orders of Secretary Cario were commuted by the CSC to six (6) months' suspension is
already settled.

In Bangalisan v. Court of Appeals[25] we resolved the issue in the negative on the ground that the
teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the
grant of back wages in administrative disciplinary cases. Like herein petitioners, those in Bangalisan
were also teachers who participated in the 1990 mass actions for which they were dismissed by
Secretary Cario but ordered merely suspended for six (6) months by the Civil Service Commission.
On a plea that the immediate implementation of the dismissal orders of Secretary Cario was
unjustified, thus warranting an award of back wages the Court said As to the immediate execution of the decision of the Secretary against petitioners, the same is
authorized by Section 47, paragraph (2), of Executive Order No. 292, thus: "The Secretaries and heads
of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action against officers and employees under their
jurisdiction. Their decision shall be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a
bureau or office is appealable to the Commission, the same shall be executory except when the penalty
is removal, in which case the same shall be executory only after confirmation by the Secretary
concerned.
And since it was already the final dismissal orders of Secretary Cario which were being carried out,
immediate implementation even pending appeal was clearly sanctioned by the aforequoted provision of
the Administrative Code of 1987.[26] Hence, being legal, the immediate execution of the dismissal
orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of
Baguio[27] and Bautista v. Peralta[28] being cases which involved the unjustified immediate
execution of the dismissal orders of the then Civil Service Commissioner pending appeal to the Civil
Service Board of Appeals are therefore not applicable to justify petitioners' prayer. Neither could
petitioners be considered to have been exonerated from the charges levelled against them by Secretary
Cario from the mere fact that they were found guilty only of conduct prejudicial to the best interest of
the service by the CSC. It must be remembered that Secretary Cario charged petitioners with grave
misconduct, gross neglect of duty, gross violation of civil service law, rules and regulations, etc., for
having participated in the 1990 illegal mass actions. On appeal the CSC while affirming the factual
finding that petitioners indeed participated in the mass actions found them liable only for conduct
prejudicial to the best interest of the service. Clearly the CSC decision did not proceed from a finding
that petitioners did not commit the acts complained of. Having been found to have actually participated
in the illegal mass actions although found answerable for a lesser offense, petitioners could not be
considered as fully innocent of the charges against them.[29] Being found liable for a lesser offense is
not equivalent to exoneration.[30]
Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have
actually participated in the 1990 mass actions but granted the claim of one Rodolfo Mariano who was
absent only because he attended the wake and interment of his grandmother. In Jacinto v. Court of
Appeals[31] we again denied the claim for back wages of teachers found to have given cause for their
suspension, i.e., their unjustified abandonment of classes to the prejudice of their students but granted
the claim of Merlinda Jacinto who was absent because of illness.
Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus
having given cause for their supension, their prayer for back wages must be denied conformably with

settled rulings of this Court.

WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated
29 November 1995 and 24 April 1996 are AFFIRMED. No costs.
SO ORDERED.
EN BANC

G.R. No. 110276 July 29, 1994

ORLANDO G. UMOSO, Petitioner, vs. HON. CIVIL SERVICE COMMISSION and SEVERINO
G. CARONAN, Respondents.
MENDOZA, J.:
This is a petition for certiorari to set aside the Resolution 1of respondent Civil Service Commission
(CSC), dismissing petitioner Orlando Umoso's appeal from the decision of the Merit System Protection
Board 2, upholding the appointment of private respondent Severino Caronan as Supervising Civil
Engineer I by the Secretary of the Department of Public Works and Highways.
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Petitioner is a Senior Civil Engineer who was promoted to the position of Supervising Civil Engineer I
in the office of the District Engineer, Cagayan South Engineering District, of the Department of Public
Works and Highways (DPWH) by the Regional Director, DPWH Regional Office No. 2, Tuguegarao,
Cagayan. 3
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Private respondent Severino G. Caronan, Senior Civil Engineer in the Design and Planning section of
the Cagayan South Engineering District, protested the appointment in a letter 4addressed to the
Regional Director of the DPWH, in which he complained that the candidates for promotion had not
been fairly evaluated by the DPWH Central Review Board as their direct supervisors were never
consulted. Private respondent claimed that he was entitled to preferential consideration, being the
employee next in rank in the Planning and Design Section where the contested position belongs.
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The letter/protest of private respondent was referred to the complaints committee of the DPWH which,
on May 7, 1990, issued a Memorandum 5for the DPWH Department Secretary, recommending that
Caronan's protest be upheld and petitioner Umoso be appointed to the position of Senior Civil Engineer
to be vacated by the respondent Caronan.
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The Secretary of DPWH approved the recommendation. Petitioner moved for a reconsideration but his
motion was denied in a resolution dated October 5, 1990. Petitioner then appealed to the Merit System
Protection Board (MSPB) of the Civil Service. He alleged that the complaints committee of the DPWH
erred in (1) its interpretation of the next-in-rank principle, in considering protestant/private respondent
as more senior than the protestee/petitioner in the service and (2) in failing to give due consideration to
the recommendation of the District Engineer's placement and evaluation committee.
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The MSPB made a comparative study of the qualifications of Umoso and Caronan, on the basis of
which it rendered a decision on June 28, 1991, 7dismissing the appeal of petitioner Umoso for lack of
merit. In its decision it stated:
Considering, therefore, that Caronan is the choice of the Secretary, DPWH, having taken cognizance of
Caronan's nine (9) years of direct exposure/experience in the Planning and Design Section where the
contested position is located, the appointment of Caronan as Supervising Civil Engineer I must be
upheld. 8
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Petitioner Umoso moved a second time for reconsideration of the MSPB decision. He alleged that the
appointing authority in the regional sector is lodged in the Regional Director and not in the Department
Head/Secretary; therefore his appointment by the Regional Director should be upheld.
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On January 31, 1992, the MSPB denied petitioner's motion for lack of merit and sustained the
appointment of private respondent Caronan to the position of Supervising District Engineer. It held that
the Secretary has administrative supervision and control over the entire department including the power
to review appointments issued by the DPWH Regional Director. 9
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Petitioner Umoso then appealed 10to the Civil Service Commission (CSC), raising as sole issue whether
or not the DPWH Secretary has the authority to set aside an appointment made by the Regional
Director of an appointee who meets the qualifications required by the position.
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In its Resolution No. 93-748 11dated February 26, 1993, the CSC ruled that the Secretary of Public
Works and Highways has ultimate power to appoint:
The power of the Secretary to appoint can however be delegated to the Regional Directors. The
authority of the Regional Director to appoint is merely a delegated function. As such, the action of the
Regional Director can be reviewed and set aside by the Secretary who is the source of the delegated
power. To hold the view that the Secretary has no authority to review the appointment issued by a
Regional Director to second level position in a Department would create a false impression that the
Secretary and the Regional Director are of the same rank.
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Thus, when Caronan protested the appointment of Umoso to the position of SCE I issued by the
Regional Director and the DPWH Secretary gave due course to the protest by ordering the appointment
of protestant Caronan in lieu of Umoso, the Secretary of DPWH is merely exercising his power and
authority as Head of the Department. Inherent in his position is the power, among others, of
administrative control and supervision over the personnel thereat including appointment. Contrary to
the allegation of Umoso, the approval of his appointment to the said position has not reached a
semblance of finality which may vest in him the right to a security of tenure, in view of the timely
protest of Caronan.
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As protestant Caronan, who is the choice of the Secretary of DPWH, clearly meets the requirements for
permanent appointment to the contested position, his appointment to said contested position should not
be disturbed. This is in line with a number of Supreme Court decisions upholding the discretion of the
appointing authority on matters of appointment. 12
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Petitioner alleges grave abuse of discretion on the part of the Civil Service Commission. He claims that
he is qualified and that he is the "next-in-rank." Above all he contends that in fact his appointment was

endorsed by the Selection and Placement Committee and the Central Review Board, whose
recommendations were approved by the Regional Director.
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We find this petition without merit.

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First of all, it has been declared time and again that even if petitioner occupies a "next-in-rank"
position, that fact alone does not impose on the appointing authority the duty to appoint petitioner. 13

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While preferential consideration is accorded the "next-in-rank" employee in the event of a vacancy for
a higher position, such consideration does not serve to ensure appointment in his favor. The rule neither
grants a vested right to the holder nor imposes a ministerial duty on the part of the appointing authority
to promote such person to the next higher position. 14
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Secondly, the appointing power is vested in the Department Head/Secretary. Such power, however,
may be delegated to the regional director subject, however, to the approval, revision, modification and
reversal of the Department Secretary. 15Thus, even if petitioner was recommended to the contested
position by the Selection and Placement Committee and the Central Review Board, which
recommendations were upheld by the Regional Director, such recommendation was nonetheless subject
to review and approval by the Department Secretary. Indeed, the DPWH Review Board, pursuant to the
Reorganization Guidelines, prepared a manning list of recommendees for the positions in the Regional
Offices of Region II and had to submit the list to the DPWH Secretary for approval. 16In the analogous
case of Ernesto Perez v. Merit System Protection Board, 17this Court stated:
The determination of the DPWH Regional Office in Sorsogon that petitioner was qualified for the
contested position did not preclude the Committee from overturning the same. The determinations of
both bodies as delegates of the DPWH Secretary in the matter of personnel actions are tentative in
nature. It is the Secretary's adoption of the Committee's endorsement in favor of private respondent
which constituted the authoritative determination or choice of the employee who will occupy the
contested position.
The rule in the civil service is that appointment, which is essentially within the discretionary power of
whosoever it is vested, is subject only to the condition that the appointee should possess the
qualifications required by law. In the case at bar, the Qualifications Standards of the DPWH prescribes
the following minimum requirements for the contested position (Supervising Civil Engineer I) 18, to
wit:
EDUCATION - Bachelor's degree in Civil Engineering
EXPERIENCE - One (1) year of responsible experience
in professional civil engineering work
ELIGIBILITY - R.A. 1080 (Civil Engineer)
Based on these qualifications, the MSPB, in its decision, prepared a comparative study of the
qualifications of the contestants Umoso and Caronan, showing the following:
EDUCATION:

Appellant Umoso is a Bachelor of Science in Civil Engineering graduate, while protestee Caronan is
Bachelor of Science in Civil Engineering graduate with 24 units leading to Master in Public
Administration (MPA).
ELIGIBILITY:
Appellant Umoso possesses R.A. 1080 (Civil Engineer) eligibility. Appellee Caronan has R.A. 1080
(Civil Engineer) eligibility.
EXPERIENCE:
Appellant Umoso has been in the government service for eighteen (18) years, holding these positions
for specified periods, to wit: Laborer (3/16/66-12/31/66), Survey Aide (1/1/67-2/15/70) at the National
Irrigation Administration, Civil Engineer Aide I (9/16/74-6/30/75), Civil Engineer II (7/1/75-12/31/75),
Construction Foreman (1/1/76-11/30/78), Associate Civil Engineer (12/1/78-12/31/80), Civil Engineer
(1/1/81-9/30/82), and Senior Civil Engineer (10/1/82-1/1/89) at the DPWH.
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Appellee Caronan, on the other hand, has been in the government service for ten (10) years during
which period he held the following positions in the DPWH: Associate Civil Engineer (6/8/78-1/7/79),
Civil Engineer (1/8/79-1/15/80) and Senior Civil Engineer (1/16/80-present). 19
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It is evident that both aspirants sufficiently meet the qualification requirements for permanent
appointment to the contested position. However, since between Caronan and Umoso the former was
chosen by the Department Secretary of the DPWH, the Civil Service Commission has no alternative
but to attest to the appointment in accordance with the Civil Service Law. The Commission, under P.D.
No. 807, may only approve or disapprove the appointment after determining whether or not the
appointee possesses the appropriate Civil Service eligibility and the required qualifications. 20The
Commission has no authority to revoke an appointment on the ground that another person is more
qualified for a particular position. 21Correctly then did the CSC, in dismissing the appeal of petitioner
Umoso, hold:
As protestant Caronan, who is the choice of the Secretary of DPWH, clearly meets the requirements for
permanent appointment to the contested position should not be disturbed. This is in line with a number
of Supreme Court decisions upholding the discretion of the appointing authority on matters of
appointment. 22
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WHEREFORE, the petition for certiorari is hereby DISMISSED for lack of merit. The resolution
issued by the Civil Service Commission dated February 26, 1993 is AFFIRMED.
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SO ORDERED.

EN BANC

G.R. No. 110954 May 31, 1995

DELFIN N. DIVINAGRACIA, JR., AND ALEXIS D. SAN LUIS, petitioners,
vs.
HON. PATRICIA A. STO. TOMAS, RAMON P. ERENETA, JR., and PRESCILLA B.
NACARIO, respondents.

BELLOSILLO, J.:
The primordial purpose of our civil service laws is to establish and maintain a merit system in
the selection of public officers and employees without regard to sex, color, social status or
political affiliation. But there are times when appointments to public office are dominated by
partisan favoritism and patronage, where tenurial rights are subject to the whims of
officialdom.
On 1 August 1980 Filomena R. Mancita was appointed Municipal Development Coordinator
(MDC) of Pili, Camarines Sur, in a permanent capacity. On 14 March 1983 when the Local
Government Code took effect, the office was renamed Municipal Planning and Development
Coordinator (MPDC). 1 On 28 March 1983 the Sangguniang Bayan of Pili approved
Resolution No. 38 creating and organizing the Office of MPDC. 2 Mancita held over the
position until 1985.
On 1 January 1985 the Joint Commission on Local Government Personnel Administration
approved the reorganization plan and staffing pattern of the Municipality of Pili. 3 In a letter
dated 17 June 1985 Mayor Anastacio M. Prila notified Mancita that her services were being
terminated effective at the close of office hours on 1 July 1985 on the ground that the Office of
MDC was abolished as a result of the reorganization of the local government of Pili. Private
respondent Prescilla B. Nacario who was then the Municipal Budget Officer was appointed
MPDC on 10 June 1985 to take effect on 1 July 1985. 4 Nacario was replaced by Digna Isidro
as Municipal Budget Officer. Isidro was succeeded a year later by Eleanor Villarico who
served until 1990.
In 1988 the Local Government Officers Services, which included the local Budget Office, was
nationalized and placed under the Department of Budget and Management. As a result, the
authority to appoint the Budget Officers of the different local government units devolved upon
the Secretary of the Budget. When Villarico resigned on 1 March 1990 the Budget Office
became vacant until 30 September 1991, or for more than a year, owing to the lack of a
qualified candidate that the Secretary of the Budget could appoint. In the meantime, Juan
Batan, the former Municipal Budget Officer of Baao, Camarines Sur, was appointed Officer-inCharge of the Municipal Budget Office of Pili. He was later replaced by Francisco Deocareza,
the former Budget Officer of Naga City, in the same capacity. 5
On 1 October 1991, petitioner Alexis D. San Luis, Cashier II of the Department of
Environment and Natural Resources (DENR), was temporarily appointed Municipal Budget
Officer of Pili by Secretary Guillermo N. Carague of the Department of Budget and
Management. When control over the Local Government Officers Services was returned to the

local government units by virtue of the Local Government Code of 1991 (R.A. 7160 as
implemented by E.O. 503), San Luis was reappointed to the same position on 22 June 1992,
this time in a permanent capacity, by petitioner Delfin N. Divinagracia, Mayor of Pili. 6
San Luis started in the career civil service in 1977 as a casual clerk in the DENR, rising from
the ranks until he was appointed Cashier II based in Legaspi City, the position he was holding
when appointed Municipal Budget Officer of Pili. 7
Meanwhile, Mancita appealed her termination to the Merit Systems and Protection Board
(MSPB). 8 On 20 June 1989 the MSPB declared her separation from the service illegal,
holding that the Office of the Municipal Development Coordinator was abolished by the Local
Government Code of 1991 and not by the reorganization of the Municipality of Pili as claimed
by Mayor Prila. According to the MSPB, Mancita was in fact qualified for the newly-created
position of MPDC since the powers and duties of the two positions were essentially the same.
The MSPB ordered Mayor Divinagracia to reinstate Mancita to the position of MPDC or to an
equivalent position, and to pay her backwages from the date of her separation. 9 The decision
of MSPB was appealed by Mayor Divinagracia to the Civil Service Commission but the appeal
was dismissed on 16 July 1990 per CSC Resolution No. 90-657. 10 On 15 October 1990,
Mayor Divinagracia informed private respondent Nacario that she was being relieved of her
position as MPDC effective 16 November 1990 in order to comply with the MSPB decision to
reinstate Mancita as MPDC.
On 8 November 1990 private respondent Prescilla B. Nacario filed a Petition for Declaratory
Relief and Prohibition with Preliminary Injunction with the Regional Trial Court of Pili, Br. 31,
docketed as Civil Case No. P-17819, against CSC Chairperson Patricia A. Sto. Tomas, Mayor
Delfin N. Divinagracia, Jr., Elium Banda, Regional Director of CSC in Region 5, and Filomena
R. Mancita, praying for the annulment of CSC Resolution No. 90-657. Presiding Judge
Ceferino P. Barcinas of Br. 31 issued a temporary restraining order enjoining the
implementation of the questioned CSC resolution and set the date for the hearing of the
application for preliminary injunction. Mancita filed a motion to dismiss on the ground that the
trial court had no jurisdiction over the subject matter. Her motion was denied. Mancita then
filed a special civil action for certiorari under Rule 65 before this Court questioning the denial
of her motion. Through Mr. Justice Teodoro R. Padilla we granted the petition and held that
the lower court had no jurisdiction over the case since all decisions, orders and resolutions of
the Civil Service Commission were subject to review only by this Court on certiorari under
Rule 65 of the Rules of Court. 11
While the petition of Mancita was pending with us, Nacario sent a query to public respondent
Commission asking about her status as a permanent employee of the Municipality of Pili after
she had accepted the position of MPDC. In a letter dated 8 December 1992 public respondent
opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for
Nacario's termination, and since she was the former Municipal Budget Officer she had the
right to return to that position. 12
On 15 March 1993 Mayor Divinagracia wrote to CSC Chairperson Patricia A. Sto. Tomas
seeking a reconsideration of her opinion of 8 December 1992. Mayor Divinagracia explained
the factual circumstances behind the ouster of Mancita and the resulting appointment of
Nacario to the position of MPDC, arguing that San Luis was validly appointed by the

Secretary of the Budget and confirmed by the CSC, hence, entitled to security of tenure.

13

On 27 May 1993 public respondent issued CSC Resolution No. 93-1996 denying the request
of Mayor Divinagracia for a reconsideration. Upholding Nacario's right to security of tenure the
CSC held that the reinstatement of Mancita to the position of MPDC could not be a valid
cause for the termination of Nacario. Public respondent relied on Sec. 13, Rule VI, of the
Omnibus Rules Implementing Book V of E.O. No. 292, otherwise known as the Revised
Administrative Code of 1978 in directing the restoration of Nacario to her former position. Sec.
13 mandates the return of an appointee, in a chain of promotions, to his former position once
his appointment is subsequently disapproved.
Petitioners have come to us for relief praying that CSC Resolution No. 93-1996 be nullified for
having been issued with grave abuse of discretion. On 5 October 1993, upon motion of
petitioners, this Court issued a status quo ante order enjoining the enforcement of the
questioned CSC order. 14 Petitioners contend that Sec. 13, Rule VI, of the Omnibus Rules
Implementing the Revised Administrative Code (E.O. 292) does not apply to the present case
because the rule covers only appointments in a chain of promotions and not where a public
officer was merely transferred to another position of the same rank, grade and level.
Petitioners further contend that Nacario was deemed to have vacated her position as Budget
Officer when she accepted her appointment as MPDC considering that there were several
appointments made to the Budget Office in the past eight (8) years since her transfer. 15
According to petitioners, San Luis was also denied his right to be heard when public
respondent ordered him to vacate his position without affording him an opportunity to contest
the claim of Nacario thus violating his constitutional right to due process. 16
Upon the other hand, private respondent claims that she did not voluntarily apply for transfer
from the Budget Office to the Office of MPDC but was constrained to "accept" the new
position because of Mayor Prila. She was, in her own words, "a passive participant in the
movement of personnel" in the municipal government of Pili having acted as a "subservient
public official" in assuming the position of MPDC.
Nacario maintains that her "acceptance" of the position of MPDC which she admits is of the
same rank, salary grade and level was motivated by her respect for Mayor Prila who was then
her superior. In fact, according to her, she applied for the position of Budget Officer with the
Department of Budget and Management while she was MPDC indicating that she did not
abandon or relinquish her former position as alleged by petitioners. 17
For their part, public respondents Sto. Tomas and Ereneta, Jr., insist on the application to the
present case of the automatic reversion rule provided under Sec. 13, Rule VI, of the Omnibus
Rules Implementing Book V of E.O. 292. They submit that the term "chain of promotions"
must not be interpreted in a literal, rigid and narrow sense but must be construed liberally in
favor of private respondent who merely accepted the position of MPDC to accommodate her
superior unaware that her new appointment thereto would be infirmed. 18
We deny the petition. Petitioner Alexis D. San Luis cannot hold on to the position of Municipal
Budget Officer. On the other hand, respondent Prescilla B. Nacario who is protected by law in
her security of tenure should be reinstated thereto.

Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292 provides that
Sec. 13. All appointments involved in a chain of promotions must be submitted simultaneously
for approval by the Commission. The disapproval of the appointment of a person proposed to a
higher position invalidates the promotion of those in lower positions and automatically restores
them to their former positions. However, the affected persons are entitled to the payment of
salaries for services actually rendered at a rate fixed in their promotional appointments.

Under the aforecited section, before a public official or employee can be automatically
restored to her former position, there must first be a series of promotions; second, all
appointments are simultaneously submitted to the CSC for approval; and third, the CSC
disapproves the appointment of a person proposed to a higher position.
The essential requisites prescribed under Sec. 13 do not avail in the case at bench. To start
with, the movement of Nacario from the Budget Office to the Office of MPDC cannot be
considered a promotion for the term connotes an increase in duties and responsibilities as
well as a corresponding increase in salary. 19 Conformably therewith, we find the movement of
Nacario one of lateral transfer. 20
A careful examination of the qualifications, powers and duties of a Budget Officer and an
MPDC provided under Secs. 475 and 476 of the Local Government Code of 1991 shows that
the latter office is not burdened with more duties and responsibilities than the former. It is also
interesting to note that there was, on the contrary, a reduction in the basic salary of Nacario,
from P30,505.20 per annum 21 as Budget Officer to P27,732.00 per annum 22 as MPDC.
Moreover, private respondent admitted in her comment and in her memorandum that the
position of Budget Officer and MPDC were of the same rank, salary grade and level. 23 This
was attested to by Vilma J. Martus, the Human Resource Management Officer of Pili, who
certified that per Position Allocation List (PAL) of the municipality the Budget Officer and
MPDC are of equal level. 24
Aside from the lack of a series of promotions, the other two (2) requisites are not also present,
i.e., the appointments of the parties concerned were not simultaneously submitted to the CSC
for approval the appointment (permanent) of Nacario was approved by the CSC on 13
June 1985 while the appointment (permanent) of San Luis was approved by the CSC on 9
February 1993 and, the ouster of Nacario from the Office of MPDC was a result of the
MSPB decision directing the reinstatement of Mancita and not because the CSC disapproved
her appointment as MPDC.
While the contemporaneous construction of Sec. 13 by the CSC is entitled to great weight
and respect, this Court shall depart from such interpretation when it is clearly erroneous 25 or
when there is no ambiguity in the rule, 26 as in the instant case, and yield to the letter of the
law taking its terms in their plain, ordinary and popular meaning. 27
Let us now examine whether the lateral transfer of private respondent was validly made in
accordance with Sec. 5, par. 3, Rule VII, Omnibus Rules Implementing Book V of E.O. 292. If
not, then private respondent is entitled to be protected in her security of tenure.
Sec. 5, par. 3, of Rule VII provides that

Transfer shall not be considered disciplinary when made in the interest of public service, in
which case, the employee concerned shall be informed of the reasons therefor. If the employee
believes that there is no justification for the transfer, he may appeal his case to the commission.
(emphasis supplied)

According to Nacario she never applied or sought appointment by transfer to the position of
MPDC since she even had no prior knowledge of her appointment. 28 She assumed the new
position only in order to comply with the move of Mayor Prila to supposedly "reorganize" the
municipal government of Pili. Nacario did not question her transfer because she revered the
mayor and did not in any way intend to displease him.
The submissive attitude displayed by private respondent towards her transfer is
understandable. Although Nacario was not informed of the reasons therefor she did not
complain to the mayor or appeal her case to the CSC if in fact the same was not made in the
interest of public service. For it is not common among local officials, even those permanent
appointees who are more secured and protected in their tenurial right, to oppose or question
the incumbent local executive on his policies and decisions no matter how improper they may
seem.
Even as early as 1968, in Nemenzo v. Sabillano, 29 we held that
There are altogether too many cases of this nature, wherein local elective officials, upon
assumption of office, wield their new-found power indiscriminately by replacing employees with
their own proteges, regardless of the laws and regulations governing the civil service. Victory at
the polls should not be taken as authority for the commission of such illegal acts.

Private respondent was the Budget Officer of Pili for almost eight (8) years from August 1980
until her transfer in July, 1988. 30 Nacario appeared to be satisfied with her work and felt
fulfilled as Budget Officer until Mayor Prila appointed her MPDC to fill up the position, which
was not even vacant at that time. It was only seven (7) days after Nacario's appointment
when Mayor Prila informed Mancita that her services were being terminated. Simply put,
Mayor Prila was so determined in terminating Mancita that he conveniently pre-arranged her
replacement by Nacario. Although Nacario continued to discharge her duties, this did not
discourage her from trying to regain her former position. Undaunted, she applied with the
Office of the Budget Secretary for the position of Budget Officer upon learning that it was
placed under the Department of Budget and Management. She was not however successful.
In Sta. Maria v. Lopez 31 we distinguished between a transfer and a promotion and laid down
the prerequisites of a valid transfer thus
A transfer is a "movement from one position to another which is of equivalent rank, level and
salary, without break in service." Promotion is the "advancement from one position to another
with an increase in duties and responsibilities as authorized by law, and is usually accompanied
by an increase in salary" . . . A transfer that results in promotion or demotion, advancement or
reduction or a transfer that aims to "lure the employee away from his permanent position,"
cannot be done without the employees' consent. For that would constitute removal from office.
Indeed, no permanent transfer can take place unless the officer or employee is first removed
from the position held, and then appointed to another position. (emphasis provided)

The rule that unconsented transfers amount to removal is not however without exception. As
we further said in Sta. Maria,
Concededly there are transfers which do not amount to removal. Some such transfers can be
effected without the need for charges being proffered, without trial or hearing, 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 assigned provided the transfer affects no substantial change in title, rank and
salary . . . . Such a rule does not proscribe 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 . . . . Neither does illegality attach to the transfer or
reassignment of an officer pending the determination of an administrative charge against him; or
to the transfer of an employee, from his assigned station to the main office, effected in good faith
and in the interest of the service pursuant to Sec. 32 of the Civil Service Act.

Clearly then, the unconsented lateral transfer of Nacario from the Budget Office to the Office
of MPDC was arbitrary for it amounted to removal without cause hence, invalid as it is
anathema to security of tenure. When Nacario was extended a permanent appointment on 1
August 1980 and she assumed the position, she acquired a legal, not merely an equitable,
right to the position. Such right to security of tenure is protected not only by statute, but also
by the Constitution 32 and cannot be taken away from her either by removal, transfer or by
revocation of appointment, except for cause, and after prior notice. 33
The guarantee of security of tenure is an important object of the civil service system because
it affords a faithful employee permanence of employment, at least for the period prescribed by
law, and frees the employee from the fear of political and personal prejudicial reprisal. 34
Consequently, it could not be said that Nacario vacated her former position as Budget Officer
or abdicated her right to hold the office when she accepted the position of MPDC since, in
contemplation of law, she could not be deemed to have been separated from her former
position or to have terminated her official relations therewith notwithstanding that she was
actually discharging the functions and exercising the powers of MPDC. The principle of
estoppel, unlike in Manalo v. Gloria, 35 cannot bar her from returning to her former position
because of the indubitable fact that private respondent reluctantly and hesitantly accepted the
second office. The element of involuntariness tainted her lateral transfer and invalidated her
separation from her former position.
For another thing, the appointment of San Luis as Budget Officer carried with it a condition. At
the back of his appointment is inscribed the notation Sa kondisyon nasa ayos ang
pagkakatiwalag sa tungkulin ng dating nanunungkulan, which when translated means
"Provided that the separation of the former incumbent is in order." Considering that the
separation of Nacario who was the former incumbent was not in order, San Luis should
relinquish his position in favor of private respondent Nacario. This is, of course, without
prejudice to San Luis' right to be reinstated to his former position as Cashier II of the DENR,
he being also a permanent appointee equally guaranteed security of tenure.
A final word. Petitioners cannot claim that they have been denied due process of law by
public respondent. The records reveal that petitioners had the opportunity to question the
adverse opinion rendered by CSC Chairperson Sto. Tomas in a letter dated 15 March 1993.

36

The correspondence which was in the nature of a motion for reconsideration constitutes
sufficient opportunity for petitioners who felt aggrieved to inform the CSC of their side of the
controversy. What is sought to be safeguarded in the application of due process is not the
lack of previous notice but the denial of opportunity to be heard. 37
Before we write finis to this ponencia, we remind those public officials who flaunt their
authority and those similarly inclined to faithfully abide by the Constitution and observe
honestly and in good faith the tenurial security of public servants who serve the government
with sincerity and dedication. They should not be moved or removed from their established
positions without any lawful cause and pushed at will like pawns on the bureaucratic
chessboard.
WHEREFORE, premises considered, the petition is DISMISSED. CSC Resolution No. 931996 is AFFIRMED insofar as it orders the reinstatement of PRESCILLA B. NACARIO to the
Office of Municipal Budget Officer of Pili, Camarines Sur. Accordingly, petitioner Mayor Delfin
N. Divinagracia, or whoever is now the incumbent Mayor of Pili or acting in his behalf, is
ORDERED to reinstate private respondent Prescilla B. Nacario immediately to the position of
Municipal Budget Officer of Pili and petitioner Alexis D. San Luis to vacate the said office
without prejudice to regaining his former position in the government if legally feasible and
warranted.
SO ORDERED.

DELFIN N. DIVINAGRACIA, JR., AND ALEXIS D. SAN LUIS

vs.
HON. PATRICIA A. STO. TOMAS,RAMON P. ERENETA, JR., and PRESCILLA B.
NACARIOFACTS:
Mancita was appointed Municipal Development Coordinator (MDC) of Pili, Camarines Sur, in a
permanentcapacity. When the old LGC took effect in 1983, the office was renamed as
Municipal Planning and DevelopmentCoordinator, to which position, then Municipal
Budget Officer Prescilla B. Nacario was appointed and Mancita
relieved from service by Gov. Prila. The local Budget Office, was nationalized and placed under the
DBMand Alexis D.S a n L u i s w a s t e m p o r a r i l y a p p o i n t e d M u n i c i p a l B u d g e t O f f i c e r
o f P i l i b y D B M S e c r e t a r y C a r a g u e a n d w a s subsequently appointed to said position in a
permanent capacity, by petitioner Delfin N. Divinagracia, Mayor of Pili.On appeal to the MPSB,
Mancita received judgment ordering her reinstatement after finding her removal to be illegal.T h e
decision was appealed by Divinagracia to the CSC but was denied. As a result
o f t h e d e n i a l , N a c a r i o w a s terminated from office in order to effect the reinstatement of
Mancita. CSC held that the reinstatement of Mancita was not a valid cause for the removal of Nacario,
and since she was the former Municipal Budget Officer she had theright to return to that position. Sto
Tomas denied a request for reconsideration by Divinagracia.Private respondent claims that she did not
voluntarily apply for transfer from the Budget Office to the Office of MPDC but was constrained to
"accept" the new position because of her deference to then Mayor Prila. In fact, according toher, she

applied for the position of Budget Officer with the Department of Budget and
Management while she wasMPDC indicating that she did not abandon or relinquish her former
position.
ISSUES:
1. WON Sec 13 Rule VI of the IRR of Bk 5 EO 232 is applicable2. WON the lateral transfer of Nacario
was validly made
HELD:
1. No, 2. No
RATIO:
1. Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292 has the ff requisites: 1
st
: before a public official oremployee can be automatically restored to her former position,
there must first be a series of promotions; 2nd all appointments are simultaneously submitted to
the CSC for approval; and 3rd the CSC disapproves the appointment of a person proposed to a higher
position. The essential requisites under Sec. 13 do not avail in the case. The movementof Nacario from
the Budget Office to the Office of MPDC cannot be considered a promotion for the term connotes
anincrease in duties and responsibilities as well as a corresponding increase in salary. It
was movement of a lateraltransfer.2. The unconsented lateral transfer of Nacario from the Budget
Office to the Office of MPDC was arbitrary, amountingto removal without cause, invalid as it is
anathema to security of tenure. When Nacario was extended a permanentappointment and she assumed
the position, she acquired a legal, not merely an equitable right. Such right to security of tenure is
protected not only by statute, but also by the Constitution and cannot be taken away from her either
by removal, transfer or by revocation of appointment, except for cause, and after prior notice.Sec. 5,
par. 3, Rule VII, Omnibus Rules Implementing Book V of E.O. 292 provides that transfer
shall not beconsidered disciplinary when made in the interest of public service, in which case, the
employee concerned shall
beinformed of the reasons therefor
. If the employee believes that there is no justification for the transfer, he may appealhis case to the
commission. A
transfer
is a "movement from one position to another which is of equivalent rank, leveland salary, without
break in service."
Promotion
is the "advancement from one position to another with an increase induties and responsibilities as
authorized by law, and is usually accompanied by an increase in salary". A transfer thatresults in
promotion or demotion, advancement or reduction or a transfer that aims to "
lure the employee away fromhis permanent position,
"
cannot be done without the employees' consent
. That
would constitute removal from office
.No permanent transfer can take place unless the officer or employee is first removed from the position
held, and thenappointed to another position.It could not be said that Nacario vacated her former
position as Budget Officer or abdicated her right to hold the office when she accepted the position
of MPDC. The principle of estoppel cannot bar her from returning to her former position
because of the fact that she reluctantly accepted the second office.The appointment of San Luis is is
with a condition:
Sa kondisyon nasa ayos ang pagkakatiwalag sa tungkulin ngdating nanunungkulan
, which when translated means "

Provided
that the separation of the former incumbent is inorder." Considering that the separation of Nacario who
was the former incumbent was not in order, San Luis shouldrelinquish his position in favor of private
respondent Nacario. This is, of course, without prejudice to San Luis' rightto be reinstated to his
former position as Cashier II of the DENR, he being also a permanent appointee
equally guaranteed security of tenure.

THIRD DIVISION
[G. R. No. 136809. July 27, 2004]
DEMOCRITO D. PLAZA II and VIRGINIA V. TUAZON, petitioners, vs. CAROLINA M.
CASSION, ALBERTA M. SAMPAYAN, JOSEPHINE NATALIA U. LOPEZ, JOCELYN M.
ALMANZOR, LUZVIMINDA G. ARDECER, MAGDALENA S. BALACUIT, WINDELYN B.
CABUSAO, JULIETA R. JANDAYAN, NERI O. SAMUYA, INES V. YAOYAO, TERESITA I.
ROSALES, MARIA DEBRA M. LANAJA, RUTH O. NICOLASURA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Republic Act No. 7160, otherwise known as The Local Government Code of 1991, aims to transform
local government units into self-reliant communities and active partners of the national government in
the attainment of effective services to the people. As a result of the devolution of concerned personnel
from the national government to the various local government units pursuant to the same Code, the
interest of the service demands that their working relations with the local employees should be
harmonious.
This is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals dated
February 14, 1996 and its Resolution dated December 9, 1998 in CA-G.R. SP No. 55052, Carolina
M. Cassion, et al. vs. Civil Service Commission, et al.
Before the passage of Republic Act No. 7160, the task of delivering basic social services was
dispensed by the national government through the Department of Social Welfare and Development
(DSWD). Upon the promulgation and implementation of the Local Government Code, some of the
functions of the DSWD were transferred to the local government units.
The City of Butuan, through its Sangguniang Panglungsod (Sanggunian) passed SP Resolution 427-92,
[3] entitled Resolution Authorizing the City Mayor, Honorable Democrito D. Plaza II, to Sign the
Memorandum of Agreement for the Devolution of the DSWD to the City of Butuan.

Pursuant to the Memorandum of Agreement (MOA)[4] entered into between the City of Butuan,
through then Mayor Democrito Plaza II, petitioner, and the DSWD, the latters services, personnel,
assets and liabilities, and technical support systems were transferred to its city counterpart.
By virtue of the same MOA, Mayor Plaza issued Executive Order (EO) No. 06-92[5] dated October 5,
1992 reconstituting the City Social Services Development Office (CSSDO), devolving or adding
thereto 19 national DSWD employees headed by petitioner Virginia Tuazon, Social Welfare Officer V.
Mayor Plaza designated her Officer-in-Charge of the reconstituted CSSDO. Its office was transferred
from the original CSSDO building to the DSWD building.
The CSSDO was originally composed of herein respondents, headed by Carolina M. Cassion, Social
Welfare Officer IV. Aggrieved by such development, they refused to recognize petitioner Tuazon as
their new head and to report at the DSWD building. They contended that the issuance of EO No. 06-92
by Mayor Plaza and the designation of petitioner Tuazon as Officer-in-charge of the CSSDO are
illegal.
Despite Mayor Plazas series of orders to respondents to report for work at the DSWD building, they
failed to do so.
On January 18, 1993, Mayor Plaza issued a memorandum to the City Legal Officer directing him to
conduct an administrative investigation against respondents. They then submitted their respective
explanations. Thereafter, they were charged administratively for grave misconduct and insubordination
and were preventively suspended for 60 days. This prompted them to file with the Civil Service
Regional Office No. 10 a complaint against Mayor Plaza for violation of the Civil Service Law.
However, their complaint was dismissed for lack of merit.
Upon expiration of their preventive suspension, respondents informed Mayor Plaza that they are
willing to return to work, but to their old office, not to the DSWD building.
For the last time, or on April 14, 1993, Mayor Plaza notified respondents to report to petitioner Tuazon
at the new office in the DSWD building, but they remained obstinate.
On February 9, 1994, Mayor Plaza inquired from the Civil Service Commission (CSC) on what
appropriate action could be taken against respondents for their continued refusal to report for work
since April 1993. In turn, the CSC, through Atty. Lorea, Director II, informed the Mayor that
respondents could be dropped from the rolls pursuant to CSC Memorandum Circular No. 38, Series of
1993.
On February 16, 1994, Mayor Plaza issued an Order dropping respondents from the rolls pursuant to
the said CSC Memorandum Circular.
Forthwith, respondents appealed to the CSC.
On August 22, 1994, the CSC issued Resolution Nos. 94-4626 and 94-6243 dismissing respondents
appeal. In affirming Mayor Plazas Order dropping respondents from the rolls, the CSC held:
CSC Memorandum Circular No. 38, series of 1993 dated September 10, 1993 provides as follows:

Officers and employees who are absent for at least thirty (30) days without approved leave are
considered on Absence Without Official Leave (AWOL) and may be dropped from the service without
prior notice.
A notice or order of the dropping from the rolls of an employee shall be issued by the appointing
authority and submitted to the CSC Office concerned for record purposes.
Based on the above-quoted provision, it is undeniable that the appointing authority has the legal right
to drop from the rolls a civil service officer or employee. Nowhere in the quoted provision is it stated
that only the Commission has the exclusive authority to drop from the rolls civil service officers or
employees. Hence, contrary to the first contention of the appellants, Mayor Plaza acted in conformity
with the law when he ordered the dropping from the rolls of herein appellants. The records of the case
show the fact that appellants did not report for work from April 1993 up to the time they were dropped
from the rolls. Although they manifested intention to return to work upon expiration of their
preventive suspension, still they adamantly insisted that they would report only in their old office and
not in the new one created by Executive Order No. 06-92. The legal excuse being given by the
appellants is highly untenable. The Executive Order issued by the Mayor is presumed valid until
annulled by the proper authorities. The same presumption shall also apply insofar as the designation of
Mrs. Tuazon as OIC is concerned. The proper course of action for the appellants is to comply with the
Mayors directives and then challenge the questioned Executive Order before the proper forum,
otherwise, the appellants should suffer the consequence of their acts.
We find without merit the contention of the appellants that they were denied due process for lack of
notice and opportunity to be heard before they were dropped from the rolls. The separation of an
employee who is dropped from the rolls is a non-disciplinary action wherein the respondent is entitled
to notice and hearing. In the above-quoted provision, an officer or employee may be dropped from the
rolls if he was continuously absent without official leave for a period of at least thirty days. Prior
notice is not necessary.
As to the last contention of the appellants that it was really the intention of the mayor to systematically
remove them, the Commission likewise finds it without merit. No evidence was submitted by the
appellants to support such contention.
Respondents then filed with the Court of Appeals a petition for review.
On February 14, 1996, the Appellate Court rendered its Decision setting aside the assailed CSC
Resolutions and EO No. 06-92 issued by Mayor Plaza and reinstating respondents to their former
positions without loss of seniority rights and emoluments with full back wages and other benefits
corresponding to the period from January 1993 up to actual reinstatement. Petitioners filed a motion
for reconsideration but was denied.
The Court of Appeals ratiocinated as follows:
The fundamental rule of due process, on the other hand, requires that a person be accorded notice and
opportunity to be heard (Rebuena v. Civil Service Commission, G.R. No. 115942, 31 May 1995;
Klaveness Maritime Agency, Inc. v. Palmos, 232 SCRA 448 [1994]). Ample opportunity
contemplated by law connotes every kind of assistance which must be accorded to the employee to
enable him to prepare adequately for his defense including legal representation (Segismundo v. NLRC,

G.R. No. 112203, 13 December 1994, 329 SCRA 167, citing Abiera v. NLRC, 215 SCRA 476 [1992]).
Non-compliance with the twin requirements of notice and hearing is fatal because these requirements
are conditions sine qua non before a dismissal may be validly effected (Maneho v. NLRC, 229 SCRA
240 [1994], citing Tiu v. NLRC, 215 SCRA 540 [1992]). In fact, notice and hearing must be accorded
an employee even though the employee does not affirmatively demand it (Century Textile Mills v.
NLRC, 161 SCRA 528 [1988]).
A circumspect scrutiny of the record leaves Us unconvinced that petitioners were accorded this
opportunity to be heard when they sought relief before respondent CSCs Regional Office No. X which
dismissed their complaint, docketed as ADM. Case No. ND 93-023, against respondents City Mayor
and Virginia V. Tuazon for violation of the Civil Service Law and its implementing rules and
regulations. x x x
xxx
As regards the validity of the issuance of E.O. No. 06-92, there can be no dispute over the power of
the government to reorganize, whether traditional, progressive or whatever adjective is appended to it.
However, the essence of constitutional government is adherence to basic rules. The rule of law
requires that no government official should feel free to do as he pleases using only his avowedly
sincere intentions and conscience to guide him. The fundamental standards of fairness embodied in
the bona fide rule can not be disregarded (Mendoza v. Quisumbing, 186 SCRA 108 [1990]; see also
Romualdez-Yap v. CSC, 225 SSCRA 285 [1993].
In the main, petitioners contend that the Court of Appeals erred in setting aside the CSC Resolutions
dropping respondents from the rolls and EO No. 06-92 directing the devolution of 19 national DSWD
employees to the local or city DSWD to be headed by petitioner Virginia Tuazon.
Private respondents, on the other hand, aver that their refusal to report for work is justified since EO
No. 06-92 is not valid as it was issued without prior approval by the Sanggunian in violation of Article
164, Rule XXII of the Rules and Regulations Implementing the Local Government Code.
Section 17 of the Local Government Code authorizes the devolution of personnel, assets and liabilities,
records of basic services, and facilities of a national government agency to local government units.
Under this Code, the term devolution refers to the act by which the national government confers
power and authority upon the various local government units to perform specific functions and
responsibilities.
As a consequence of the devolution of national agencies, Executive Order No. 503 was enacted by then
President Corazon C. Aquino to govern and ensure the efficient transfer of responsibilities to the local
government unit concerned. Section 2 (g) provides:
The local chief executive shall be responsible for all devolved functions. He may delegate such
powers and functions to his duly authorized representative whose position shall preferably not be lower
than the rank of a local government department head. In all cases of delegated authority, the local chief
executive shall at all times observe the principle of command responsibility.
Section 2 (a) states that:

Except as herein otherwise provided, devolved permanent personnel shall be automatically

reappointed by the local chief executive concerned immediately upon their transfer which shall not go
beyond June 30, 1992.
Likewise, Section 22 of CSC Memorandum Circular No. 19, Series of 1992, specifies that:
The positions absorbed by the local government units from the national government agencies shall be
automatically created upon transfer of their corresponding budgetary allocation.
Devolved permanent personnel shall be automatically reappointed by the local chief executive
concerned immediately upon their transfer.
However, pending the completion of the new organizational structure and staffing pattern, the local
government executives may assign devolved personnel to divisions/sections/units where their
qualifications are best suited or appropriate.
It is thus clear that Mayor Plaza is empowered to issue EO No. 06-92 in order to give effect to the
devolution decreed by the Local Government Code. As the local chief executive of Butuan City,
Mayor Plaza has the authority to reappoint devolved personnel and may designate an employee to take
charge of a department until the appointment of a regular head, as was done by the Mayor here.
CSC Memorandum Circular No. 19, Series of 1992, provides further that heads of departments
appointed by the local chief executive must have the concurrence of the majority of all the members of
the Sanggunian concerned. While initially, the Sanggunian rejected petitioner Tuazons appointment
as the City Government Department Head II of the CSSDO, however, it later confirmed her
appointment.
The Court Appeals erred in ruling that EO No. 06-92 violated respondents security of tenure as they
were transferred to another office without their consent. There was no such transfer. Transfer is a
movement from one position to another which is of equivalent rank, level or salary without break in
service and may be imposed as an administrative penalty.[6] The change of respondents place of work
from the original CSSDO office to the DSWD building is not a transfer. It was only a physical
transfer of their office to a new one done in the interest of public service. There were no new
movements or appointments from one position to another.
Private respondents argue that they were denied due process when they were dropped from the rolls.
CSC Memorandum Circular No. 38, Series of 1993, provides:
VI. Requirements For Certain Mode of Separation.
Dropping from the Rolls Non-disciplinary in nature, executory but appealable to the CSC office
concerned within fifteen (15) days from receipt of the order or notice.
Officers and employees who are absent for at least thirty (30) days without approved leave are
considered on Absence Without Leave (AWOL) and may be dropped from the service without prior
notice.

A notice or order of the dropping from the rolls of an employee shall be issued by the appointing
authority and submitted to the CSC office concerned for record purposes.
Pursuant to the above provisions and as ruled by the CSC, the dropping from the rolls of private
respondents is not disciplinary in nature. Thus, their assertion that they were denied due process is
untenable. Since the dropping from the rolls is not an administrative sanction, they need not be notified
or be heard.
WHEREFORE, the Decision dated February 14, 1996 of the Court of Appeals is REVERSED. The
CSC Resolution No. 94-4626 dated August 22, 1994, and Resolution No. 94-6243 dated November 17,
1994 dropping private respondents from the rolls are AFFIRMED.
SO ORDERED.

EN BANC
G.R. No. 78946 April 15, 1988
DR. NENITA PALMA-FERNANDEZ, petitioner,
vs.
DR. ADRIANO DE LA PAZ, DR. SOSEPATRO AGUILA, and THE SECRETARY OF
HEALTH, respondents.
Oscar C. Fernandez for petitioner.
The Solicitor General for respondents.

MELENCIO-HERRERA, J.:
This is a Petition for Quo Warranto filed by petitioner, Dr. Nenita Palma-Fernandez, claiming
entitlement to the position of Assistant Director for Professional Services at the East Avenue
Medical Center (formerly Hospital ng Bagong Lipunan) alleged to be unlawfully held by
private respondent, Dr. Sosepatro Aguila.
The background facts follow:

On 1 May 1985, petitioner was extended a permanent appointment to the position of Chief of
Clinics at the Hospital ng Bagong Lipunan (now East Avenue Medical Center) by then
Minister of Health and Chairman of the Board of Governors of the Center, Jesus C. Azurin.
Previous to this appointment, petitioner, a career physician, occupied the positions of Medical
Specialist I in 1978, Medical Specialist II from October 1982 to April 1985, until her
appointment as Chief of Clinics on 1 May 1985. Even during her incumbency as Medical
Specialist II, petitioner was already designated as Acting Chief of Clinics since September
1983 up to her permanent appointment to said position.
As Chief of Clinics, petitioner exercised direct control and supervision over all heads of
departments in the Medical Center
In 1986, the new organizational structure of the Center retitled the position of Chief of Clinics
to Assistant Director for Professional Services. In partial implementation of this new set-up,
respondent Dr. Adriano de la Paz, as Medical Center Chief, issued Hospital Order No. 30,
Series of 1986, on 8 August 1986, designating petitioner as Assistant Director of Professional
Services (Annex 3, Comment, p. 48, Rollo). As such, she continued to exercise direct control
and supervision over all heads of departments in the Medical Center.
On 30 January 1987, Executive Order No. 119 known as the "Reorganization Act of the
Ministry of Health" was promulgated.
On 29 May 1987, respondent De la Paz, as Medical Center Chief, designated respondent Dr.
Aguila, who was then Medical Specialist I, as Assistant Director for Professional Services
"vice Dr. Nenita Palma-Fernandez, who will be transferred to the Research Office." (Hospital
Order No. 21, series of 1987, Annex B, Petition). Said order was purportedly issued "in the
interest of the hospital service."
On the same date, Hospital Order No. 22, series of 1987, (Annex C, Petition), was issued by
respondent De la Paz, whereby petitioner was relieved "of her present duties and
responsibilities as Chief of Clinic and hereby transferred to the Research Office. This order
being issued in the interest of the hospital service.
Upon receipt of Hospital Order No. 22, petitioner filed on 1 June 1987 a letter-protest with
respondent Secretary of Health, furnishing copies to respondents De la Paz and Aguila, as
well as to the Commissioner of Civil Service and the Chairman of the Government
Reorganization Commission.
Failing to secure any action on her protest within a month's time, petitioner filed on 8 July
1987 the instant Petition for Quo Warranto with Preliminary Injunction against respondents Dr.
de la Paz, Dr. Aguila, and the Secretary of Health.
On 14 July 1987, this Court issued a Temporary Restraining Order enjoining the
implementation of Hospital Orders Nos. 21 and 22, series of 1987.
After considering and deliberating on all Comments, the Reply, and the Rejoinder of the
Solicitor General to said Reply, the Court, on 17 March 1988, Resolved to give due course to

the Petition, and dispensing with memoranda, declared the case submitted for resolution.
The Solicitor General has aptly framed the issues for resolution as follows:
1. Whether or not respondent De la Paz has the power or authority to issue the two Hospital
Orders in question;
2. Whether or not petitioner has a valid cause of action; and
3. Whether or not the rule on exhaustion of administrative remedies precludes the filing of the
instant Petition.
The Solicitor General, on behalf of the Secretary of Health, makes common cause with
petitioner and answers the first and third issues in the negative, and the second in the
affirmative. For their part, Respondents De la Paz and Aguila uphold the opposite views.
We rule for petitioner.
1. Since the East Avenue Medical Center is one of the National Health Facilities attached to
the Department of Health, the power to appoint and remove subordinate officers and
employees, like petitioner, is vested in the Secretary of Health, not the Medical Center Chief.
The latter's function is confined to recommendation. Thus, Section 79 (D). of the Revised
Administrative Code provides:
Section 79 (D). Power to appoint and remove. The Department Head, upon the
recommendation of the Chief of the bureau or office concerned, shall appoint all subordinate
officers and employees whose appointment is not expressly vested by law in the President of
the Philippines, and may remove or punish them, except as especially provided otherwise, in
accordance with the Civil Service Law...
The Department Head also may, from time to time, in the interest of the service, change the
distribution among the several bureaus and offices of his Department of the employees or
subordinates authorized by law.

Executive Order No. 119, or the Reorganization Act of the Ministry of Health, likewise states:
SEC. 26. New Structure and Pattern...
The new position structure and staffing pattern of the Ministry shag be prescribed by the Minister
within one hundred twenty (120) days from the approval of this executive order subject to
approval by the Office of Compensation and Classification and the authorized positions created
thereunder shall be filled thereafter with regular appointments by him or the President, as the
case may be as herein provided...

Respondent Medical Center Chiefs argument that petitioner was not appointed but was
merely transferred in the interest of the public service to the Research Office pursuant to
Section 24 (c) of Presidential Decree No. 807, or the Civil Service Decree of the Philippines
will not alter the situation. Even a transfer requires an appointment, which is beyond the
authority of respondent Medical Center Chief to extend, supra. Besides, the transfer was
without petitioner's consent, was tantamount to removal without valid cause, and as such is

invalid and without any legal effect (Garcia, et al. vs. Lejano, et al., 109 Phil. 116). A removal
without cause is violative of the Constitutional guarantee that "no officer or employee of the
civil service shall be removed or suspended except for cause provided by law" (Article IX, B,
Section 2(3),1987 Constitution).
Petitioner's "designation" as Assistant Director for Professional Services on 8 August 1986 in
accordance with the organizational structure of the Department of Health under Hospital
Order No. 30, Series of 1986, issued by respondent Medical Center Chief did not make her
occupancy of that position temporary in character. It bears stressing that the positions of
Chief of Clinics and Assistant Director for Professional Services are basically one and the
same except for the change in nomenclature. Petitioner's permanent appointment on 1 May
1985 to the position of Chief of Clinics, therefore, remained effective.
Neither can respondent Medical Center Chief rely on Section 2, Article III of the Freedom
Constitution and its Implementing Rules and Regulations embodied in Executive Order No.
17, Series of 1986. The relevant provision was effective only "within a period of one year from
February 25, 1 986." 2 The Hospital Orders in question were issued only on 29 May, 1987.
Executive Order No. 119, or the 'Reorganization Act of the Ministry of Health" promulgated on
30 January 1987, neither justifies petitioner's removal. The pertinent provision thereof reads:
Sec. 26. New Structure and Pattern. Upon approval of this Executive Order, the officers and
employees of the Ministry shall, in a holdover capacity, continue to perform their respective
duties and responsibilities and receive the corresponding salaries and benefits unless in the
meantime they are separated from government service pursuant to Executive Order No. 17
(1986) or Article III of the Freedom Constitution.

The argument that, on the basis of this provision, petitioner's term of office ended on 30
January 1987 and that she continued in the performance of her duties merely in a hold over
capacity and could be transferred to another position without violating any of her legal rights,
is untenable. The occupancy of a position in a hold over capacity was conceived to facilitate
reorganization and would have lapsed on 25 February 1987 (under the Provisional
Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective
(De Leon, et al. vs. Hon. Benjamin B. Esquerra, et al., G.R. No. 78059, 31 August 1987).
After the said date the provisions of the latter on security of tenure govern.
And while it may be that the designation of respondent Aguila as Assistant Director for
Professional Services and the relief of petitioner from the said position were not disapproved
by respondent Secretary of Health, it by no means implies that the questioned acts of
respondent Medical Center Chief were approved by the former official.
2. It follows from the foregoing disquisition that petitioner has a valid cause of action. Where
there is usurpation or intrusion into an office, quo warranto is the proper remedy. (Lota vs.
Court of Appeals, No. L-14803, June 30, 1961, 2 SCRA 715).
3. The doctrine on exhaustion of administrative remedies does not preclude petitioner from
seeking judicial relief This rule is not a hard and fast one but admits of exceptions among
which are that (1) the question in dispute is "purely a legal one" and (2) the controverted act is

'patently illegal" (Carino vs. ACCFA, No. L-19808, September 29,1966,18 SCRA 183). The
questions involved here are purely legal. The subject Hospital Orders violated petitioner's
constitutional right to security of in tenure and were, therefore, "patently illegal." Judicial
intervention was called for to enjoin the implementation of the controverted acts.
There was substantial compliance by petitioner with the requirement of exhaustion of
administrative remedies since she had filed a letter-protest With the respondent Secretary of
Health, with copies furnished the Commissioner of Civil Service, and the Chairman of the
Government Reorganization Commission, but the same remained unacted upon and proved
an inadequate remedy. Besides, an action for quo warranto must be filed within one year after
the cause of action accrues (Sec. 16, Rule 66, Rules of Court), and the pendency of
administrative remedies does not operate to suspend the running of the one-year period
(Cornejo vs. Secretary of Justice L-32818, June 24, 1974, 57 SCRA 663).
WHEREFORE, the Writ of Quo Warranto is granted and petitioner, Dr. Nenita PalmaFernandez, is hereby held entitled to the position of Assistant Director of Professional
Services of the East Avenue Medical Center up to the expiration of her term. The Temporary
Restraining Order heretofore issued enjoining the implementation of Hospital Orders Nos. 21
and 22, both dated 29 May 1987, is hereby made permanent.
SO ORDERED.

EN BANC

G.R. No. 113843 June 2, 1995

HON. LIWAYWAY VINZONS-CHATO, in her capacity as Commissioner of Internal Revenue,
and SOLON B. ALCANTARA, Petitioners, vs. HON. ELI G.C. NATIVIDAD, Presiding Judge of
Branch 48, Regional Trial Court of San Fernando, Pampanga, and SALVADOR NORI B. BLAS,
Respondents.
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MENDOZA, J.:
This is a petition for certiorari to annul the order dated February 7, 1994 of respondent judge of the
Regional Trial Court of San Fernando, Pampanga in Civil Case No. 10066, enjoining petitioner
Commissioner of Internal Revenue from transferring respondent Nori B. Blas, as revenue district
officer from San Fernando, Pampanga to Tuguegarao, Cagayan.
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The facts of the case are as follows:

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On October 26, 1993, President Fidel V. Ramos issued E.O. No. 132, entitled "Approving the
Streamlining of the Bureau of Internal Revenue."
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Pursuant to this Order, Commissioner Liwayway Vinzons R. Chato issued on December 1, 1993
Revenue Administrative Order No. 5-93, "Redefining the areas of jurisdiction and renumbering of
regional district offices. "The order subdivided the nineteen revenue regions provided for under the
National Internal Revenue Code into 115 revenue districts and renumbered the resulting revenue
district office (RDOs). In addition, it abolished the previous classification of RDOs into Class A-1, A,
B, C, and D and provided that henceforth all RDOs shall be treated as the same class. 1
On December 10, 1993, petitioner Commissioner of Internal Revenue, citing the "exigencies of the
revenue service," issued Revenue Travel Assignment Order No. 80-93 (RTAO 80-93), directing ninety
revenue district officers to report to new assignments in the redesignated and renumbered revenue
district offices nationwide.
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Among those affected by the reassignment was private respondent Salvador Nori Blas, who was
ordered to report to Revenue District No. 14 in Tuguegarao, Cagayan. In turn, petitioner Solon B.
Alcantara was ordered to report to Blas' former post in San Fernando, Pampanga, now known as
Revenue District No. 21.
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On December 15, 1993, private respondent wrote petitioner Commissioner requesting a reconsideration
of his transfer. He felt that his accomplishments and performance had not been taken into consideration
in the reshuffle and that his transfer from what he thought is the larger revenue district of San
Fernando, Pampanga to the smaller district in Tuguegarao, Cagayan was a demotion. He claimed that
he was among the top ten examiners of Revenue Region No. 5 for six consecutive years and that he
was a model employee in 1981. In addition, he mentioned that he was a diabetic and that he needed to
be near his doctor, and could not endure long travels.
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On January 19, 1994, with his letter unacted upon, private respondent filed with the Regional Trial
Court a verified complaint for "Injunction with Preliminary Injunction and Temporary Restraining
Order" against the Commissioner and petitioner Alcantara. He alleged that the transfer without his
consent from the revenue district in San Fernando, which was formerly designated as a Class "A," to
the revenue district in Tuguegarao, which was classified as a Class "C," with a smaller pool of
personnel and only one-fourth of the revenue capacity of Pampanga, would cause his "dislocation" and
demotion or "a diminution in rank, status, and span of duties and responsibilities." He invoked E.O. No.
132, that
2. Redeployment of Personnel. The redeployment of officials and other personnel on the basis of the
streamlining embodied in this Executive Order shall not result in the dislocation of existing personnel
nor in the diminution of rank and compensation and shall take into account pertinent Civil Service Law
and rules.
On January 20, 1994, the respondent judge issued a temporary restraining order and set the hearing on
the application for a writ of preliminary injunction on January 28, 1994.
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On February 7, 1994, he granted the writ of preliminary injunction, stating:

After the hearing, it is clear from [sic] the Court that what is to be resolved in determining whether or
not an injunction lies are the following issues: whether or not there is a reduction in duties and
responsibilities; whether or not, there was a demotion and dislocation on the part of the plaintiff when
the public defendant Chato issued Revenue Travel Assignment Order (RTAO) No. 80-93.
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Considering that in order for the Court to squarely resolve and properly ventilate the issues abovestated, the Court deemed it wise and proper that the same be threshed out in a full blown trial and to
maintain status quo, this Court hereby grants the application for the issuance of a writ of preliminary
injunction and fixes the bond to be posted by the plaintiff in the amount of P5,000.00, to answer for the
damages which the defendants may sustain by reason of the injunction if the Court should finally
decide that the plaintiff was not entitled thereto.
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WHEREFORE, defendant Liwayway Vinzons-Chato, the Commissioner of Internal Revenue, is hereby

ordered and directed to cease and desist in enforcing Revenue Travel Assignment Order (RTAO) No.
80-93 dated December 10, 1993 as far as the plaintiff herein is concerned; and defendant Solon B.
Alcantara to cease and desist from assuming office as Revenue District Officer of District 18 (now 21),
San Fernando, Pampanga, pending the hearing on the merits of the injunction case, unless a contrary
order is issued.
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SO ORDERED.
On February 24, 1994, the Commissioner filed the present petition assailing this Order.

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Petitioner alleges that respondent judge acted with grave abuse of discretion in issuing the preliminary
injunction because nowhere in the order was it stated that private respondent had a right which was
violated as a result of the issuance the reassignment of regional revenue officers under of RTAO 8093.
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Petitioner argues, firstly, that private respondent did not have any vested right to his station in San
Fernando, Pampanga since he was only designated to the post and not appointed thereto. Neither did
private respondent show any right to be exempted from the reorganization.
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Secondly, petitioner argues that the transfer was made pursuant to E.O. No. 132, and this being so, it
should not be considered disciplinary in nature. On the contrary, it was made in the interest of the
public service, as an exception to the rule requiring the employee's consent in non-disciplinary
transfers.
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Thirdly, neither was the transfer a demotion, since there was no reduction in duties, responsibilities,
status, rank, or salary. Petitioner cited the fact that RTAO 80-93 had abolished all classes of RDOs and
considered them to be of the same class. Private respondent's reliance on the classifications previously
followed was, therefore, without basis.
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Fourthly, petitioner contends that the failure of private respondent to exhaust all administrative
remedies prior to filing the case was a jurisdictional defect and a valid ground for dismissal of the case
in the RTC. Petitioner cites P.D. No. 807, 24(c) which provides that if an employee believes his
transfer to be unjustified, he may appeal his case to the Civil Service Commission. Resort to the court
was premature and respondent judge should have dismissed the case.
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Petitioner further argues that the issue is moot and academic since petitioner Alcantara took his post as
revenue district officer of Pampanga on January 3, 1994, before the action below was filed on January
19, 1994. Consequently there was no status quo to be preserved by the issuance of a preliminary
injunction.
On the other hand, private respondent contends:

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1. Private respondent never claimed, and does not claim, that he has any vested right at all to his
present assignment/designation as the Revenue District Officer of Revenue District 18 (Re-numbered
21) at San Fernando, Pampanga. All that he asserts is his constitutional right to protection from a
demotion not for cause, and without his consent under the guise of a "transfer in the exigencies of the
service"; (Annex "A", copy of complaint in Civil Case No. 10066, RTC Br. 48, 3rd Judicial Region,
San Fernando, Pampanga)
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2. Private respondent never did, and does not question the power of, nor the need for, the
Commissioner of Internal Revenue to "reshuffle" personnel in the interest of ensuring better - more
honest - public service from the BIR;
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3. The basic petition never questioned the validity of the entire "Revenue Travel Assignment Order No.
80-93" dated 10 December 1993 which sought to "reshuffle" ninety (90) revenue district officers in
fourteen (14) BIR regions in Luzon and the Visayas. Hence the claim that the government efforts at
reorganizing the revenue district service would be "derailed" by a dispute on the unconstitutionality of
the demotion of one such revenue district officer is sheer speculation, not grounded on reality. On the
other hand, it is the injustice, oppression and the manifest disregard of the constitutional standards of
merit and fitness, committed under the guise of such reorganization that will definitely erode the
morale and hamper the consequent performance of BIR personnel.
He contends that his transfer constitutes a demotion because, in effect, his span of control in terms of
jurisdiction and personnel has been considerably diminished. He claims that he has earned, through
hard work, as evidenced by his service record, the position at San Fernando, Pampanga which has a
larger staff and revenue capacity and is much closer to Manila.
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Private respondent likewise denies that petitioner Alcantara assumed office as revenue district officer
of Pampanga because, according to private respondent, he never relinquished his position. Hence, there
was a status quo that could be served by the injunction.
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We issued a temporary restraining order on March 1, 1994 enjoining respondent judge to cease and
desist from implementing his order of February 7, 1994 and ordered the respondents to comment on the
petition.
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We find the-petition to be meritorious.

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Private respondent has shown no clear legal right to the issuance of a writ of preliminary injunction but
despite this fact the trial court issued his questioned order enjoining petitioner from transferring private
respondent.
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In his complaint below, private respondent claimed that he demoted because,

the revenue district that is the northernmost mainland province of Cagayan has only one-fourth (1/4)
the revenue capacity of Pampanga, plaintiff's present station (Cagayan P45.5 million; Pampanga P194.1 million; '87 BIR Annual Report); a diminution in rank, status and span of duties and
responsibilities; and a dislocation from Pampanga, a province 100 kilometers north of Manila, to
Cagayan; over 500 kilometers northeast of Manila; 2
But his transfer to the Tuguegarao revenue district, as petitioner Commissioner explained in her
opposition to the application for a writ of preliminary injunction, did not really entail any diminution in
rank, salary, status and responsibilities. Private respondent's claim that the Tuguegarao revenue district
is smaller than that in San Fernando, Pampanga has no basis because, as already noted, the
classification of RDOs' into Class A-1, A, B, C and D has been abolished and all RDO's are now
considered to be of the same class.
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Nor did petitioner allege in his complaint below that he had a vested right to his post as revenue district
officer of Revenue District No. 21 (formerly No. 18) in San Fernando, Pampanga. The trial court's
order granting the writ of preliminary injunction cites no right of private respondent which might have
been violated as a result of his unconsented transfer to Tuguegarao. The only reason given for the writ
of preliminary injunction is that it is needed to preserve the status quo until the issues can be "threshed
out in full blown trial."
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But the preservation of the status quo is not alone sufficient to justify the issuance of an injunction. The
plaintiff must show that he has a clear legal right; that such right has been violated; and that he is
entitled to the relief he demands, consisting in restraining the commission of the acts complained of. 3
Indeed, private respondent's transfer is part of a nationwide reshuffle or reassignment of revenue
district officers designed to improve revenue collection. More specifically the objective of the
reassignment, as stated in Revenue Administrative Order No. 5-93, is "to strengthen the
decentralization of the Bureau's set-up for the purpose of maximizing tax assessments and revenue
collections, intensifying enforcement of revenue laws and regulations and bringing the revenue service
closer to the taxpaying public."
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It could be that private respondent is being transferred to a revenue district which he claims has less
revenue capacity than San Fernando, Pampanga, precisely to improve the capacity of the new
assignment. His new assignment should therefore be considered by him a challenge to his leadership as
revenue district officer rather than a demotion or a penalty. In Department of Education, Culture and
Sports vs. Court of Appeals, 4 the respondent, who was principal of the Carlos Albert High School, was
transferred to the Manuel Roxas High School because of the exigencies of the service. She questioned
the order on the same ground advanced by private respondent in this case that it was in violation of her
right to security of tenure. In rejecting her contention this Court ruled:
It should be here emphasized that Azurin's letter of August 12, 1982, clearly stated that Navarro's
reassignment is in the exigencies of the service. It was explicitly mentioned that her reassignment is a
recognition of her capabilities as administrator in improving the Carlos Albert High School and that she
should look at her new assignment as a challenge to accomplish new and bigger projects for Manuel
Roxas High School. Moreover, her reassignment was the result of a recognition/reshuffling of all
principals in the Quezon City public schools in the exigencies of the service pursuant to MEC Circular
No. 26, Series of 1972. This circular refers to the policy of the Ministry of Education that principals,
district supervisors, academic supervisors, general education supervisors, school administrative officers

and superintendent are to be transferred upon completion of five (5) years of service in one station.
Such policy was based on the experience that when school officials have stayed long enough in one
station, there is a tendency for them to become stale and unchallenged by new situations and
conditions, and that some administrative problems accumulate for a good number of years. (Emphasis
added)
Private respondent failed to show patent illegality in the action of the Commissioner constituting
violation of his right to security of tenure. To sustain his contention that his transfer constitutes a
demotion simply because the new assignment is not to his liking would be to subordinate government
projects, along with the great resources and efforts they entail, to the individual preferences and
opinions of civil service employees. Such contention would negate the principle 5that a public office is
a public trust and that it is not the private preserve of any person. In granting an injunction despite the
absence of any legal right to be protected, respondent committed a grave abuse of its discretion.
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Moreover, under the law, any employee who questions the validity of his transfer should appeal to the
Civil Service Commission. Respondent judge should have dismissed the action below for failure of
private respondent to exhaust administrative remedies. 6
While this case was pending in this Court, private respondent filed three separate motions to cite
petitioner for contempt. The first, filed on May 16, 1994, alleged that petitioner had filed an
administrative complaint for gross insubordination against private respondent for refusing to take his
new assignment and that this was an act of harassment on the part of petitioner.
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On July 8, 1994, private respondent filed another motion in which he claimed that petitioner had
ordered him preventively suspended in connection with another case filed against him for grave
misconduct, for having allegedly caused the investigation of the 1991 Income Tax and Value-Added
Tax cases of the Central Fermentation Industrial Corporation.
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On February 20, 1995, private respondent filed a third motion, alleging that petitioner rendered a
decision in the case for gross insubordination and imposed on private respondent the penalty of
suspension for 6 months and 1 day.
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The first and second motions are based on private respondent's allegation that pending the
determination of the validity of his transfer by the trial court and this Court, he could not be compelled
to assume the new post. But the writ of preliminary injunction issued by the trial court, which enjoined
the transfer of private respondent, was countermanded by the temporary restraining order subsequently
issued by this Court, with the result that his transfer became again effective. There was nothing to stop
the petitioner from enforcing her Revenue Travel Assignment Order No. 80-93. 7
On the other hand, the filing of another administrative case against private respondent for grave
misconduct appears to have no relation at all to his transfer to a new post or to the fact that he could no
longer act as Revenue District Officer on any case in Pampanga. The administrative case is based on
the fact that he allegedly violated a Revenue Memorandum Order No. 31-93, prohibiting the
investigation of tax cases. The charge is that private respondent caused the investigation of the 1991
Income Tax and Value Added Tax cases of the Central Fermentation Industrial Corp. There is,
therefore, no basis for private respondent's complaint that in instituting the administrative case,
petitioner committed contempt of this Court.
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WHEREFORE, the petition is GRANTED and the order dated February 7, 1994 of respondent judge is
ANNULLED AND SET ASIDE, and private respondent's complaint in the trial court is
DISMISSED.
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Private respondent's motions for contempt are DENIED.

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SO ORDERED.
FIRST DIVISION
[G.R. No. 144493. April 9, 2002]
CRISTINA JENNY CARIO, petitioner, vs. EXECUTIVE DIRECTOR DAVID DAOAS (OFFICE
OF THE NORTHERN CULTURAL COMMUNITIES), respondent.
DECISION
KAPUNAN, J.:

The petition for review on certiorari before this Court assails the decision, promulgated on 15
September 1999, and the resolution, promulgated on 27 June 2000, both by the Court of Appeals in
CA-G.R. SP No. 49802.
Culled from the questioned decision of the appellate court, the facts are as follows:
On 16 August 1995, Cristina Jenny Cario was appointed Accountant III in the Office of the Northern
Cultural Communities (ONCC), now known as the National Commission for Indigenous People.
On 05 November 1996, Cario was reassigned by Atty. David Daoas, ONCC Executive Director, to the
position of Technical Assistant of the Socio-Economic Division of the ONCC. Cario alleged that her
reassignment was an offshoot of her refusal to sign[1] a Disbursement Voucher for the travel expenses
to Indonesia of ONCC Regional Director Rosalina Bistoyong. She further alleged that the position was
non-existent.
Thereafter, Cario filed an administrative complaint for Grave Misconduct, Oppression and Conduct
Prejudicial to the Best Interest of the Service against Bistoyong. The case was docketed Administrative
Case No. 96-049. Bistoyong allegedly asked Cario a number of times to withdraw the case in
exchange for reinstatement to her former position. Cario refused whereupon Bistoyong threatened to
reassign her to the ONCC Region II in Cagayan or in Manila.
On 14 March 1997, Cario received a faxed memorandum from Bistoyong directing her to report to the
ONCC Region II office, effective 17 March 1997, in view of the reassignment of one Milagros Bonnit
to the central office. On 17 March 1997, petitioner inquired with the Regional Director of the Civil
Service Commission (CSC) regarding the propriety and legality of her reassignment. On 18 March
1997, the CSC Regional Director rendered a legal opinion that the reassignment was not in order. Atty.
Daoas and Bistoyong appealed to the Civil Service Commission (hereinafter referred to as the
Commission to distinguish it from the CSC Regional Office).

Meanwhile, Cario requested for a deferment of her reassignment to Region II. At the same time, she
inquired on the possibility of her going on leave. Her request to go on leave was denied.
On 14 April 1997, Atty. Daoas issued a memorandum to petitioner, reprimanding her for her failure to
report at the Region II office, and stating that she was considered Absent Without Leave (AWOL)
since 17 March 1997. Still, Cario continued to report for work in Region I everyday despite the fact
that she was not given any assignment. On 29 April 1997, Bistoyong issued a memorandum ordering
Cario to refrain from reporting for work in Region I and to comply with her reassignment in Region
II. Henceforth, petitioner stopped reporting for work.
Meanwhile, Atty. Daoas issued a Notice/Order of Separation, dated 25 April 1997, and received by
Cario on 13 May 1997 informing her that she was dropped from the rolls because of her absence
without leave for more than thirty (30) days.
On 11 September 1997, the Commission issued Resolution No. 97-3754 dismissing the appeal of Atty.
Daoas and Bistoyong and ordering them to return Cario to Region I. Cario reported back to work
only to be informed, through a memorandum, that the CSC resolution was rendered moot and
academic by her having been dropped from the rolls.
On 11 March 1998, the CSC issued Resolution No. 98-0488 dismissing Cario's appeal and affirming
her dropping from the rolls.
Her motion for reconsideration having been denied, Cario went to the Court of Appeals for relief, via
a petition for review.
In its decision, promulgated on 15 September 1999, the Court of Appeals denied due course to and
dismissed Cario's petition. The appellate court denied for lack of merit Cario's motion for
reconsideration in its 27 June 2000 resolution.
Hence, the present recourse.
Following are the issues raised before this Court:
WHETHER OR NOT THE TERMINATION OF THE PETITIONER IS VALID.
WHETHER OR NOT A REASSIGNMENT ORDER THAT IS NULL AND VOID, BEING
VIOLATIVE OF THE CONSTITUTIONAL RIGHT TO THE SECURITY OF TENURE OF THE
PETITIONER, IMPOSES UPON HER THE OBLIGATION TO COMPLY WITH IT BEFORE IT IS
DECLARED ILLEGAL.
WHETHER OR NOT THE COURT OF APPEALS WAS CORRECT IN RULING THAT THE
NOTICE/ORDER OF SEPARATION ALTHOUGH SENT FIVE (5) DAYS BEFORE THE
EFFECTIVITY OF THE PETITIONER'S DISMISSAL BUT RECEIVED BY THE PETITIONER
EIGHTEEN (18) DAYS AFTER ITS SUBSTANTIAL COMPLIANCE OF CSC MEMORANDUM
CIRCULAR NO. 12, SERIES OF 1994.[2]
There is merit to the petition.

As correctly stated by the Court of Appeals, the validity of the reassignment of petitioner was already
settled by the pronouncement of the Civil Service Commission that such reassignment was not valid
and that she could not be transferred to another region without her consent.[3] It is true that the transfer
or detail of a public officer or employee is a prerogative of the appointing authority[4] and that it can be
done as the exigencies of the public service may require.[5] As such, this Court in a number of cases
allowed the reassignment of personnel but in such instances, they were not appointed to a specific
station or particular unit or agency.[6] The rule proscribes transfers without consent of officers
appointed - not merely assigned - to a particular station,[7] such as in the case of herein petitioner who
was appointed as Accountant III in Region I. Hence, she could not be reassigned to another station or
region without her consent. Otherwise, the unconsented transfer would amount to a removal.[8]
The question that remains is whether or not petitioner should have, in the meanwhile, complied with
the reassignment order, and whether she could be considered AWOL for her refusal to report to her
new assignment during the pendency of respondents appeal.
In this case, petitioner, instead of complying with the reassignment order, continued to report to her
workstation in Region I. For her failure to report to Region II, she was considered AWOL and was
dropped from the rolls. The dropping of petitioner from the rolls was sustained by the Court of
Appeals. The appellate court cited Resolution No. 98-0488 of the Civil Service Commission which
mandates that a reassigned employee who does not agree with the order must nevertheless comply
until its implementation is restrained or it is declared to be not in the interest of the service or have been
issued with grave abuse of discretion. According to the appellate court, petitioner should have asked
the Commission to enjoin the effectivity of her reassignment order, and for her failure to do so, she had
only herself to blame.
We do not agree. It was not petitioner who appealed to the Commission as there was no need for her to
do so. The situation prevailing in the case at bar was that the CSC Regional Officer issued a legal
opinion that petitioners reassignment was not in order and that her present assignment at the ONCC
Regional Office No. 1 must not be disturbed. It was in fact due to this legal opinion that private
respondents went to the Commission on appeal, which appeal was eventually denied. As we stated
earlier, the Commission eventually declared the reassignment of petitioner as not valid, and respondent
Daoas was directed to return petitioner to Region I.
The CSC Regional Office must be accorded the presumption of regularity in the performance of its
duties. Hence, when it rendered a legal opinion as regards the reassignment of petitioner, it must be
considered in order and should be respected pending appeal by private respondents. Petitioner is thus
justified in not heeding her reassignment order because her basis was not, as stated by the appellate
court, her firm belief that her transfer was illegal, but the legal opinion of a regional office of the
Civil Service Commission. Petitioner could not therefore be considered AWOL because she was in fact
reporting for work in Region I until 29 April 1997 when Bistoyong issued a memorandum ordering her
to refrain from reporting for work therein.
Considering the foregoing, the petition is hereby given DUE COURSE. Respondent is hereby directed
to effect the reinstatement of petitioner to her former position or, if it is no longer feasible, to another
position of equivalent rank and compensation. Respondent is likewise ordered to pay petitioner her
back salaries counted from the time she received the 29 April 1997 memorandum of Ms. Bistoyong
ordering her to refrain from reporting for work in Region I.

SO ORDERED.

SECOND DIVISION
[G.R. No. 104296. March 29, 1996]
REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR OF LANDS, petitioner, vs. THE
COURT OF APPEALS, HEIRS OF IRENE BULLUNGAN, represented by her husband DOMINGO
PAGGAO and THE REGISTER OF DEEDS OF ISABELA, respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision[1] of the Court of Appeals reversing the decision of the
Regional Trial Court, Branch XIX,[2] Cauayan, Isabela declaring Free Patent No. V-79740 and Original
Certificate of Title No. P-88 17 in the name of Irene Bullungan null and void so far as the portion of
Lot No. 1, Psu- 150801 involved in this case is concerned.
The facts of this case are as follows:
On September 10, 1955, Irene Bullungan (now deceased) applied for a free patent covering lots
situated in Fugaru (now San Guillermo), Angadanan, Isabela. The lots included a portion of Lot No. 1,
Psu-150801, between Lot No. 763 and Lot No. 764, consisting of 1.04 hectares, which Vicente
Carabbacan claimed. In her application, Irene Bullungan stated that the land applied for by her was not
claimed or occupied by any other person and that it was public land which had been continuously
occupied and cultivated by her since 1925.[3]
Upon certification of Assistant Public Land Inspector Jose M. Telmo at Ilagan, Isabela that Irene
Bullungan had been in actual, continuous, open, notorious, exclusive and adverse possession of the
land since 1925, the Director of Lands approved Bullungans application on June 4, 1957. On
December 26, 1957, Original Certificate of Title No. P-8817 was issued in the name of Irene
Bullungan.
Alleging that a portion of Lot No. 1, Psu-150801 covered by the free patent issued to Irene Bullungan
overlapped the lot between Lot No. 763 and Lot No. 764, which he was occupying, Vicente Carrabacan
filed a protest on September 7, 1961. The District Land Officer at Ilagan, Isabela recommended the
dismissal of the protest on the ground that the Bureau of Lands no longer had jurisdiction over the
matter as a result of the grant of a free patent to Irene Bullungan. But the Director of Lands on March
23, 1982 ordered an investigation of the protest.
Vicente Carabbacan also brought an action for the reconveyance of the portion of Lot No. 1, Psu150801 and the cancellation of free patent against Irene Bullungan on September 5, 1961, although this

was dismissed by the court without prejudice.

The heirs of Irene Bullungan in turn sought to recover possession of the land in an action which they
brought in the Court of First Instance of Isabela on April 13, 1972. The case was docketed as Civil
Case No. Br. II-1102. On the other hand, refusing to give up his claim, Vicente Carabbacan filed a
case for reconveyance on August 15, 1972, which was docketed as Civil Case No. 1108. The cases
were thereafter tried jointly.
On November 22, 1972 the court rendered a decision, dismissing the complaint of Vicente Carabbacan
and ordering him to vacate the land, even as it upheld the ownership of Irene Bullungan. Carabbacan,
who had been in possession of the land in question, was finally ousted on December 10, 1981.
As already stated, the Director of Lands ordered on March 23, 1982 an investigation of Carabbacans
protest. The investigation was undertaken by Senior Special Investigator Napoleon R. Dulay, who
found that Vicente Carabbacan had been in actual cultivation of the land identified as Lot No. 763, Pls594 since 1947, having acquired the same from Tomas Tarayao on May 4, 1947. In his report dated
September 17, 1985, the land investigator stated that due to a big flood which occurred in December
1947, the Cagayan River changed its course by moving north-east, resulting in the emergence of a
piece of land, which is the subject of this dispute. Carrabacan took possession of the land and cultivated
it. He was in the continuous, peaceful, open and adverse occupation and cultivation of the land from
December 1947 until 1981 when he was ejected by virtue of the decision in Civil Cases No. 1088 and
11102.[4]
Based on these findings, the Chief of the Legal Division of the Bureau of Lands recommended on
March 10, 1986 that steps be taken to seek the amendment of Free Patent No. V-79740 and Original
Certificate of Title No. P-8817 of the late Irene Bullungan so as to exclude the disputed portion and for
the reversion of the same to the State.
On November 28, 1986, the Solicitor General filed in behalf of the Republic of the Philippines a
complaint for the cancellation of Free Patent No. V- 79740 and OCT No. P-8817 on the ground of
fraud and misrepresentation in obtaining the free patent. The case was filed in the Regional Trial Court
of Cauayan, Isabela which, on September 25, 1989, rendered a decision declaring Free Patent No. V79740 and OCT No. P-8817 null and void insofar as the portion of Lot No. 1, Psu-150801 between Lot
No. 763 and Lot No. 764, is concerned. The lower court found that Irene Bullungan made
misrepresentations by claiming in her application for a free patent that she was in possession of the
disputed portion of Lot No. 1, Psu-150801, when in fact Vicente Carabbacan was occupying and
cultivating the land. The court justified the reversion of the land in question as an assertion of a
governmental right.
On appeal, however, the Court of Appeals reversed the lower courts ruling on the ground that, after the
lapse of one year from the date of issuance of the patent, the State could no longer bring an action for
reversion. The appellate court held that the certificate of title issued in the name of Irene Bullungan
became incontrovertible and indefeasible upon the lapse of one year from the issuance of the free
patent.
The Republic controverts the ruling of the Court of Appeals. It contends that the doctrine of
indefeasibility of Torrens Titles does not bar the filing of an action for cancellation of title and
reversion of land even if more than one year has elapsed from the issuance of the free patent in case of

fraud in obtaining patents.

We agree with petitioner. To begin with, there is no question that Free Patent No. 79740 and Original
Certificate of Title P-8817 were obtained through fraud. The trial court found that Irene Bullungan
falsely stated in her application for a free patent that Lot No. 1, Psu-150801 was not claimed or
occupied by any other person. The trial court found that a portion of the lot in question had been in the
possession and cultivation of Vicente Carabbacan since December 1947.[5] Indeed private respondents
admit that before Irene Bullungan filed her application for a free patent, she had filed a complaint for
forcible entry against Vicente Carrabacan. The complaint, which was filed in the Justice of the Peace
Court of Angadanan, Isabela, was dismissed precisely because the court found that Carabbacan had
been in possession of the land long before it was sold to Irene Bullungan by Leonida Tarayao.[6]
The Court of Appeals did not disturb the trial courts finding in this case that Irene Bullungan
committed fraud and misrepresentation. Its decision rests solely on the ground that after the lapse of
one year from the date of issuance of a free patent an action for the cancellation of patent and title on
ground of fraud and misrepresentation can no longer be maintained.
We think that this is error. It is settled that once a patent is registered under Act No. 496 (now P.D. No.
1529) and the corresponding certificate of title is issued, the land ceases to be part of the public domain
and becomes private property over which the Director of Lands will no longer have either control or
jurisdiction.[7] The Torrens Title issued on the basis of a free patent or homestead patent becomes as
indefeasible as one which was judicially secured upon the expiration of one year from date of issuance
of patent as provided in P.D. No. 1529, 32 (formerly Act No. 496, 38). However, as held in
Director of Lands v. De Luna,[8] even after the lapse of one year, the State may still bring an action
under 101[9] of the Public Land Act for the reversion to the public domain of lands which have been
fraudulently granted to private individuals. This has been the consistent ruling of this Court.[10]
The failure of Irene Bullungan to disclose that Vicente Carrabacan was in possession of the portion of
land in dispute constitutes fraud and misrepresentation and is a ground for annulling her title.[11] Thus
91 of the Public Land Act provides:
91. The statements made in the application shall be considered as essential conditions and parts of
any concession, title, or permit issued on the basis of such application, and any false statement therein
or omission of facts altering, changing, or modifying the consideration of the facts set forth in such
statements, and any subsequent modification, alteration, or change of the material facts set forth in the
application shall ipso facto produce the cancellation of the concession, title, or permit granted. It shall
be the duty of the Director of Lands, from time to time and whenever he may deem it advisable, to
make the necessary investigations for the purpose of ascertaining whether the material facts set out in
the application are true, or whether they continue to exist and are maintained and preserved in good
faith, and for the purpose of such investigation, the Director of Lands is hereby empowered to issue
subpoenas and subpoenas duces tecum and, if necessary, to obtain compulsory process from the courts.
In every investigation made in accordance with this section, the existence of bad faith, fraud,
concealment, or fraudulent and illegal modification of essential facts shall be presumed if the grantee or
possessor of the land shall refuse or fail to obey a subpoena or subpoena duces tecum lawfully issued
by the Director of Lands or his authorized delegates or agents, or shall refuse or fail. to give direct and
specific answers to pertinent questions, and on the basis of such presumption, an order of cancellation
may issue out further proceedings.

The appellate court said in its decision:

We are not, of course, unaware of cases where the patent and the certificate of title issued pursuant
thereto were declared null and void notwithstanding the expiration of the aforementioned period of one
(1) year simply because of false statement of material and essential facts made in the application
therefor. Be it noted, however, that in these cases the lots patented or granted were no longer part of
the public domain but private ones segregated from the mass thereof. Consequently, no right
whatsoever was awarded in said cases for it is already settled that a free patent which purports to
convey land to which the government did not have any title at the time of its issuance does not vest any
title in the patentee as against the true owner (Suva v. Ventura, 40 O.G. 8, 4th sup. August 23, 1941;
Vital v. Anore, 90 Phil. 855; Director of Lands v. Abanilla, G.R. No. L-26324, August 31, 1983). This
does not obtain in the present case for it is beyond dispute that the subject land was still a part of the
public domain when the same was patented by the Government in favor of appellants predecessor in
interest. Accordingly, there was indeed a title awarded such that when the same was brought under
operation of Land Registration Act in 1957, it became incontrovertible in 1958.[12]
This is not so. Where public land is acquired by an applicant through fraud and misrepresentation, as in
the case at bar, the State may institute reversion proceedings even after the lapse of the one-year period.
Nor is there merit in the claim of private respondents that the action taken by the Republic in this case
is not in keeping with the policy of State to foster families as the factors of society, to give them a
sense. of protection and permanency in their homes.[13] Public policy demands that one who obtains
title to a public land through fraud should not be allowed to benefit therefrom. Vicente Carabbacan had
been in possession of the land even. before Irene Bullungan bought the possessory rights to the land. It
was therefore a misrepresentation for her to state in her application for a free patent that she had been
in possession of the lot in question when the fact is that Carabbacan had been there ahead of her.
WHEREFORE, the decision appealed from is REVERSED and the decision dated September 25,
1989 of the Regional Trial Court of Cauayan, Isabela, Branch XIX is REINSTATED.
SO ORDERED.

Republic v. CAFacts:
A lot with an area of 17,311 sq.m. situated in Barrio Pinagbayanan, Pila, Laguna and 20 meters fromthe
shore of Laguna de Bay; was purchased by Benedicto del Rio from Angel Pili on 19 April 1909.The
Deed of Sale evidencing said purchase is duly recorded with the Registry of Deeds of Sta.
Cruz,Laguna. The land was declared for tax purposes beginning the year 1918, and the
realty taxesthereon had been paid since 1948. When Benedicto del Rio died in 1957, his
heirs extrajudiciallypartitioned his estate and the subject parcel passed on to his son, Santos del Rio,
as the latter's sharein the inheritance. Santos del Rio filed his application for registration of said parcel
on 9 May 1966.The application was opposed by the Director of Lands and by private oppositors,
petitioners in G.R.No. L-43190.Sometime before 1966, private oppositors obtained permission from
Santos del Rio to construct duckhouses on the land in question. Although there was no definite
commitment as to rentals, some of them had made voluntary payments to private respondent.

In violation of the original agreement, private oppositors constructed residential houses on the
land which prompted private respondent tofile an ejectment suit against the former in 1966.
Meanwhile, during the latter part of 1965 and in 1966, private oppositors had simultaneously
filed their respective sales applications with the Bureauof Lands, and in 1966, they opposed Santos del
Rio's application for registration. The CFI Lagunadismissed the application for registration. Applicant
appealed and obtained a favorable judgment fromthe Court of Appeals, setting aside that of the
trial court. The Director of Lands and the private oppositors filed their respective Petitions for
Review of said decision.
Issue:
Whether the land in question, is really part of the foreshore lands?
Held:
Property, which includes parcels of land found in Philippine territory, is either of public dominion or
of private ownership. Public lands, or those of public dominion, have been described as those
which,under existing legislation are not the subject of private ownership, and are reserved
for publicpurposes. The New Civil Code enumerates properties of public dominion in
Articles 420 and 502thereof. Article 402 includes those intended for public use, such as roads,
canals, rivers, torrents,p o r t s a n d b r i d g e s c o n s t r u c t e d b y t h e S t a t e , b a n k s , s h o r e s ,
r o a d s t e a d s , a n d o t h e r s o f s i m i l a r character; and those which belong to the State
without being for public use, and are intended for some public service or for the development
of the national wealth" as property belonging to publicdominion. Article 502 adds "rivers and their
natural beds; continuous or intermittent waters of springsand brooks running in their natural
beds and the beds themselves; waters rising continuously or intermittently on lands of
public dominion; and lakes and lagoons formed by Nature on public landsand their beds; to the
enumeration.Foreshore land is that part of (the land) which is between high and low water and left dry
by the fluxand reflux of the tides; or the strip of land that lies between the high and low water marks
and that isalternately wet and dry according to the flow of the tide. In the present case, since the
inundation of aportion of the land near the lake is not due to flux and reflux of tides, it thus cannot be
considered aforeshore land within the meaning cited by the Director of Lands.While at the time of the
grant of free patent to respondent Morato, the land was not reached by thewater, however, due to
gradual sinking of the land caused by natural calamities, the sea advanceshad permanently invaded a
portion of subject land. As disclosed at the trial, through the testimony of
the court-appointed commissioner, Engr. Abraham B. Pili, the land was under water during high tide inthe month of
August 1978. The water margin covers half of the property, but during low tide, the water is about a kilometer

Salvacion Monsanto vs Deputy Exec Sec

Fulgencio Factoran
On July 12, 2011
00
Pardon Does not Extinguish Civil Liabilities & It is Prospective

Monsanto was the Asst Treasurer of Calbayug City. She was charged for the crime of Estafa through
Falsification of Public Documents. She was found guilty and was sentenced to jail. She was however
granted pardon by Marcos. She then wrote a letter to the Minister of Finance for her to be reinstated to
her former position since it was still vacant. She was also requesting for back pays. The Minister of
Finance referred the issue to the Office of the President and Factoran denied Monsantos request
averring that Monsanto must first seek appointment and that the pardon does not reinstate her former
position. Also, Monsanto avers that by reason of the pardon, she should no longer be compelled to
answer for the civil liabilities brought about by her acts.
ISSUE: Whether or not Monsanto should be reinstated to her former post.
HELD:

EN BANC
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, Petitioner, vs. FULGENCIO S. FACTORAN, JR., Respondent.

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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.
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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.
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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.
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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.
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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
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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
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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. ...
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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).
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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
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Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in
her behalf We gave due course on October 13, 1987.
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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
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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
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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.
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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.
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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
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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
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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.
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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.

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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.
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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.
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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
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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
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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
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A pardon looks to the future. It is not retrospective. 19It 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.
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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
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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, lawabiding citizen.
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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
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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. 24 This must be
constantly kept in mind lest we lose track of the true character and purpose of the privilege.
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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 25although such pardon
undoubtedly restores his eligibility for appointment to that office. 26
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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.
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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.
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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
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WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran,
Jr., dated April 15, 1986, is AFFIRMED. No costs.
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SO ORDERED.
FIRST DIVISION
G.R. No. 87687 December 26, 1989
ISABELO T. SABELLO, petitioner,
vs.
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

GANCAYCO, J.:
In this petition filed by a non-lawyer by reason of alleged poverty, We are called upon to
decide a unique issue of which shall be given more importance the legal technicalities of the
law or the fundamental principles of justice and fairness.
The facts are not in dispute, as follows:
Petitioner, was the Elementary School Principal of Talisay and also the Assistant Principal of the
Talisay Barangay High School of the Division of Gingoog City. The barangay high school was in
deficit at that time due to the fact that the students could hardly pay for their monthly tuition fees.
Since at that time also, the President of the Philippines who was earnestly campaining was
giving aid in the amount of P 2,000.00 for each barrio, the barrio council through proper
resolutions alloted the amount of P 840.00 to cover up for the salaries of the high school
teachers, with the honest thought in mind that the barrio high school was a barrio project and as
such therefore, was entitled to its share of the RICD fund in question. The only part that the
herein petitioner played was his being authorized by the said barrio council to withdraw the
above amount and which was subsequently deposited in the City Treasurer's Office in the name
of the Talisay Barrio High School. That was a grave error on the part of the herein petitioner as it
involves the very intricacies in the disbursement of government funds and of its technicalities.

Thus, the herein petitioner, together with the barrio captain, were charged of the violation of
Republic Act 3019, and both were convicted to suffer a sentence of one year and disqualification
to hold public office. The herein petitioner appealed his case to the Court of appeals, Manila.
The Court of appeals modified the decision by eliminating the subsidiary imprisonment in case
of insolvency in the payment of one-half of the amount being involved. The herein petitioner,
being financially battered, could no longer hire a lawyer to proceed to the highest court of the
land.
Finally, the herein petitioner was granted an ABSOLUTE PARDON by the President of the
Republic of the Philippines, restoring him to 'full civil and political rights.' With this instrument on
hand, the herein petitioner applied for reinstatement to the government service, only to be
reinstated to the wrong position of a mere classroom teacher and not to his former position as
Elementary School Principal I. 1

Petitioner now prays to this Court for the following relief:

1. (that he be) Reinstated to his former position as Elementary School Principal
I;
2. His government services be made continuous since September 10, 1948
which is his original appointment until the present time;
3. (that he be) Given his back salaries corresponding to the period from
September 1, 1971 to November 23,1982;
4. That all his service credits duly earned be restored;
5. And, that all other rights and privileges not mentioned herein shall also be
granted. (Petition, p. 2) 2

The Solicitor General comments that there is no justiciable controversy in this case because
the issue involved is whether or not petitioner merits reappointment to the position he held
prior to his conviction that of Elementary Principal I. The Division of City Schools, Gingoog
City, Region X, Department of Education and Culture, did not act on petitioner's request.
Hence, the present petition.
We believe otherwise. There is here a justiciable controversy. Petitioner claims he must be
restored to the same position he was in before he was convicted on a mere technical error
and for which he was given an absolute pardon.
This is not a hypothetical or abstract dispute. It is not academic or moot for, to our mind, there
is a definite and concrete controversy touching the legal relations of parties having adverse
legal relations. This is a real and substantial controversy admitting of specific relief through a
court decree that is conclusive in character. The case does not call for a mere opinion or
advise, but for affirmative relief .
As a general rule, the question of whether or not petitioner should be reappointed to his
former position is a matter of discretion of the appointing authority, but under the
circumstances of this case, if the petitioner had been unfairly deprived of' what is rightfully his,
the discretion is qualified by the requirements of giving justice to the petitioner. It is no longer
a matter of discretion on the part of the appointing power, but discretion tempered with

fairness and justice.

As to the argument that the Department of Education, Culture and Sports cannot be sued, the
only answer is that its officials can be sued for alleged grave errors in their official acts. Again,
We ignore technicality by considering this a suit against the officials of this government
agency.
Taking into consideration that this petition is filed by a non-lawyer, who claims that poverty
denies him the services of a lawyer, We also set aside the requirement of exhaustion of
administrative remedies and resolved to go direct to the merits of the petition.
In Monsanto vs. Factoran, Jr., 3 this Court held that the absolute disqualification from office or
ineligibility from public office forms part of the punishment prescribed under the penal code
and that pardon frees the individual from all the penalties and legal disabilities and restores
him to all his civil rights. Although such pardon restores his eligibility to a public office it does
not entitle him to automatic reinstatement. He should apply for reappointment to said office.
In the present case after his absolute pardon, petitioner was reinstated to the service as a
classroom teacher by the Department of Education, Culture and Sports.
As there are no circumstances that would warrant the diminution in his rank, justice and
equity dictate that he be returned to his former position of Elementary School Principal I and
not to that of a mere classroom teacher.
However, the Court cannot grant his prayer for backwages from September 1, 1971 to
November 23, 1982 since in Monsanto 4 this Court said he is not entitled to automatic
reinstatement. Petitioner was lawfully separated from the government service upon his
conviction for an offense. Thus, although his reinstatement had been duly authorized, it did
not thereby entitle him to backwages. Such right is afforded only to those who have been
illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the
charge against them.
In the same light, the Court cannot decree that his government service be made continuous
from September 10, 1948 to the present when it is not. At any rate when he reaches the
compulsory age of retirement, he shall get the appropriate retirement benefits as an
Elementary School Principal I and not as a mere classroom teacher.
WHEREFORE, the petition is GRANTED in that the Secretary of the Department of
Education, Culture and Sports and/or his duly authorized representative is hereby directed to
appoint petitioner to the position of Elementary School Principal I or it equivalent, without
pronouncement as to cost. This decision is immediately executory.
SO ORDERED.

FIRST DIVISION

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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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).
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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.
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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.
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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.
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The petition is meritorious.

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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
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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.
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He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of
the Congress. 4
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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.
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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.
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In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency. 5

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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.
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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.

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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.
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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.
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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.
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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.
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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
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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.
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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.
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SO ORDERED.

THIRD DIVISION
[G.R. No. 126481. February 18, 2000]

DR. EMILY M. MAROHOMBSAR, in her Official Capacity as President of the

Mindanao State University, petitioner, vs. COURT OF APPEALS and
BILLANTE G. MARUHOM, respondents.
DECISION
GONZAGA-REYES, J.: HTML
The present petition for review on certiorari seeks to nullify the decision[1] of the Court of
Appeals dated June 11, 1996 in CA-G.R. SP No. 39506 and its subsequent resolution dated
September 9, 1996 denying petitioners motion for reconsideration.
The antecedent facts, as found by the appellate court, are as follows:
Private respondent Billante S. Guinar-Mahurom was appointed as Technical
Assistant assigned to the Office of the Chancellor of the Mindanao State
University sometime in 1988. That appointment was confirmed by the Board of
Regents in its Resolution No. 279, series of 1988, promulgated on November 8,
1988. When the Salary Standardization Law (R.A. 6788) was enacted, private
respondents position was converted into Executive Assistant II. However, since

private respondent at that time was not a Civil Service eligible, she was
extended a temporary appointment duly noted by the Board of Regents
(Resolution No. 1, series of 1991).
When private respondent passed the Civil Service career professional
examinations, she was immediately extended a permanent appointment by then
MSU President Ahmad Alonto, Jr. on May 3, 1991. Private respondent
continued to hold the position until February 15, 1993 when she received the
letter of termination from petitioner Marohombsar after the latter had assumed
office as President of the University (January 5, 1993). The cause of
termination, which was made effective on February 28, 1993, was "in view of the
urgent need to establish a new order and maintain the trust and confidence
reposed upon the Office of the President as demanded by the standards of
Public Service."
Private respondent thereafter sought a reconsideration of her termination but
her request was denied, hence, on April 30, 1993, she filed a complaint for
illegal termination before the Regional Office No. 12 of the Civil Service
Commission.
On May 10, 1993 the Regional Director found the complaint meritorious. It was
noted that private respondents position as Executive Assistant II is a permanent
position and is "covered by the Constitutional guarantee of security of tenure."
Thus, the Regional Director held: yacats
"WHEREFORE, foregoing premises considered, the services of
Mrs. Brillante G. Maruhom as Executive Assistant were illegally
terminated. Accordingly, she should be immediately reverted to
this position with payment of salaries and other benefits that would
have accrued to her during the period she was out of the service."
Despite said ruling, however, private respondent was not reinstated by
petitioner, thereby prompting the former to write to the Regional Director on July
2, 1993 for a "request for an alternative remedy for the immediate reversion of
Ms. Maruhom to her former position and the payment of her salary as Executive
Assistant II, Mindanao University, Marawi City." The Regional Director promptly
responded by issuing a letter-directive on November 5, 1993 ordering herein
petitioner to comply with the order of May 3, 1993 under pain of penal and
administrative sanctions.
On December 6, 1993, petitioner wrote a letter-request for reconsideration of
the May 3, 1993 order to the Regional Director contending that the appointment
of private respondent was not valid for lack of confirmation by the Board of
Regents before it was submitted to the Civil Service Commission for attestation.
On March 21, 1994, the Regional Director referred the case to respondent
Commission and submitted his Report and Recommendation dated March 11,
1994, recommending a reiteration of the earlier directive with the imposition of a

"stern warning xxx that the order of this Commission must be complied with
even if that University may not agree with it" (Report of Investigation, Annex "B",
p. 69, Rollo).
On June 22, 1994, petitioner was ordered by the CSC Legal Office to submit her
comment to the Report and Recommendation submitted by the Regional
Director. Petitioner complied on August 17, 1994.
Respondent Commission, on December 13, 1994, resolved the case in favor of
private respondent. The dispositive portion of its decision reads: CODES
"WHEREFORE, the Commission hereby directs the President of
the Mindanao State University to explain within five (5) days from
receipt of this Order why he should not be charged for not
reinstating Billante S. Guinar-Maruhom as Executive Assistant II
and for not paying her salaries and other benefits from the time of
the termination of her services up to her reinstatement."
In compliance with said directive, petitioner submitted her comment contending
that her letter-request for reconsideration of the Regional Directors order is still
pending and, therefore, she has no obligation to comply with the order of
reinstatement yet; that besides, private respondents appointment is not valid for
lack of confirmation by the Board of Regents and that even if valid, private
respondents appointment was confidential and, therefore, co-terminus with the
term of office of then MSU President Alonto.
On October 17, 1995, respondent Commission issued Resolution No. 95-6446
and held:
The contention that the tenure of Maruhom as Executive Assistant
II is coterminous with the term of office of then MSU President
Alonto, the one who appointed her, must be rejected. There is no
showing that said position has been declared as primarily
confidential in nature by the Commission pursuant to its authority
under the Administrative Code of 1987. In the absence of such
declaration, the position is thus considered under the career
service. Hence, an appointee who holds an appointment thereto
under permanent status enjoys security of tenure as guaranteed
by law. Thus, she could not be separated from the service except
for cause and after due process.
WHEREFORE, MSU President Emily M. Marohombsar is hereby
directed to immediately reinstate Billante G. Maruhom to her
former position of Executive Assistant II and to pay all her back
salaries and other benefits due her from the date of her separation
up to the date of her reinstatement in the service. Further failure or
defiance on the part of said official to do what is required, will be
considered contempt of this Commission and grounds for

administrative sanctions."[2] olanski

It is patent from the foregoing recital that private respondent was first appointed Technical
Assistant in 1988 and the MSU Board of Regents (BOR) confirmed her appointment per its
Resolution No. 279, s. 1988. The position title was subsequently reclassified and retitled to
Executive Assistant II upon the effectivity of Republic Act 6758, otherwise known as the
Salary Standardization Law. Since private respondent did not possess the appropriate civil
service eligibility required of the position at that time, she was only extended a temporary
appointment as Executive Assistant II which was noted by the MSU Board of Regents.
Subsequently, upon acquiring Career Service Professional Eligibility, she was extended a
permanent appointment to the position of Executive Assistant II by then MSU President
Ahmad E. Alonto, Jr. on May 3, 1991. This appointment was approved as permanent by the
Civil Service Commission Regional Office No. 12 on June 25, 1991. She assumed office and
discharged the duties thereof, without any objection from the Board of Regents. When MSU
President Alonto was replaced by herein petitioner Dr. Emily M. Marohombsar on January 5,
1993, private respondent continued her employment and received the corresponding salary
and other benefits from the MSU until she was summarily terminated on February 28, 1993.
The Civil Service Commission declared her termination as illegal and ordered the payment of
all her back salaries and other benefits due her from the date of her separation up to the date
of her reinstatement in the service.
On appeal, the Court of Appeals affirmed the Order [3] dated December 13, 1994 of the Civil
Service Commission (CSC) as well as the latters Resolution No. 956446 [4] dated October 17,
1995. From the decision of the Court of Appeals and after its motion for reconsideration had
been denied, petitioner Dr. Emily M. Marohombsar (in her official capacity as President of the
Mindanao State University) filed the present petition on the ground that the Court of Appeals
erred in declaring that private respondents termination was illegal; and in ordering the
payment of back salaries and other benefits from the date of private respondents separation
up to the date of her reinstatement in the service. The reasons advanced to support the
instant petition are briefly stated as follows: 1) Private respondents appointment as Executive
Assistant II dated May 3, 1991 lacks the requisite confirmation by the Board of Regents
pursuant to the Mindanao State University (MSU) charter and code, hence, ineffective; 2)
Private respondents position as Executive Assistant II is primarily confidential, hence,
coterminous with the term of office of the appointing authority. [5]
We find no merit in the petition and hold that the same should be denied.
The power to appoint is vested in the Board of Regents upon the recommendation of the
President as follows:
"Section 6. The Board of Regents shall have the following powers and duties, in
addition to its general powers of administration and the exercise of the powers
of the corporation: haideem
xxx......xxx......xxx
(e) To appoint on the recommendation of the President of the University,
professors, lecturers and other employees of the University. x x x " [6]

The MSU Code of Governance reiterates the power of the President to recommend qualified
persons to the Board of Regents to fill vacancies and new positions as follows:
ART. 41. General Powers of the President:
xxx......xxx......xxx
(g) He shall recommend qualified persons to fill vacancies and new positions
created and funded by the Board; provided, that such appointment shall be
submitted in the next regular meeting of the Board; Provided Further, that no
payment of salary shall be effected unless approved by the Board of Regents. [7]
Based on the foregoing, petitioner correctly theorizes that private respondents appointment
was merely ad interim considering the appointment was issued by the University President
rather than the MSU Board of Regents prior to submission to the Civil Service Commission for
attestation. Petitioner, however, errs in concluding that an ad interim appointment is invalid
and ineffective, therefore, terminable at any time and for any cause. kirsten
The essence of ad interim appointments has been sufficiently discussed in Pamantasan ng
Lungsod ng Maynila vs. Intermediate Appellate Court [8] where the universitys charter similarly
vests the power of appointment in the Board of Regents and the power to recommend in the
President. It was therein held that under Philippine law and jurisprudence, an ad interim
appointment is used to denote the manner in which the appointment is made; and it is not
descriptive of the nature of the appointment given to the appointee. [9] By way of illustration,
the Court stated in said case that "it is an appointment done by the President of the
Pamantasan in the meantime, while the Board of Regents, which is originally vested by the
University charter with the power of appointment, is unable to act." [10] As further explained by
the Court in said case:
"In other words, if the Board of Regents is in session, the Pamantasan President
merely nominates while the Board issues the appointment. But when the Board
is not in session, the President is authorized to issue ad interim appointments.
Such appointments are permanent but their terms are only until the Board
disapproves them. If confirmed, the appointees term is converted into the
regular term inherent in the position." [11]
There is no question then, as petitioner herself theorizes, that private respondents
appointment was ad interim having been issued by the President instead of the Board of
Regents. The issue at this point is whether an employee holding an ad interim appointment
may be terminated at any time and for any cause as advanced by petitioner.
We rule in the negative. barth
We have already mentioned that an ad interim appointment is not descriptive of the nature of
the appointment, that is, it is not indicative of whether the appointment is temporary or in an
acting capacity, rather it denotes the manner in which the appointment was made. In the
instant case, the appointment extended to private respondent by then MSU President Alonto,
Jr. was issued without condition nor limitation as to tenure. The permanent status of private

respondents appointment as Executive Assistant II was recognized and attested to by the

Civil Service Commission Regional Office No. 12. Petitioners submission that private
respondents ad interim appointment is synonymous with a temporary appointment which
could be validly terminated at any time is clearly untenable. Ad interim appointments are
permanent but their terms are only until the Board disapproves them. [12] There is absolutely
no showing that the Board of Regents disapproved private respondents appointment. On the
contrary, private respondent assumed the position, discharged her duties and received the
corresponding salary and benefits without objection from the MSU Board of Regents from the
date of her appointment on May 3, 1991 or for a period of almost two (2) years until her
dismissal effective February 28, 1993. It is worth mentioning that the MSU Code of
Governance provides that "(n)o payment of salary shall be effected unless approved by the
Board of Regents."[13] Considering that private respondent was paid her corresponding salary
and benefits for almost two (2) years from her appointment as Executive Assistant II up to her
termination, the Board of Regents may be deemed to have tacitly approved her appointment.
Petitioners other contention that private respondents position as Executive Assistant II is
classified as primarily confidential and is thus co-terminous with the tenure of office of the
appointing official must likewise be rejected. In support thereof, petitioner cites Memorandum
Circular (MC) No. 13, s. 1990 and MC No. 1, s. 1993 of the Civil Service Commission
allegedly declaring the said position as primarily confidential. The portion of MC No. 13, s.
1990 referred to by petitioner reads thus:
"Considering that the appointee to said position will be performing duties which
will require absolute trust and confidence of the Undersecretary, the
Commission has declared as primarily confidential in nature pursuant to
Resolution No. 93-073 the position of Executive Assistant, Chauffeur/Driver and
all other positions located in the Office of the Undersecretary per approved
Position Allocation List. Hence, the term of office of the appointees therein shall
be coterminous with the official they serve."
On the other hand, the portion of MC No. 1, s. 1990 relied upon by petitioner reads as follows:
"Pursuant to CSC Resolution No. 90-261 dated March 5, 1990, the position of
Head Executive Assistant has been declared as primarily confidential in nature.
The term of office of the appointees to said position becomes coterminous with
that of the appointing authority. In cases where the executive being assisted is
not the appointing authority, the term of office of the Head Executive Assistant
shall be dependent upon the formers recommendation." Jksm
Both MCs are not applicable to the instant case. MC No. 01, s. 1993 refers to Executive
Assistant, Chauffeur/Driver and other positions located in the Office of the Undersecretary as
clearly provided in the subject heading thereof as follows:
"SUBJECT: Declaration of the Executive Assistant, Chauffeur/Driver and all
other positions located in the office of the Undersecretary as primarily
Confidential in Nature."

Herein private respondent is holding the position of Executive Assistant II in the Office of the
Chancellor. On the other hand, MC No. 01, s. 1990 clearly refers to Head Executive Assistant
and not Executive Assistant II.
On this score, the appellate court correctly ruled thus:
"There is nothing in the records that would indicate any justification for the
respondent Commission to classify the position of private respondent as
primarily confidential. Petitioner failed to specify the particular duty of private
respondents that would classify her position as highly confidential. Petitioner
merely invoked CSC memorandum Circular No. 1, s. 1993, which classified the
position of Executive Assistant as primarily confidential in nature. However, that
memorandum circular exclusively refers to Executive Assistants assigned in the
office of Undersecretaries and not to University Presidents or Chancellors. Such
reliance on the art of petitioner is, therefore, misplaced. In any event, even if
reliance is made on said circular, private respondents case still would not fall
under such classification since it was categorically stated in the circular that
those incumbents to the reclassified positions whose appointments are
permanent" "shall retain their permanent status until said positions are vacated"
(CSC memorandum Circular No. 1, s. 1993).[14]
Based on the foregoing, private respondent holds an appointment under permanent status
and thus enjoys security of tenure as guaranteed by law. As an employee in the civil service
and as a civil service eligible, private respondent is entitled to the benefits, rights and
privileges extended to those belonging to the service. Private respondent could not be
removed or dismissed from the service without just cause and without observing the
requirements of due process as what happened in the present case. [15] Inescapable then is
the conclusion that private respondent was illegally dismissed when she was summarily
terminated from the service by mere letter on the alleged ground of "urgent need to establish
a new order and maintain the trust and confidence reposed upon the Office of the President x
x x." Chiefx
However, according to settled jurisprudence, an illegally terminated civil service employee is
entitled to back salaries limited only to a maximum period of five years [16] and not full back
salaries from her illegal termination up to her reinstatement.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals is
AFFIRMED subject to the modification in the payment of back salaries as stated above.
SO ORDERED.

EN BANC
[G.R. No. 146873. May 9, 2002]

REMEDIOS PASTOR, petitioner, vs. CITY OF PASIG, MAYOR VICENTE EUSEBIO, THE
COURT OF APPEALS (15th Division), and the CIVIL SERVICE COMMISSION, respondents.
DECISION
MENDOZA, J.:

Petitioner Remedios Pastor is Budget Officer of the Municipality (now City) of Pasig. In 1992, she
was reassigned to the Office of the Municipal Administrator pending investigation of reports against
her concerning the issuance of Advice of Allotments by her. In 1995, after three years with no case
filed against her, she asked for reinstatement to her former position. But she was instead reassigned to
another unit of the now city government. Upon her complaint, the Civil Service Commission ordered
her reinstatement as Budget Officer of the City of Pasig. However, on appeal of the city government,
the Court of Appeals set aside the decision of the Civil Service Commission (CSC). Hence this petition
for certiorari.
The question is whether the decision of the Court of Appeals should be set aside and that of the CSC
reinstated. We answer the question in the affirmative.
The facts are as follows:
Petitioner Remedios Pastor was appointed Budget Officer of the then Municipality (now City) of Pasig
on May 1, 1986. Her appointment was confirmed by the Department of Budget and Management on
July 17, 1987.
On July 6, 1992, the newly-elected Mayor of Pasig, Vicente P. Eusebio, issued a memorandum
relieving petitioner from her position as Municipal Budget Officer and reassigning her to the Office of
the Municipal Administrator of Pasig. The Mayors order stated:
In view of the adverse report of the Committee on Budget that you issued Advice of Allotments
without sufficient cash collections and pending thorough investigation there[on], you are hereby
relieved of your position as Municipal Budget Officer and temporarily detailed [sic][1] with the Office
of the Municipal Administrator.
Upon receipt hereof, you are hereby directed to turn over all records, properties, and responsibilities to
MR. EDENISON FAINSAN who is hereby designated as Officer-In-Charge, Municipal Budget
Officer.
In this connection, you are hereby ordered to report to the Office of the Municipal Administrator for
temporary assignment.
This order is issued in the interest of public service and shall take effect immediately.[2]
On March 6, 1995, Mayor Eusebio issued another memorandum (Memorandum Order No. 06-95)
directing petitioner to conduct an in-depth evaluation/study of the operations of the Pasig City Hall
Annex.[3]

Alleging that since her relief as Budget Officer, no investigation had been conducted regarding the
charge that she had issued Advice of Allotments without sufficient cash collections, petitioner filed on
October 20, 1995 a complaint with the CSC.[4] She contended that her protracted detail to the Office
of the City Administrator and the deletion of her name from the payroll for the City Budget Office for
the period October 1-15, 1995 were in violation of Civil Service laws, rules, and regulations and that
they constituted oppression and abuse of authority on the part of Mayor Eusebio. Petitioner prayed for
her reinstatement as City Budget Officer of Pasig and for an order enjoining Mayor Eusebio from
designating another person to that petition.
On December 6, 1995, Pasig City Administrator Atty. Reynaldo P. Dionisio issued a memorandum
directing petitioner in the exigency of the service, in addition to your present duties, to [conduct a]
study on how to improve budgeting and disbursement procedures of city funds, as well as [a] study on
how to enhance the revenue of the city in preparation [for] the adverse effects of the Supreme Court
Ruling on Realty Tax against the City of Pasig.[5]
In his comment[6] on petitioners complaint before the CSC, respondent City Mayor alleged, among
other things, that petitioner had been reassigned to the Office of the Municipal (now City)
Administrator in view of her long years of experience in finance and [that she had been] tasked to
conduct studies best suited to her qualifications; that instead of being suspended for issuing Advice of
Allotments without sufficient cash collections, she was reassigned for her professional productive
growth [and for the benefit] of the city; that her reassignment was in the best interest of the service
and did not involve any diminution of salary or rank as a department head; and that the deletion of
petitioners name from the payroll for October 15, 1995 was due to a management directive that every
personnel should be in the payroll of actual office assignment and that in fact petitioner received her
salary for that period and continued to receive the salary and benefits attached to her position.
In its Resolution No. 96-1190, dated February 5, 1996, the CSC ordered:
WHEREFORE, the appeal of Remedios Pastor is hereby found meritorious. She should already be
returned to her former position or assigned to an office where she can perform as head of a department.
[7]

The CSC held that, while petitioners reassignment was originally made in the exigency of the service
without reduction in her rank, status, or salary, respondent City Mayor failed to advance sufficient
reason to warrant petitioners continuous reassignment for more than three years which appears too
long for one to conduct the study assigned to her.
Respondent City of Pasig did not ask for reconsideration of Resolution No. 96-1190. Instead,
apparently in compliance with the same, it designated petitioner head of the Pasig City Hall Annex,
Karangalan, Pasig City. But petitioner was not satisfied. She asked the CSC for a clarification of its
Resolution. She alleged that there was no position of Head of Pasig City Hall Annex in the plantilla
of the city government nor an ordinance creating the Office of Pasig City Hall Annex which, she
claimed, was in fact just a small bungalow-type building located at Karangalan Village, Barangay
Manggahan, Pasig City, manned by one (1) representative each from about five (5) departments who
report directly to their respective Department Heads at the Pasig City Hall. Hence, there was really
nothing for her to oversee.

In its Resolution No. 97-2845,[8] dated May 20, 1997, the CSC found petitioners reassignment to the
Pasig City Hall Annex to be not in compliance with its decision. It held that the so-called Pasig City
Hall Annex was not a department of the City Government of Pasay but a mere extension of the City
Hall. The CSC also cited the fact that under Municipal Ordinance No. 01-92 of the City, it was the
Vice-Mayor who was Officer-in-Charge of the extension office. The CSC ordered further
reassignments of petitioner to other offices be stopped since [she] has been out of her official station
as Budget Officer for such a long time.
Respondent Mayor Eusebio moved for a reconsideration, arguing that (1) the Pasig City Hall Annex
was, for all intents and purposes, a department of the Pasig local government and (2) Municipal
Ordinance No. 01-92 had been amended and now provides that the officer-in-charge of the Pasig City
Hall Annex shall be either the Vice-Mayor or a department head or official of equivalent rank.[9] His
motion was denied, however, by the CSC in its Resolution No. 99-0200.[10] The CSC held that the
position of Head of the Pasig City Hall Annex was not equivalent to the position of City Budget Officer
because the Annex was not a line department.
Petitioner then wrote Mayor Eusebio informing him of her intention to resume her duties as City
Budget Officer.[11] She was advised, however, to wait because the city government intended to appeal
the decision of the CSC.[12]
Respondent City of Pasig then filed with the Court of Appeals a petition, denominated for writ of
certiorari, under Rule 43 of the 1997 Rules of Civil Procedure, impleading only the Civil Service
Commission as respondent. On January 15, 1999, the appeals court rendered a decision,[13] the
dispositive portion of which reads:
WHEREFORE, the assailed Resolution (No. 99-0200) of the Civil Service Commission dated January
15, 1999 is SET ASIDE and RECALLED.
The appeals court held that petitioners reassignment, first to the Office of the Municipal (now City)
Administrator and later as head of the Pasig City Hall Annex, was a valid exercise of the extraordinary
powers of the respondent City Government. It pointed out that the reassignment to the Office of the
Municipal Administrator was only temporary in nature and that, in designating petitioner as head of
the City Hall Annex, the city government had substantially complied with Resolution No. 96-1190 of
the CSC:
The City Hall Annex was a creation of Municipal Ordinance (No. 01-92) dated January 22, 1992 to
bring the services of the government expeditiously and efficiently to the residents of Manggahan, Dela
Paz, and Santolan, Pasig City. There was no reduction of [petitioners] rank, status, or salary. The
officer-in-charge shall either be the Vice-Mayor [or] a department head or official of equivalent rank
(Ordinance No. 22, Series of 1997. See: Annex D) It is, according to [respondents], a small version
of the Pasig City Hall. [Petitioners] power was that of a department head exercising general
supervision, direction, and control over the operations of the postal services, library, Office of the Civil
Registry, Police Headquarters, Offices of the Treasurer and Assessor, Engineering and Building Office
[and the] Community Relation and Information Office. She was to oversee the payment of
fees/revenues and communication facilities, and provided with sufficient funds for its operation and
maintenance. (Municipal Ordinance No. 01-92, Annex E, Petition) [Respondents] therefore had
advanced sufficient reasons to warrant [petitioners] assignment as head of the Pasig City Hall Annex
in Manggahan, Pasig City pursuant to resolution No. 96-1190.[14]

On January 29, 2001, the Court of Appeals denied the CSCs motion for extension of time to file a
motion for reconsideration on the ground that the same is not allowed under its internal rules.[15]
Petitioner filed this petition alleging that
I.
THE RESPONDENT APPELLATE COURT HAS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT HAD
TAKEN COGNIZANCE AND PASSED JUDGMENT ON THE CIVIL SERVICE COMMISSIONS
ORDER PARTICULARLY CSC RES. NO. 990200, WHICH WAS A MERE CLARIFICATORY
ORDER OF CSC RESOLUTION NO. 961190 WHICH HAD LONG ATTAINED FINALITY AND
EXECUTORY CHARACTER AFTER THE LAPSE OF THE 15-DAY REGLEMENTARY PERIOD
AND NO [MOTION FOR] RECONSIDERATION WAS EVER FILED BY THE RESPONDENT
CITY OF PASIG - AND THUS FAILED TO CONSIDER THE LATTERS OBLIGATION
(COMPELLABLE BY MANDAMUS) TO COMPLY WITH THE SUBJECT CSC RESOLUTIONS.
II.
THE RESPONDENT APPELLATE COURT HAS COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT FAILED TO CONSIDER THAT THE RESPONDENT CITY OF PASIG
NOT BEING THE PERSON ADVERSELY AFFECTED [BY] THE CSC RESOLUTION NO. 961190
AND OTHER CLARIFICATORY RESOLUTIONS HAS NO RIGHT NOR PERSONALITY TO
APPEAL AND/OR ASSAIL VIA CERTIORARI IN SAID CA-G.R. S.P. NO. 51098 ASSAILING
THE CSC RESOLUTIONS/ORDER FOR THE REINSTATEMENT OF THE HEREIN PETITIONER
TO HER PREVIOUS POSITION AS CITY BUDGET OFFICER.
III.
WITHOUT PREJUDICE TO GROUND NO. 2, ABOVE STATED, THE RESPONDENT
COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION WHEN IT DID NOT DISMISS RESPONDENT
CITY OF PASIGS PETITION IN C.A. G.R. S.P. NO. 51098 FOR FAILURE TO IMPLEAD
AND/OR EVEN JUST FURNISH A COPY TO THE HEREIN PETITION OF THEIR SAID
PETITION DESPITE THE FACT THAT PETITIONER IS A NECESSARY AND INDISPENSABLE
PARTY [WHICH CONSTITUTES] A GROSS VIOLATION OF DUE PROCESS. [16]
Petitioner prays that the decision of the Court of Appeals be set aside and that a writ of mandamus be
issued for the enforcement of CSC Resolution Nos. 96-1190, 97-2845, and 99-0200.
The Court finds for petitioner Remedios Pastor.
Appeals from the decisions or final orders of the Civil Service Commission to the Court of Appeals
should be by a petition for review pursuant to Rule 43 of the 1997 Rules of Civil Procedure. As
provided by 5 thereof, a copy of the petition should be served on the adverse party and on the Civil
Service Commission. Section 6(a) provides that the petition should state the full names of the parties to
the case without impleading the Civil Service Commission either as petitioner or respondent. Section 7
provides that the failure of the petitioner to comply with any of the foregoing requirements regarding
proof of service and the contents of the petition is a sufficient ground for the dismissal of the same.
The petition for writ of certiorari filed by respondent city government should therefore have been
dismissed for its failure to implead petitioner as the adverse party and to serve a copy of the petition on
her.

We do not agree with petitioners contention, however, that respondent City of Pasig did not have the
requisite personality to file the petition in the Court of Appeals. Petitioner cites our ruling in
University of the Philippines v. Civil Service Commission[17] in support of her counterclaim that the
phrase party adversely affected in P.D. No. 807, 39[18] refers only to the person or the respondent
employee against whom the administrative disciplinary case is filed.
Petitioners contention is without merit. The ruling cited, first made in Paredes v. Civil Service
Commission,[19] does not apply since it refers to administrative disciplinary cases, which this case is
not. Moreover, said ruling has already been modified in Civil Service Commission v. Dacoycoy,[20] so
that appeal now lies from a decision exonerating a civil service employee of administrative charges.
We turn now to the merits of the case. Book V, Title I, Subtitle A, 26(7) of Executive Order No. 292,
otherwise known as the Administrative Code of 1987, provides:
Reassignment. An employee may be reassigned from one organizational unit to another in the same
agency: Provided, That such reassignment shall not involve a reduction in rank, status, or salary.
It has been held that a reassignment that is indefinite and results in a reduction in rank, status, and
salary is in effect a constructive removal from the service.[21] In this case, contrary to the ruling of the
Court of Appeals, petitioners reassignment to different offices in the local government of Pasig City is
indefinite. Petitioner has been on virtual floating assignments which cannot but amount to a diminution
of her rank, hence impermissible under the law.[22] As already noted, her reassignment began in 1992
with her detail to the Office of the (now) City Administrator pending investigation of reports that she
had issued Advice of Allotments without sufficient cash collections. However, no investigation
appears to have ever been conducted on the said charge. To justify her continuing reassignment,
respondent City Mayor claimed that the same was due to petitioners long years of experience in
finance which especially fitted her for studies regarding the citys revenues.
A similar justification was invoked in Gloria v. Court of Appeals[23] for the reassignment of Dr.
Bienvenido Icasiano, Superintendent of the Division of City Schools of Quezon City as Vocational
School Superintendent of the Marikina Institute of Science and Technology. It was contended that the
reassignment would best fit his qualification and experience as an expert in vocational and technical
education. Considering the reason given for the reassignment, it was held that the same was more
than [merely] temporary and hence violative of Dr. Icasianos security of tenure.
For the same reason, petitioners reassignment to various offices should be considered more than
merely a temporary one. For all intents and purposes, her reassignment, lasting nearly ten years now, is
a removal without cause as Budget Officer of the City of Pasig. Indeed, her duties in her new
assignment as head of the Pasig City Hall Annex
1.
Oversee the operation of all units in the City Hall Annex and submit weekly accomplishment
reports to the City Mayor;
2.
Institute measures to improve collections of all income-generating units and submit periodic
progress reports with specific recommendations to the City Mayor through the City Administrator;

3.
Prepare and submit the annual budget of City Hall Annex for inclusion in the regular city
budget;
4.

Prepare a sound personnel program to promote careerism and staff development; and

5.

Perform other duties that may be assigned by the City Mayor or Ordinance[24]-

show the more than temporary nature of her reassignment.

That she has suffered a diminution in her rank is also evident. Under 30 of the Charter of the City of
Pasig,[25] her duties and functions as City Budget Officer are to:
(c) . . . take charge of the City Budget Office, and . . .
(1) Prepare forms, orders, and circulars embodying instructions on budgetary and appropriation matters
for the signature of the city mayor;
(2) Review and consolidate the budget proposals of different departments and offices of the City;
(3) Assist the city mayor in the preparation of the budget and during budget hearings;
(4) Study and evaluate budgetary implications of proposed legislation and submit comments and
recommendations thereon;
(5) Submit periodic budgetary reports to the Department of Budget and Management;
(6) Coordinate with the city treasurer, the city accountant, and the city planning and development
coordinator for the purpose of budgeting;
(7) Assist the sangguniang panlungsod in reviewing the approved budgets of component barangays of
the City;
(8) Coordinate with the city planning and development coordinator in the formulation of the
development plan of the City; and
(9) Perform such other duties and functions and exercise such other powers as provided for under
Republic Act No. 7160, otherwise known as the Local Government Code of 1991, and those that are
prescribed by law or ordinance.
In contrast, as head of the Pasig City Hall Annex, petitioners budget proposals for the same will be
subject to review by the City Budget Officer. Moreover, the position of City Budget Officer is created
by statute, while that of the head of the Pasig City Hall Annex is created by mere ordinance.
We agree with the CSC that petitioner should now be returned to her original position for her indefinite
detail to other positions would amount to her removal without cause from the position to which she has
been permanently appointed. As we said in Cruz v. Navarro:[26]

There is no question that we recognize the validity and indispensable necessity of the well established
rule that for the good of public service and whenever public interest demands, [a] public official may
be temporarily assigned or detailed to other duties even over his objection without necessarily violating
his fundamental and legal rights to security of tenure in the civil service. But as we have already
stated, such cannot be undertaken when the transfer of the employee is with a view to his removal
and if the transfer is resorted to as a scheme to lure the employee away from his permanent position
because such attitude is improper as it would in effect result in a circumvention of the prohibition
which safeguards the tenure of office of those who are in the civil service.
WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is
SET ASIDE. Respondent City of Pasig is ordered to forthwith REINSTATE petitioner Remedios
Pastor to her original position as Budget Officer of the City of Pasig.
SO ORDERED.

EN BANC
G.R. No. 88183 October 3, 1990
ISABELO J. ASTRAQUILLO, petitioner,
vs.
RAUL MANGLAPUS, THE BOARD OF FOREIGN SERVICE ADMINISTRATION (Manuel T.
Yan, Jose D. Ingles, * Rosalinda V. Tirona Ernesto Garrido, Felipe Mabilangan, Jorge
Coquia, Edgardo Kalaw, Federico Macaranas, Purificacion Quisumbing, ** Israel
Bocobo, Faustino David, members), and DONATO FELICIO, respondents.
G.R. No. 88467 October 3, 1990
ALUNAN C. GLANG petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign Affairs, respondent.
G.R. No. 88672 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign Affairs; Undersecretary of Foreign Affairs
and Chairman of the Board of Foreign Service Administration MANUEL T. YAN; FELIPE
MABILANGAN, Coordinator of the BFSA; ROSALINDA V. TIRONA, Director General of
the Office of Personnel Administration; ERNESTO GARRIDO, Director General of
Financial Management Services; JORGE COQUIA, Legal Adviser; all members of
BFSA; and CATALINO MACARAIG, JR., Executive Secretary, respondents.

G.R. No. 88781 October 3, 1990

ISABELO J. ASTRAQUILLO, petitioner,
vs.
FORTUNATO D. OBLENA, respondent.
G.R. No. 88916 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
JUAN SAEZ, respondent.

NARVASA, J.:
As the caption indicates, this decision deals with five cases. The cases have been
consolidated and jointly considered because they all turn upon a common legal issue, i.e., the
validity of the termination, by authority of the President of the Philippines, of the petitioners'
appointments as "political" or "non-career" members of the country's Foreign Service. Stated
otherwise, the common issue is whether or not their service as Philippine diplomats was
under the circumstances, at the pleasure of the president, terminable without cause or need
of investigation.
G.R. Nos. 88183 and 88781: Isabelo Astraquillo
Astraquillo was appointed by the President of the Philippines on July 22,1986 as Ambassador
Extraordinary and Plenipotentiary and Chief of Mission (II) to the United Arab Emirates (UAE).
1
After he had occupied the post for two years or so, a confidential memorandum was filed
with the Home Office by Atty. Roy Seneres, the Philippine Labor Attache to the United Arab
Emirates, accusing Astraquillo, his wife and cousin-in-law of improper interference with his
(Seneres') functions. 2 On instructions of the Board of Foreign Service Administration (BFSA)
the matter was investigated by Ambassador Pacifico Castro from March 28, to 31, 1989. 3
Thereafter, by Memorandum dated April 11, 1989, the Secretary of Foreign Affairs
recommended to the President the termination of Astraquillo's services as ambassador. The
recommendation was "APPROVED by authority of the President." 4 Astraquillo was then
notified (on April 18, 1989) of the termination of his services effective immediately, 5 and (on
May 8,1989) of the designation of Counsellor Donato Felicio as Charges D'Affaires effective
May 17, 1989. 6
Astraquillo sought and obtained from the Secretary of Foreign Affairs an extension of his
services up to May 31, 1989. 7 But on the same day that the telex message extending his
services was transmitted, May 12, 1989, Astraquillo filed the petition for certiorari at bar,
challenging his removal from his post and the designation of Felicio as Charges D'Affaires.
This was docketed as G.R. No. 88183. After Ambassador Fortunato D. Oblena was appointed
to replace him as the country's Ambassador Extraordinary and Plenipotentiary to the UAE,
Astraquillo filed with this Court a petition for quo warranto contesting the appointment. This
second case was docketed as G.R. No. 88781.

His basic thesis is that the Foreign Affairs Secretary had no power qua department head, and
without prior authorization of the President, to terminate his services, he being a presidential
appointee; and under the Foreign Service Code of 1983, his removal could be predicated only
upon good cause duly established at a hearing of which he was entitled to notice and an
opportunity to defend. Corollarily, designation of a replacement for him, either in a temporary
or permanent capacity, was also nun and void.
G.R. No. 88467: Alunan C. Glang
Alunan Glang was appointed by President Aquino on September 11, 1986 as Ambassador
Extraordinary and Plenipotentiary and Chief of Mission (Class I) to Kuwait, 8 and assumed his
post on January 11, 1987. 9
Two years afterwards, or on May 27, 1989, he received a telex message from the Secretary
of Foreign Affairs informing him that his services as ambassador and chief of mission to
Kuwait had been terminated and directing him to vacate his post "on or before June 30,
1989." 10 The message further advised that the termination of his services was "explicit in a
Memorandum dated 18 May 1989" a copy of which would be furnished him by telefax. The
memorandum referred to was one signed by Secretary Raul Manglapus recommending the
"recall and subsequent termination of the services of Ambassador Alunan C. Glang as
Ambassador to the State of Kuwait . . . which was approved by Executive Secretary Catalino
Macaraig, Jr. "BY AUTHORITY OF THE PRESIDENT." 11
On May 30, 1989 Glang sent communications separately addressed to the Office of the
President and the Secretary of Foreign Affairs stating that he considered his separation from
the service as "illegal and violative of RA No. 704, known as the Foreign Service Act of 1952,"
as amended, he being entitled to security of tenure and removable only for cause and not at
the pleasure of the President. 12 The Foreign Secretary's reply (sent by telex on June 2, 1989)
was prompt and simple: the notice of termination of Glang's services "dated 26 May 1989,
stands;" he should "accept the President's decision" and seek redress "only through the
proper courts of law" if he felt he had been "unlawfully treated." 13
Glang thereupon filed the petition for certiorari and prohibition at bar. For relief, he relies upon
substantially the same arguments as those advanced by Astraquillo, supra. 14
G.R. Nos. 88672 and 88916: Alejandro Melchor, Jr.
Alejandro Melchor, Jr. was also appointed by President Aquino Ambassador Extraordinary
and Plenipotentiary on June 27, 1986. 15 On July 3, 1986, Vice-President Salvador H. Laurel,
then Foreign Affairs Minister, assigned him to Moscow, U.S.S.R. 16 This post Melchor
assumed on September 4, 1986, 17 after which he received another appointment from the
President on October 15, 1986 as Chief of Mission, Class, 1. 18
On July 25, 1988, seven (7) officers and employees of the Philippine Embassy in Moscow 19
filed a complaint with the Department of Foreign Affairs against Melchor and two others 20 for
"acts inimical to the Foreign Service, in violation of the Foreign Service Code (and) blatant
disregard of COA rules and regulations and the Civil Service Code." 21 The complaint was
investigated by Ambassador Ernesto Garrido, Director General for Financial Management

Services of the Foreign Affairs Department, by direction of the Secretary. 22 Garrido's report to
the Board of Foreign Service Administration (BSFA) of the Foreign Affairs Department dealt
with ten of the fourteen (14) charges but failed to resolve four (4) others. 23 Said Board, after
deliberating on the report, directed the filing of a charge sheet against Melchor relative to the
four (4) unresolved accusations as to which the latter had filed no written answer; 24 and
accordingly, the Director General for Personnel and Administrative Services formally charged
Melchor, under date of January 2,1989, with the following offenses, to wit: 25
1) establishment of a private restaurant on the third floor of the Philippine Embassy Building
without prior notice and approval of the Home Office;
2) issuance of visas to persons not qualified to travel to the Philippines;
3) appointment and accreditation of Hernani Jover and Donato de Guzman as Counsellors
contrary to existing laws; and
4) leaving his post without permission from the Home Office from October to December 1987
and January 22-26, 1988.

By letter dated January 10, 1989, Melchor told the Foreign Affairs Secretary there was "no
basis for me to reply under oath" (to the charges as required) as "said complaint has not been
subscribed and sworn to according to the provisions of P.D. 807," drawing attention, however,
to his reply "to the complaint on 22 September 1988 Dispatch No. AM-193-88, Subject:
Comments to complaint." 26 He also wrote to President Aquino on the same date regarding the
"unfounded charges" against him and requesting that the matter be resolved before his return
to his post. 27 He wrote another letter to President Aquino, dated January 19, 1989, this time
under oath, inter alia submitting his answers to the four unresolved charges against him
since, according to him, "it is only the President that can decide my case." 28 Melchor's letter
was referred to the Secretary 29 who, acting thereon, issued Memorandum No. 4230 declaring
his approval of the BFSA recommendation that Melchor: (a) be allowed to forthwith return to
his Moscow post to prepare for the President's state visit, (b) be thereafter transferred to
another post, and (c) be reprimanded on account of the four charges against him. 30
The affair was, however, far from ended. On February 10, 1989, Melchor advised the
Secretary in writing that he would indeed return to Moscow but protested the reprimand
administered to him and his announced transfer to another post after the state visit, claiming
that as a "presidential appointee," he was beyond the disciplinary authority of the BFSA and
that, furthermore, he had been denied due process. 31 On the same day he directed an
"APPEAL" to the President praying that she "nullify, after review by an impartial body . . . the
illegal action of Sec. Manglapus and the Board and return . . . (him to his) post in Moscow
without the stigma of a reprimand . . . ." 32
It appears that the BFSA re-examined the evidence against Melchor and came to the
conclusion that all charges against him should be dropped as there was "no basis" therefor
and consequently, his appeal had been rendered moot and academic. 33 This was
communicated to the Foreign Affairs Secretary on June 9, 1989 and thence to the Office of
the President, with the observation that Melchor's appeal had indeed become moot and
academic. On the basis thereof, Executive Secretary Macaraig "terminated" the administrative
case against Melchor, by Order dated June 9, 1989. 34

It appears, however, that about a week earlier, or on May 29, 1989, the Secretary of Foreign
Affairs had submitted a Memorandum to the President recommending the termination of the
services of Melchor described as "a political (non-career) Ambassador" as Chief of
Mission and as Ambassador" to the U.S.S.R, and that he "should vacate his post by 30 June
1989." 35 This was "APPROVED by authority of the President" on June 13, 1989 by Executive
Secretary Macaraig. 36
On June 28, 1989 Melchor presented the petition at bar, grounded mainly on the proposition
that the termination of his services by Foreign Affairs Secretary Manglapus after he had been
absolved of the charges against him, was unwarranted and illegal, and that the authority to so
terminate his services was "vested exclusively on the President herself . . . ."
Subsequently, Melchor filed a second petition, docketed as G.R. No. 88916, seeking
invalidation of the re-assignment or transfer of Ambassador Juan V. Saez from Amman,
Jordan to the Philippine Embassy at Moscow. 37
Against this factual background, the petitioners submit the following common contentions:

38

1) that the removals from the service were not made by the President personally and directly;
2) that the removals did not state a cause explicitly prescribed by the Foreign Service Act or the
Civil Service Law;
3) that the removals were affected without due process;
4) the petitioners were appointed right after the so-called "EDSA Revolution," and when VicePresident Laurel was Minister of Foreign Affairs; and
5) all were appointed Chief of Mission Class I (except Astraquillo, who was named Class II
Chief) and came into Foreign Service "through lateral entry."

The Civil Service Law, Presidential Decree No. 807, classifies employment in Government
into "career" and "non-career service." It identifies the peculiar characteristics of each
category, and enumerates the positions falling under each class.
Thus, Section 5 of said PD No. 807 states that the "career service" is characterized by:
(1) entrance based on merit and fitness, to be determined as far as practicable by competitive
examinations, or based on highly technical qualifications;
(2) opportunity for advancement to higher career positions; and
(3) security of tenure.

Section 5 then enumerates the particular positions falling under the Career Service, including,
as will be noted, those in the Foreign Service. They are the following: 39
(1) Open Career positions for appointment to which prior qualifications in an appropriate
examination is required;

(2) Closed Career positions which are scientific or highly technical in nature; these includes the
faculty and academic staff of state colleges and universities and scientific and technical
positions in scientific or research institutions which shall establish and maintain their own merit
systems;
(3) Positions in the Career Executive Service, namely: Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as may be identified by the
Career Executive Service Board, all of whom are appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who are appointed by the
President, such as the Foreign Service Officers in the Ministry of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a
separate merit system;
(6) Personnel of government-owned or controlled corporations, whether performing
governmental or proprietary functions, who do not fall under the non-career service; and
(7) [(7)] Permanent laborers, whether skilled, semi-skilled, or unskilled.

(8) The "Non-Career Service," on the other hand, according to Section 6 of the same PD 807,
shall be characterized by: 40
(1) entrance on bases other than those of the usual test of merit and fitness utilized for the
career service; and
(2) tenure which is limited to a period specified by law, or which is coterminous with that of the
appointing authority or subject to his pleasures, or which is limited to the duration of a particular
project for which purposes employment was made.

And the officials and employees listed under the Non-Career Service include:
(1) Elective officials and their personal or confidential staff;
(2) Department Heads and other officials of Cabinet rank who hold positions at the pleasure of
the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their
personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with
a special contract to undertake a specific work or job, requiring special or technical skills not
available in the employing agency, to be accomplished within a specific period, which in no case
shall exceed one year, and performs or accomplishes the specific work or job, under his own
responsibility with a minimum of directions and supervision from the hiring agency; and
(5) Emergency and seasonal personnel.

By these statutory standards, it seems plain that all three (3) petitioners: Isabelo J.
Astraquillo, Alunan C. Glang, and Alejandro Melchor, Jr., pertained to the Non-Career
Service. Their appointments to the Foreign Service were made on "bases other than those of
the usual test of merit and fitness utilized for the career service;" their entrance was not

'based on merit and fitness . . . determined . . . by competitive examinations, or based on

highly technical qualifications." This being so, their "tenure . . . (was) coterminous with that of
the appointing authority or subject to his pleasures, . . . ."
It is worthy of note that among the officers categorized in the Career Service by the Civil
Service Law, PD No. 807, are "Career officers, other than those in the Career Executive
Service, who are appointed by the President, such as the Foreign Service Officers in the
Ministry of Foreign Affairs." Implicit in this reference to "career officers" in the Ministry (now
Department) of Foreign Affairs is the acknowledgement of non-career officers in that ministry
(department).
The same distinction between career and non-career officers may be derived by implication
from the provisions of the Foreign Service Act of 1952, R.A. No. 708, as amended.
Part B, Title III of said Foreign Service Act deals with the "Career Service Corps . . .
composed of Foreign Service Officers appointed by the President upon the recommendation
of the Secretary," and declares that "(n)o person shall be eligible for appointment (in such
corps) unless he has passed such competitive examinations as the Board of Foreign Service
examination may prescribe to determine his fitness and aptitude for the work of the service
and has demonstrated his loyalty to the Government of the Republic of the Philippines and his
attachment to the principles of the Constitution." 41 Those who thus qualify are "certified by the
Secretary of Foreign Affairs as eligible for appointment as Foreign Service Officer(s)," and it is
exclusively from these officers so certified that the President "shall appoint Foreign Service
Officers . . . ." 42
Now, there are those, like the petitioners, who are appointed to the Foreign Service, without
having qualified in the manner just indicated and consequently without having been certified
by the Foreign Affairs Secretary as eligible for appointment as Foreign Service Officers. 43 In
view of the provisions of law just cited, they certainly do not and cannot be deemed embraced
in the Career Service Corps. They can only be regarded then as "non-career officers" or
"political appointees" who, as already pointed out, have a "tenure . . . coterminous with that of
the appointing authority or subject to his pleasures, . . . ."
Melchor discusses at length what he feels to be the distinction between an ambassador and a
chief of mission, and argues that whatever might be said about his serving at the pleasure of
the President as ambassador, his appointment as chief of mission had undoubtedly given him
security of tenure as regards this latter position. He opines that the term, "chief of mission,"
has two meanings in the Foreign Service Act.
He states that Section 3(i), Title I of the Act defines the term as "a principal officer appointed
by the President of the Philippines, with the consent of the Commission on Appointments, to
be in charge of the embassy and legation and other diplomatic mission of the Philippines or
any other person assigned under the terms of this act to be minister resident, charge
d'affaires, commissioner or diplomatic agent." 44 On the other hand, he says that in other parts
of the law ("Title II, Part B, Section I, Part C, Section 1 , and Title I, Part B, Section 1") "the
use of the term Chief of Mission is in a different context for it refers to the rank and class of
the Foreign Service Officer in the enumeration of categories of officers and employees of the
foreign service as well as the salary scale. 45

The discussion fails to demonstrate that, with regard to the petitioners, a chief of mission is
indeed significantly different from an ambassador. Petitioners Astraquillo, Glang and Melchor
were appointed as ambassadors, respectively, in the United Arab Emirates (UAE), Kuwait,
and Moscow. Their appointments as chief of missions in their respective posts simply meant
that, as ambassadors extraordinary and plenipotentiary they were being placed in charge of
the embassy or legation therein. Indeed, it seems evident that even without being named
chief of mission, the fact that they were the highest ranking official in their respective
embassies would operate to place them in charge thereof as a matter of course.
Obviously, however, this aspect of their appointments has no effect on the essential character
of their positions as pertaining to the non-career service. Consequently the termination of their
connection with the Foreign Service was not dependent on proof of some legally recognized
cause therefor, after due notice and hearing as in the case of career officers and
employees but lay entirely within the will of the President, in the exercise of her discretion,
and her determination of the wisdom, necessity or convenience of such a step in the national
interest, actually a political decision. In making this determination, the President may take
account of the recommendation of the Secretary of Foreign Affairs who, as the President's
alter ego, heads and controls the Department of Foreign Affairs and supervises and directs all
officials and employees assigned abroad. 46
The petitioners' other argument that their separation from the service is illegal because not
effected by the President of the Philippines who alone has the power to do so, is specious.
The fact is that it was in truth the President who ordered their removal. The record shows that
the President approved the recommendation of the Secretary of Foreign Affairs for the
termination of their services. This is shown by the pertinent documents in which the Executive
Secretary officially certified that the recommendation for their separation from the service had
been "APPROVED by Authority of the President."
Finally, since none of the petitioners has shown any right to be returned to the office from
which they had been separated by authority of the President, none of them is entitled to the
writ of quo warranto to oust the officials who have since replaced them in their respective
posts.
WHEREFORE, the petitions in the cases embraced in this opinion, i.e., G.R. Nos. 88183,
88781, 88467, 88672, 888916, are all DENIED, with costs against petitioners.

EN BANC

[G.R. No. 132231. March 31, 1998]

EMILIO M. R. OSMEA and PABLO P. GARCIA, petitioners, vs. THE COMMISSION ON
ELECTIONS, respondent.
DECISION
MENDOZA, J.:
This is a petition for prohibition, seeking a reexamination of the validity of 11(b) of R.A. No.
6646, the Electoral Reforms Law of 1987, which prohibits mass media from selling or giving
free of charge print space or air time for campaign or other political purposes, except to the
Commission on Elections.[1] Petitioners are candidates for public office in the forthcoming
elections. Petitioner Emilio M. R. Osmea is candidate for President of the Philippines, while
petitioner Pablo P. Garcia is governor of Cebu Province, seeking reelection. They contend
that events after the ruling in National Press Club v. Commission on Elections[2] have called
into question the validity of the very premises of that [decision].[3]
There Is No Case or Controversy to Decide,
Only an Academic Discussion to Hold

NPC v. COMELEC upheld the validity of 11(b) of R.A. No. 6646 against claims that it
abridged freedom of speech and of the press.[4] In urging a reexamination of that ruling,
petitioners claim that experience in the last five years since the decision in that case has
shown the undesirable effects of the law because the ban on political advertising has not
only failed to level the playing field, [but] actually worked to the grave disadvantage of the
poor candidate[s][5] by depriving them of a medium which they can afford to pay for while
their more affluent rivals can always resort to other means of reaching voters like airplanes,
boats, rallies, parades, and handbills.
No empirical data have been presented by petitioners to back up their claim, however.
Argumentation is made at the theoretical and not the practical level. Unable to show the
experience and subsequent events which they claim invalidate the major premise of our
prior decision, petitioners now say there is no need for empirical data to determine whether
the political ad ban offends the Constitution or not.[6] Instead they make arguments from
which it is clear that their disagreement is with the opinion of the Court on the constitutionality
of 11(b) of R.A. No. 6646 and that what they seek is a reargument on the same issue
already decided in that case. What is more, some of the arguments were already considered
and rejected in the NPC case.[7]
Indeed, petitioners do not complain of any harm suffered as a result of the operation of the
law. They do not complain that they have in any way been disadvantaged as a result of the
ban on media advertising. Their contention that, contrary to the holding in NPC, 11(b) works
to the disadvantage of candidates who do not have enough resources to wage a campaign
outside of mass media can hardly apply to them. Their financial ability to sustain a long
drawn-out campaign, using means other than the mass media to communicate with voters,
cannot be doubted. If at all, it is candidates like intervenor Roger Panotes, who is running for

mayor of Daet, Camarines Norte, who can complain against 11(b) of R.A. No. 6646. But
Panotes is for the law which, he says, has to some extent, reduced the advantages of
moneyed politicians and parties over their rivals who are similarly situated as ROGER
PANOTES. He claims that the elimination of this substantial advantage is one reason why
ROGER PANOTES and others similarly situated have dared to seek an elective position this
coming elections.[8]
What petitioners seek is not the adjudication of a case but simply the holding of an academic
exercise. And since a majority of the present Court is unpersuaded that its decision in NPC is
founded in error, it will suffice for present purposes simply to reaffirm the ruling in that case.
Stare decisis et non quieta movere. This is what makes the present case different from the
overruling decisions[9] invoked by petitioners.
Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in order to
clarify our own understanding of its reach and set forth a theory of freedom of speech.
No Ad Ban, Only a Substitution of
COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media

The term political ad ban, when used to describe 11(b) of R.A. No. 6646, is misleading, for
even as 11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates space
and time in the media. There is no suppression of political ads but only a regulation of the
time and manner of advertising.
Thus, 11(b) states:
Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
....
(b) for any newspapers, radio broadcasting or television station, or other mass media,
or any person making use of the mass media to sell or to give free of charge print
space or air time for campaign or other political purposes except to the Commission
as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective
public office shall take a leave of absence from his work as such during the campaign
period.
On the other hand, the Omnibus Election Code provisions referred to in 11(b) read:
SEC. 90. Comelec space. - The Commission shall procure space in at least one
newspaper of general circulation in every province or city: Provided, however, That in
the absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as Comelec Space wherein
candidates can announce their candidacy. Said space shall be allocated, free of

charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45, 1978 EC).
SEC. 92. Comelec time. - The Commission shall procure radio and television time to
be known as Comelec Time which shall be allocated equally and impartially among
the candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of
the campaign. (Sec. 46, 1978 EC)
The laws concern is not with the message or content of the ad but with ensuring media
equality between candidates with deep pockets, as Justice Feliciano called them in his
opinion of the Court in NPC, and those with less resources.[10] The law is part of a package
of electoral reforms adopted in 1987. Actually, similar effort was made in 1970 to equalize the
opportunity of candidates to advertise themselves and their programs of government by
requiring the COMELEC to have a COMELEC space in newspapers, magazines, and
periodicals and prohibiting candidates to advertise outside such space, unless the names of
all the other candidates in the district in which the candidate is running are mentioned with
equal prominence. The validity of the law was challenged in Badoy, Jr. v. COMELEC.[11]
The voting was equally divided (5-5), however, with the result that the validity of the law was
deemed upheld.
There is a difference in kind and in severity between restrictions such as those imposed by
the election law provisions in question in this case and those found to be unconstitutional in
the cases cited by both petitioners and the Solicitor General, who has taken the side of
petitioners. In Adiong v. COMELEC[12] the Court struck down a regulation of the COMELEC
which prohibited the use of campaign decals and stickers on mobile units, allowing their
location only in the COMELEC common poster area or billboard, at the campaign
headquarters of the candidate or his political party, or at his residence. The Court found the
restriction so broad that it encompasses even the citizens private property, which in this
case is a privately-owned car.[13] Nor was there a substantial governmental interest
justifying the restriction.
[T]he constitutional objective to give a rich candidate and a poor candidate equal
opportunity to inform the electorate as regards their candidacies, mandated by Article
II, Section 26 and Article XIII, Section 1 in relation to Article IX(c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom
of expression, any financial considerations behind the regulation are of marginal
significance.[14]
Mutuc v. COMELEC[15] is of a piece with Adiong. An order of the COMELEC prohibiting the
playing of taped campaign jingles through sound systems mounted on mobile units was held
to be an invalid prior restraint without any apparent governmental interest to promote, as the
restriction did not simply regulate time, place or manner but imposed an absolute ban on the
use of the jingles. The prohibition was actually content-based and was for that reason bad as
a prior restraint on speech, as inhibiting as prohibiting the candidate himself to use the
loudspeaker. So is a ban against newspaper columnists expressing opinion on an issue in a
plebiscite a content restriction which, unless justified by compelling reason, is

unconstitutional.[16]
Here, on the other hand, there is no total ban on political ads, much less restriction on the
content of the speech. Given the fact that print space and air time can be controlled or
dominated by rich candidates to the disadvantage of poor candidates, there is a substantial or
legitimate governmental interest justifying exercise of the regulatory power of the COMELEC
under Art. IX-C, 4 of the Constitution, which provides:
The commission may, during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.
The provisions in question involve no suppression of political ads. They only prohibit the sale
or donation of print space and air time to candidates but require the COMELEC instead to
procure space and time in the mass media for allocation, free of charge, to the candidates. In
effect, during the election period, the COMELEC takes over the advertising page of
newspapers or the commercial time of radio and TV stations and allocates these to the
candidates.
Nor can the validity of the COMELEC take-over for such temporary period be doubted.[17] In
Pruneyard Shopping Center v. Robbins,[18] it was held that a court order compelling a private
shopping center to permit use of a corner of its courtyard for the purpose of distributing
pamphlets or soliciting signatures for a petition opposing a UN resolution was valid. The
order neither unreasonably impaired the value or use of private property nor violated the
owners right not to be compelled to express support for any viewpoint since it can always
disavow any connection with the message.
On the other hand, the validity of regulations of time, place and manner, under well-defined
standards, is well-nigh beyond question.[19] What is involved here is simply regulation of this
nature. Instead of leaving candidates to advertise freely in the mass media, the law provides
for allocation, by the COMELEC, of print space and air time to give all candidates equal time
and space for the purpose of ensuring free, orderly, honest, peaceful, and credible elections.
In Gonzales v. COMELEC,[20] the Court sustained the validity of a provision of R.A. No. 4880
which in part reads:
SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political
Activity. - It is unlawful for any person whether or not a voter or candidate, or for any
group, or association of persons, whether or not a political party or political committee,
to engage in an election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an election involving a
public office voted for at large and ninety days immediately preceding an election for

any other elective public office.

The term Candidate refers to any person aspiring for or seeking an elective public
office, regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate.
The term Election Campaign or Partisan Political Activity refers to acts designed to
have a candidate elected or not or promote the candidacy of a person or persons to a
public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups
of persons for the purpose of soliciting votes and/or undertaking any campaign
or propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate or
party; . . .
In Valmonte v. COMELEC,[21] on the other hand, the Court upheld the validity of a
COMELEC resolution prohibiting members of citizen groups or associations from entering any
polling place except to vote. Indeed, 261(k) of the Omnibus Election Code makes it unlawful
for anyone to solicit votes in the polling place and within a radius of 30 meters thereof.
These decisions come down to this: the State can prohibit campaigning outside a certain
period as well as campaigning within a certain place. For unlimited expenditure for political
advertising in the mass media skews the political process and subverts democratic selfgovernment. What is bad is if the law prohibits campaigning by certain candidates because
of the views expressed in the ad. Content regulation cannot be done in the absence of any
compelling reason.
Law Narrowly Drawn to Fit
Regulatory Purpose

The main purpose of 11(b) is regulatory. Any restriction on speech is only incidental, and it
is no more than is necessary to achieve its purpose of promoting equality of opportunity in the
use of mass media for political advertising. The restriction on speech, as pointed out in NPC,
is limited both as to time and as to scope.
Petitioners and the dissenters make little of this on the ground that the regulation, which they
call a ban, would be useless any other time than the election period. Petitioners state: [I]n
testing the reasonableness of a ban on mountain-skiing, one cannot conclude that it is limited
because it is enforced only during the winter season.[22] What makes the regulation
reasonable is precisely that it applies only to the election period. Its enforcement outside the
period would make it unreasonable. More importantly, it should be noted that a ban on
mountain skiing would be passive in nature. It is like the statutory cap on campaign
expenditures, but is so unlike the real nature of 11(b), as already explained.
Petitioners likewise deny that 11(b) is limited in scope, as they make another quaint
argument:

A candidate may court media to report and comment on his person and his programs,
and media in the exercise of their discretion just might. It does not, however, follow
that a candidates freedom of expression is thereby enhanced, or less abridged. If
Pedro is not allowed to speak, but Juan may speak of what Pedro wishes to say, the
curtailment of Pedros freedom of expression cannot be said to be any less limited,
just because Juan has the freedom to speak. [23]
The premise of this argument is that 11(b) imposes a ban on media political advertising.
What petitioners seem to miss is that the prohibition against paid or sponsored political
advertising is only half of the regulatory framework, the other half being the mandate of the
COMELEC to procure print space and air time so that these can be allocated free of charge to
the candidates.
Reform of the Marketplace of Ideas,
Not Permissible?

Petitioners argue that the reasoning of NPC is flawed, because it rests on a misconception
that Art. IX-C, 4 mandates the absolute equality of all candidates regardless of financial
status, when what this provision speaks of is equality of opportunity. In support of this claim,
petitioners quote the following from the opinion of the Court written by Justice Feliciano:
The objective which animates Section 11(b) is the equalizing, as far as practicable,
the situations of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign war chests.[24]
The Court meant equalizing media access, as the following sentences which were omitted
clearly show:
Section 11(b) prohibits the sale or donation of print space and air time for campaign
or other political purposes except to the Commission on Elections (Comelec). Upon
the other hand, Sections 90 and 92 of the Omnibus Election Code require the
Comelec to procure Comelec space in newspapers of general circulation in every
province or city and Comelec time on radio and television stations. Further, the
Comelec is statutorily commanded to allocate Comelec space and Comelec time
on a free of charge, equal and impartial basis among all candidates within the area
served by the newspaper or radio and television station involved. [25]
On the other hand, the dissent of Justice Romero in the present case, in batting for an
uninhibited market place of ideas, quotes the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to secure the widest possible dissemination of
information from diverse and antagonistic sources and to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people.[26]

But do we really believe in that? That statement was made to justify striking down a limit on
campaign expenditure on the theory that money is speech. Do those who endorse the view
that government may not restrict the speech of some in order to enhance the relative voice of
others also think that the campaign expenditure limitation found in our election laws[27] is
unconstitutional? How about the principle of one person, one vote,[28] is this not based on
the political equality of voters? Voting after all is speech. We speak of it as the voice of the
people - even of God. The notion that the government may restrict the speech of some in
order to enhance the relative voice of others may be foreign to the American Constitution. It
is not to the Philippine Constitution, being in fact an animating principle of that document.
Indeed, Art. IX-C, 4 is not the only provision in the Constitution mandating political equality.
Art. XIII, 1 requires Congress to give the highest priority to the enactment of measures
designed to reduce political inequalities, while Art. II, 26 declares as a fundamental principle
of our government equal access to opportunities for public service. Access to public office
will be denied to poor candidates if they cannot even have access to mass media in order to
reach the electorate. What fortress principle trumps or overrides these provisions for political
equality?
Unless the idealism and hopes which fired the imagination of those who framed the
Constitution now appear dim to us, how can the electoral reforms adopted by them to
implement the Constitution, of which 11(b) of R.A. No. 6646, in relation to 90 and 92 are
part, be considered infringements on freedom of speech? That the framers contemplated
regulation of political propaganda similar to 11(b) is clear from the following portion of the
sponsorship speech of Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or
utilization of franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges or
concessions granted by the Government, there is a provision that during the election
period, the Commission may regulate, among other things, the rates, reasonable free
space, and time allotments for public information campaigns and forums among
candidates for the purpose of ensuring free, orderly, honest and peaceful elections.
This has to do with the media of communication or information. [29]
On the Claim that the Reforms
Have Been Ineffectual

Petitioners contend that 11(b) is not a reasonable means for achieving the purpose for which
it was enacted. They claim that instead of levelling the playing field as far as the use of mass
media for political campaign is concerned, 11(b) has abolished it. They further claim that
11(b) does not prevent rich candidates from using their superior resources to the
disadvantage of poor candidates.
All this is of course mere allegation. As stated in the beginning, what petitioners claim to be
the nations experience with the law is merely argumentation against its validity. The claim
will not bear analysis, however. Assuming that rich candidates can spend for parades, rallies,
motorcades, airplanes and the like in order to campaign while poor candidates can only afford
political ads, the gap between the two will not necessarily be reduced by allowing unlimited

mass media advertising because rich candidates can spend for other propaganda in addition
to mass media advertising. Moreover, it is not true that 11(b) has abolished the playing
field. What it has done, as already stated, is merely to regulate its use through COMELECsponsored advertising in place of advertisements paid for by candidates or donated by their
supporters.
It is finally argued that COMELEC Space and COMELEC Time are ineffectual. It is claimed
that people hardly read or watch or listen to them. Again, this is a factual assertion without
any empirical basis to support it. What is more, it is an assertion concerning the adequacy or
necessity of the law which should be addressed to Congress. Well-settled is the rule that the
choice of remedies for an admitted social malady requiring government action belongs to
Congress. The remedy prescribed by it, unless clearly shown to be repugnant to fundamental
law, must be respected.[30] As shown in this case, 11(b) of R.A. 6646 is a permissible
restriction on the freedom of speech, of expression and of the press.
Dissenting, Justice Panganiban argues that advertising is the most effective means of
reaching voters. He adverts to a manifestation of the COMELEC lawyer that the Commission
is not procuring [Comelec Space] by virtue of the effects of the decision of this Honorable
Court in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA 272.[31]
To be sure, this Court did not hold in PPI v. COMELEC that it should not procure newspaper
space for allocation to candidates. What it ruled is that the COMELEC cannot procure print
space without paying just compensation. Whether by its manifestation the COMELEC meant
it is not going to buy print space or only that it will not require newspapers to donate free of
charge print space is not clear from the manifestation. It is to be presumed that the
COMELEC, in accordance with its mandate under 11(b) of R.A. No. 6646 and 90 of the
Omnibus Election Code, will procure print space for allocation to candidates, paying just
compensation to newspapers providing print space.
In any event, the validity of a law cannot be made to depend on the faithful compliance of
those charged with its enforcement but by appropriate constitutional provisions. There is a
remedy for such lapse if it should happen. In addition, there is the COMELEC Time during
which candidates may advertise themselves. Resolution No. 2983-A of the COMELEC
provides:
SEC. 2. Grant of Comelec Time. Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as
Comelec Time, effective February 10, 1998 for candidates for President, VicePresident and Senators, and effective March 27, 1998, for candidates for local
elective offices, until May 9, 1998. (Emphasis added)
Failure of Legislative Remedy Bespeaks
of More than Congressional Inaction

The fact is that efforts have been made to secure the amendment or even repeal of 11(b) of
R.A. No. 6646. No less than five bills[32] were filed in the Senate in the last session of
Congress for this purpose, but they all failed of passage. Petitioners claim it was because

Congress adjourned without acting on them. But that is just the point. Congress obviously
did not see it fit to act on the bills before it adjourned.
We thus have a situation in which an act of Congress was found by this Court to be valid so
that those opposed to the statute resorted to the legislative department. The latter
reconsidered the question but after doing so apparently found no reason for amending the
statute and therefore did not pass any of the bills filed to amend or repeal the statute. Must
this Court now grant what Congress denied to them? The legislative silence here certainly
bespeaks of more than inaction.
Test for Content-Neutral Restrictions

[33]

In Adiong v. COMELEC[34] this Court quoted the following from the decision of the U.S.
Supreme Court in a case sustaining a Los Angeles City ordinance which prohibited the
posting of campaign signs on public property:
A government regulation is sufficiently justified if it is within the constitutional power of
the Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct
1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct
2118[1984])[35]
This test was actually formulated in United States v. OBrien.[36] It is an appropriate test for
restrictions on speech which, like 11(b), are content-neutral. Unlike content-based
restrictions, they are not imposed because of the content of the speech. For this reason,
content-neutral restrictions are tests demanding standards. For example, a rule such as that
involved in Sanidad v. COMELEC,[37] prohibiting columnists, commentators, and announcers
from campaigning either for or against an issue in a plebiscite must have a compelling reason
to support it, or it will not pass muster under strict scrutiny. These restrictions, it will be seen,
are censorial and therefore they bear a heavy presumption of constitutional invalidity. In
addition, they will be tested for possible overbreadth and vagueness.
It is apparent that these doctrines have no application to content-neutral regulations which,
like 11(b), are not concerned with the content of the speech. These regulations need only a
substantial governmental interest to support them.[38] A deferential standard of review will
suffice to test their validity.
Justice Panganibans dissent invokes the clear-and-present-danger test and argues that
media ads do not partake of the real substantive evil that the state has a right to prevent
and that justifies the curtailment of the peoples cardinal right to choose their means of
expression and of access to information. The clear-and-present-danger test is not, however,
a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful
student of constitutional law, it was originally formulated for the criminal law and only later
appropriated for free speech cases. For the criminal law is necessarily concerned with the
line at which innocent preparation ends and a guilty conspiracy or attempt begins.[39] Clearly,
it is inappropriate as a test for determining the constitutional validity of laws which, like 11(b)

of R.A. No. 6646, are not concerned with the content of political ads but only with their
incidents. To apply the clear-and-present-danger test to such regulatory measures would be
like using a sledgehammer to drive a nail when a regular hammer is all that is needed.
The reason for this difference in the level of justification for the restriction of speech is that
content-based restrictions distort public debate, have improper motivation, and are usually
imposed because of fear of how people will react to a particular speech. No such reasons
underlie content-neutral regulations, like regulations of time, place and manner of holding
public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. Applying the OBrien
test in this case, we find that 11(b) of R.A. No. 6646 is a valid exercise of the power of the
State to regulate media of communication or information for the purpose of ensuring equal
opportunity, time and space for political campaigns; that the regulation is unrelated to the
suppression of speech; that any restriction on freedom of expression is only incidental and no
more than is necessary to achieve the purpose of promoting equality.
________________
The Court is just as profoundly aware as anyone else that discussion of public issues and
debate on the qualifications of candidates in an election are essential to the proper
functioning of the government established by our Constitution. But it is precisely with this
awareness that we think democratic efforts at reform should be seen for what they are:
genuine efforts to enhance the political process rather than infringements on freedom of
expression. The statutory provision involved in this case is part of the reform measures
adopted in 1987 in the aftermath of EDSA. A reform-minded Congress passed bills which
were consolidated into what is now R.A No. 6646 with near unanimity. The House of
Representatives, of which petitioner Pablo P. Garcia was a distinguished member, voted 96
to 1 (Rep. Eduardo Pilapil) in favor, while the Senate approved it 19-0. [40]
In his recent book, The Irony of Free Speech, Owen Fiss speaks of a truth that is full of irony
and contradiction: that the state can be both an enemy and a friend of speech; that it can do
terrible things to undermine democracy but some wonderful things to enhance it as well.[41]
We hold R.A. No. 6646, 11(b) to be such a democracy-enhancing measure. For Holmess
marketplace of ideas can prove to be nothing but a romantic illusion if the electoral process is
badly skewed, if not corrupted, by the unbridled use of money for campaign propaganda.
The petition is DISMISSED.
SO ORDERED.
SECOND DIVISION

[G.R. No. 130872. March 25, 1999]

FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs. SANDIGANBAYAN and
PEOPLE OF THE PHILIPPINES, respondents.
DECISION

BELLOSILLO, J.:
FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the
Sandiganbayan of thirteen (13) counts of estafa through falsification of public documents.[1] They now
seek a review of their conviction as they insist on their innocence.
Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son,
his co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of
Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang
Bayan (SB) representing the Federation of Kabataang Barangays.
In the 1985 election for the Kabataang Barangay Jowil Red[2] won as KB Chairman of Barangay
Matalaba, Santa Cruz. Parenthetically, Lenlie Lecaroz did not run as candidate in this electoral
exercise as he was no longer qualified for the position after having already passed the age limit fixed by
law.
Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of
the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee MarcosManotoc, then the National Chairperson of the organization, sent a telegram to Red confirming his
appointment and advising him further that copies of his appointment papers would be sent to him in
due time through the KB Regional Office.[3] Red received the telegram on 2 January 1986 and showed
it immediately to Mayor Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the invitation of
one of its members, Kagawad Rogato Lumawig. In that meeting, Mayor Francisco M. Lecaroz
informed Red that he could not yet sit as member of the municipal council until his appointment had
been cleared by the Governor of Marinduque. Nonetheless, the telegram was included in the agenda as
one of the subjects discussed in the meeting.
Red finally received his appointment papers sometime in January 1986.[4] But it was only on 23 April
1986, when then President Corazon C. Aquino was already in power,[5] that he forwarded these
documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as
sectoral representative in the Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of
twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986
to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986 and then authorized
someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding
salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment
papers from President Marcos, Red was finally able to secure from the Aquino Administration a
confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa
Cruz.
Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor
Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the

position of KB sectoral representative. After preliminary investigation, the Ombudsman filed with the
Sandiganbayan thirteen (13) Informations for estafa through falsification of public documents against
petitioners, and one (1) Information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and
Corrupt Practices Act, against Mayor Lecaroz alone.
On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all
counts of estafa through falsification of public documents and sentenced each of them to a)
imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS,
ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a maximum of TEN (10)
YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE ABOVE CASES;
b)
a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE
CASES or a total of SIXTY-FIVE THOUSAND PESOS (P65,000), and
c)
perpetual special disqualification from public office in accordance with Art. 214 of the Revised
Penal Code.
x x x (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX
HUNDRED SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained, to the Municipality
of Sta. Cruz, Marinduque in restitution.
The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office
sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of the KB
presidency upon the expiration of the term of accused Lenlie Lecaroz was valid. Conversely, the
accused Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of November 1985 and, as
such, was no longer the legitimate representative of the youth sector in the municipal council of Sta.
Cruz, Marinduque.
In convicting both accused on the falsification charges, the Sandiganbayan elucidated x x x x when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the
accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz for the payroll period
starting January 15, 1986, reinstating accused LENLIE LECAROZ to his position in the Sangguniang
Bayan, he was deliberately stating a falsity when he certified that LENLIE LECAROZ was a member
of the Sangguniang Bayan. The fact is that even accused LENLIE LECAROZ himself no longer
attended the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January
16 to 31, 1986, did not personally pick up his salaries anymore.
The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads:
Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. - The penalty of
prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee,
or notary public who, taking advantage of his official position, shall falsify a document by committing
any of the following acts: x x x x 4. Making untruthful statements in a narration of facts.
xxxx

Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.
Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw
salaries from the municipality to which he was not entitled for services he had admittedly not rendered.
This constitutes Estafa x x x x the deceit being the falsification made, and the prejudice being that
caused to the municipality of Sta. Cruz, Marinduque for having paid salaries to LENLIE LECAROZ
who was not entitled thereto.
Conspiracy was alleged in the Informations herein, and the Court found the allegation sufficiently
substantiated by the evidence presented.
There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son
LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet he did so. He could
not have had any other purpose than to enable his son LENLIE to draw salaries thereby. This
conclusion is inescapable considering that the very purpose of a payroll is precisely that -- to authorize
the payment of salaries. And LENLIE LECAROZ did his part by actually drawing the salaries during
the periods covered, albeit through another person whom he had authorized.
By the facts proven, there was conspiracy in the commission of Estafa between father and son.
However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019, the Sandiganbayan
acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to sit as member of the
SB because he was not properly appointed thereto nor had he shown to the mayor sufficient basis for
his alleged right to a seat in the municipal council. On this basis, the court a quo concluded that Mayor
Lecaroz was legally justified in not allowing Red to assume the position of Kagawad.
On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the
accused. This prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan
erred:
First, in holding that Red had validly and effectively assumed the office of KB Federation President by
virtue of his oath taken before then Assemblywoman Carmencita Reyes on 27 September 1985, and in
concluding that the tenure of accused Lenlie Lecaroz as president of the KB and his coterminous term
of office as KB representative to the SB had accordingly expired;
Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth
representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer occupy
the office, even in a holdover capacity, despite the vacancy therein;
Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had
expired, in holding that by reason thereof accused Lenlie Lecaroz became legally disqualified from
continuing in office as KB Sectoral Representative to the SB even in a holdover capacity;
Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of
the pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused
Lenlie Lecaroz was legally entitled and even mandated to continue in office in a holdover capacity;

Fifth, in holding that the accused had committed the crime of falsification within the contemplation of
Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they had been
convicted required criminal intent and malice as essential elements;
Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the
trial court erred in not holding - considering the difficult legal questions involved - that the accused
acted in good faith and committed merely an error of judgment, without malice and criminal intent;
and,
Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the
Information under which the accused were arraigned and tried.
The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its
conviction of the accused are: (a) although Jowil Red was duly elected KB Chairman he could not
validly assume a seat in the Sanggunian as KB sectoral representative for failure to show a valid
appointment; and, (b) Lenlie Lecaroz who was the incumbent KB representative could not hold over
after his term expired because pertinent laws do not provide for holdover.
To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral
representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of
the KB Constitution respectively provide Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of
March 1980.
In the case of the members of the sanggunian representing the association of barangay councils and the
president of the federation of kabataang barangay, their terms of office shall be coterminous with their
tenure is president of their respective association and federation .
xxxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last
Sunday of November 1985 or such time that the newly elected officers shall have qualified and
assumed office in accordance with this Constitution.
The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he
did not present an authenticated copy of his appointment papers; neither did he take a valid oath of
office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in
a holdover capacity since his term had already expired. The Sandiganbayan however rejected this
postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in
the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be
no holdover with respect to positions in the SB.
We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer
implies that the office has a fixed term and the incumbent is holding onto the succeeding term.[6] It is
usually provided by law that officers elected or appointed for a fixed term shall remain in office not
only for that term but until their successors have been elected and qualified. Where this provision is

found, the office does not become vacant upon the expiration of the term if there is no successor
elected and qualified to assume it, but the present incumbent will carry over until his successor is
elected and qualified, even though it be beyond the term fixed by law.[7]
In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy
his post after the expiration of his term in case his successor fails to qualify, it does not also say that he
is proscribed from holding over. Absent an express or implied constitutional or statutory provision to
the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has
qualified.[8] The legislative intent of not allowing holdover must be clearly expressed or at least
implied in the legislative enactment,[9] otherwise it is reasonable to assume that the law-making body
favors the same.
Indeed, the law abhors a vacuum in public offices,[10] and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in an
executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by
one lawfully authorized to exercise its functions.[11] This is founded on obvious considerations of
public policy, for the principle of holdover is specifically intended to prevent public convenience from
suffering because of a vacancy[12] and to avoid a hiatus in the performance of government functions.
[13]
The Sandiganbayan maintained that by taking his oath of office before Assemblywoman Reyes in 1985
Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz. It
should be noted however that under the provisions of the Administrative Code then in force,
specifically Sec. 21, Art. VI thereof, members of the then Batasang Pambansa were not authorized to
administer oaths. It was only after the approval of RA No. 6733[14]on 25 July 1989 and its subsequent
publication in a newspaper of general circulation that members of both Houses of Congress were
vested for the first time with the general authority to administer oaths. Clearly, under this
circumstance, the oath of office taken by Jowil Red before a member of the Batasang Pambansa who
had no authority to administer oaths, was invalid and amounted to no oath at all.
To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full
investiture with the office.[15] Only when the public officer has satisfied the prerequisite of oath that
his right to enter into the position becomes plenary and complete. Until then, he has none at all. And
for as long as he has not qualified, the holdover officer is the rightful occupant. It is thus clear in the
present case that since Red never qualified for the post, petitioner Lenlie Lecaroz remained KB
representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure
officer,[16] or at least a de facto officer[17] entitled to receive the salaries and all the emoluments
appertaining to the position. As such, he could not be considered an intruder and liable for
encroachment of public office.[18]
On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were
convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4, of The Revised
Penal Code, are intentional felonies for which liability attaches only when it is shown that the
malefactors acted with criminal intent or malice.[19] If what is proven is mere judgmental error on the
part of the person committing the act, no malice or criminal intent can be rightfully imputed to him.
Was criminal intent then demonstrated to justify petitioners' conviction? It does not so appear in the
case at bar.

Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi
mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance
or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility.
The exception of course is neglect in the discharge of a duty or indifference to consequences, which is
equivalent to a criminal intent, for in this instance, the element of malicious intent is supplied by the
element of negligence and imprudence[20] In the instant case, there are clear manifestations of good
faith and lack of criminal intent on the part of petitioners.
First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he
presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-Manotoc
informing him of his supposed appointment to the SB, together with a photocopy of a "Mass
Appointment." Without authenticated copies of the appointment papers, Red had no right to assume
office as KB representative to the Sanggunian, and petitioner Mayor Lecaroz had every right to
withhold recognition, as he did, of Red as a member of the Sanggunian.
Second. It appears from the records that although Red received his appointment papers signed by
President Marcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23
April 1986 during which time President Marcos had already been deposed and President Aquino had
already taken over the helm of government. On 25 March 1986 the Freedom Constitution came into
being providing in Sec. 2 of Art. III thereof that Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue
in office until otherwise provided by. proclamation or executive order or upon the designation of their
successors if such appointment is made within a period of one (1) year from February 26, 1986
(underscoring supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial
governor forwarded the papers of Jowil Red to then Minister of Interior and Local Government
Aquilino Pimentel, Jr., requesting advice on the validity of the appointment signed by former President
Marcos. The response was the issuance of MILG Provincial Memorandum-Circular No. 86-02[21] and
Memorandum-Circular No. 86-17[22] stating that PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02
2.
That newly elected KB Federation Presidents, without their respective authenticated
appointments from the president, cannot, in any way, represent their associations in any sangguniang
bayan/sangguniang panlalawigan, as the case may be, although they are still considered presidents of
their federations by virtue of the July 1985 elections.
MEMORANDUM CIRCULAR NO. 86-17
It is informed, however, that until replaced by the Office of the President or by this Ministry the
appointive members of the various Sangguniang Bayan, Sangguniang Panlunsod, and the Sangguniang
Panlalawigan shall continue to hold office and to receive compensation due them under existing laws,
rules and regulations.
The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually
confirmed the right of incumbent KB Federation Presidents to hold and maintain their positions until

duly replaced either by the President herself or by the Interior Ministry. Explicit therein was the caveat
that newly elected KB Federation Presidents could not assume the right to represent their respective
associations in any Sanggunian unless their appointments were authenticated by then President Aquino
herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of
Red's appointment to the Sanggunian.
Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of
Presidents Macapagal, Marcos and Aquino concerning the doctrine of holdover. This consistently
expressed the view espoused by the executive branch for more than thirty (30) years that the mere
fixing of the term of office in a statute without an express prohibition against holdover is not indicative
of a legislative intent to prohibit it, in light of the legal principle that just as nature abhors a vacuum so
does the law abhor a vacancy in the government.[23] Reliance by petitioners on these opinions, as well
as on the pertinent directives of the then Ministry of Interior and Local Government, provided them
with an unassailable status of good faith in holding over and acting on such basis; and,
Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in
the community, would deliberately blemish his good name, and worse, involve his own son in a
misconduct for a measly sum of P23,675.00, such as this case before us. As aptly deduced by Justice
Del Rosario[24]
If I were to commit a crime, would I involve my son in it? And if I were a town mayor, would I ruin
my name for the measly sum of P1,894.00 a month? My natural instinct as a father to protect my own
son and the desire, basic in every man, to preserve one's honor and reputation would suggest a
resounding NO to both questions. But the prosecution ventured to prove in these thirteen cases that
precisely because they were father and son and despite the relatively small amount involved, accused
Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to falsify several municipal payrolls for the
purpose of swindling their own town of the amount of P1,894.00 a month, and the majority has found
them guilty. I find discomfort with this verdict basically for the reason that there was no criminal
intent on their part to falsify any document or to swindle the government.
The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith.
[25] In Cabungcal v. Cordova[26] we affirmed the doctrine that an erroneous interpretation of the
meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would
entitle an aggrieved party to damages against that official. We reiterated this principle in Mabutol v.
Pascual[27] which held that public officials may not be liable for damages in the discharge of their
official functions absent any bad faith. Sanders v. Veridiano II[28] expanded the concept by declaring
that under the law on public officers, acts done in the performance of official duty are protected by the
presumption of good faith.
In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2)
circumstances which purportedly indicated criminal intent. It pointed out that the name of accused
Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which meant that his
term had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the
payroll periods from 15 January 1986 and thereafter for the next twelve and a half (12 -1/2) months
was for no other purpose than to enable him to draw salaries from the municipality.[29] There is
however no evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the
name of Lenlie Lecaroz to be dropped from the payroll for the first quincena of January 1986. On the
contrary, it is significant that while Lenlie Lecaroz' name did not appear in the payroll for the first

quincena of January 1986, yet, in the payroll for the next quincena accused Lenlie Lecaroz was paid
for both the first and second quincenas, and not merely for the second half of the month which would
have been the case if he was actually "dropped" from the payroll for the first fifteen (15) days and then
"reinstated" in the succeeding payroll period, as held by the court a quo.
From all indications, it is possible that the omission was due to the inadequate documentation of Red's
appointment to and assumption of office, or the result of a mere clerical error which was later rectified
in the succeeding payroll. This however cannot be confirmed by the evidence at hand. But since a
doubt is now created about the import of such omission, the principle of equipoise should properly
apply. This rule demands that all reasonable doubt intended to demonstrate error and not a crime
should be resolved in favor of the accused. If the inculpatory facts and circumstances are capable of
two or more explanations, one of which is consistent with the innocence of the accused and the other
with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to
support a conviction.[30]
Petitioners have been convicted for falsification of public documents through an untruthful narration of
facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be established, the
following elements must concur: (a) the offender makes in a document statements in a narration of
facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts
narrated by the offender are absolutely false; and, (d) the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third person.
The first and third elements of the offense have not been established in this case. In approving the
payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded
certifications thus I hereby certify on my official oath that the above payroll is correct, and that the services above stated
have been duly rendered. Payment for such services is also hereby approved from the appropriations
indicated.
When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts
but a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over as member
of the Sanggunian and thus entitled to the emoluments attached to the position. This is an opinion
undoubtedly involving a legal matter, and any "misrepresentation" of this kind cannot constitute the
crime of false pretenses.[31] In People v. Yanza[32] we ruled Now then, considering that when defendant certified she was eligible for the position, she practically
wrote a conclusion of law which turned out to be inexact or erroneous - not entirely groundless - we are
all of the opinion that she may not be declared guilty of falsification, specially because the law which
she has allegedly violated (Art. 171, Revised Penal Code, in connection with other provisions),
punishes the making of untruthful statements in a narration of facts - emphasis on facts x x x x
Unfortunately, she made a mistake of judgment; but she could not be held thereby to have intentionally
made a false statement of fact in violation of Art. 171 above-mentioned.
The third element requiring that the narration of facts be absolutely false is not even adequately
satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the
Sanggunian was not entirely bereft of basis, anchored as it was on the universally accepted doctrine of
holdover. La mera inexactitude no es bastante para integrar este delito.[33] If the statements are not

altogether false, there being some colorable truth in them, the crime of falsification is deemed not to
have been committed.
Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in this
case. The court a quo used as indication of conspiracy the fact that the accused Mayor certified the
payrolls authorizing payment of compensation to his son Lenlie Lecaroz and that as a consequence
thereof the latter collected his salaries. These are not legally acceptable indicia, for they are the very
same acts alleged in the Informations as constituting the crime of estafa through falsification. They
cannot qualify as proof of complicity or unity of criminal intent. Conspiracy must be established
separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable
doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the
conduct of the accused before, during and after the commission of the crime, all taken together
however, the evidence must reasonably be strong enough to show community of criminal design.[34]
Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its finding of
conspiracy, the Sandiganbayan stressed that the two accused are father and son. Granting that this is
not even ad hominem, we are unaware of any presumption in law that a conspiracy exists simply
because the conspirators are father and son or related by blood.
WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution
of 1 October 1997 of the Sandiganbayan are REVERSED and SET ASIDE, and petitioners
FRANCISCO M. LECAROZ and LENLIE LECAROZ are ACQUITTED of all the thirteen (13) counts
of estafa through falsification of public documents (Crim. Cases Nos. 13904-13916). The bail bonds
posted for their provisional liberty are cancelled and released. Costs de oficio.
SO ORDERED.
EN BANC
[G.R. No. 135864. November 24, 1999]
AUGUSTO TOLEDO, Petitioner, vs. COMMISSION ON ELECTIONS, RESURRECCION Z.
BORRA in his capacity as Executive Director, Commission on Elections and CIVIL SERVICE
COMMISSION, Respondents.
DECISION
PURISIMA, J.:
Before the Court is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court
assailing as tainted with grave abuse of discretion amounting to lack of or excess jurisdiction Resolution No. 982768 issued on October 6, 1998 by respondent Commission on Elections, limiting the extended service of
petitioner Augusto Toledo as Director IV, Education and Information Department of COMELEC to October 31,
1998.
The antecedent facts that matter are as follows:

On May 21, 1986, Atty. Augusto Toledo, the herein petitioner, was appointed Manager of the Education and
Information Department by the then Chairman of the Commission on Elections, Ramon Felipe, Jr., and assumed
office, as such, on June 16, 1986. At the time of his appointment, the petitioner was 59 years old.
On January 29, 1989, the Commission on Elections revoked his appointment and declared the same null and
void for having been issued in violation of Civil Service Commission (CSC) Memorandum Circular No. 5,
Series of 1990, which prohibits the appointment of persons, who are 57 years old or older in the government
service, without the prior approval of the Civil Service Commission.
On appeal, the Civil Service Commission upheld the said Resolution of the COMELEC. Upon denial of his
motion for reconsideration, petitioner elevated the matter to this Court via a petition for certiorari dated May 7,
1990, docketed as G.R. No. 92646-47.
On October 4, 1991, this Court granted the petition, upheld the validity of petitioners appointment, and ordered
the respondent COMELEC to reinstate petitioner to his position. [1
On April 7, 1992, petitioner was reinstated to his former position. However, on the following day, April 8, 1992,
he was designated Acting Provincial Election Supervisor of Basilan. Because the said position was four salary
grades lower than his original position, petitioner refused the designation. Instead, on June 16, 1992 petitioner
presented a motion to cite the COMELEC in contempt for its failure to comply with the October 4, 1991
decision of the Court. The said motion was initially denied, prompting petitioner to move for reconsideration.
During the pendency of his motion for reconsideration, petitioner reached the retirable age of sixty-five years.
However, the COMELEC, per Minute Resolution No. 92-3198 of December 8, 1992, resolved to allow
petitioner Toledo to continue in the service to complete his fifteen years of service subject to the outcome of the
administrative case to be filed against him. [2 This was confirmed in the Memorandum issued by COMELEC
Personnel Director Zenaida S. Soriano on December 17, 1992. [3
On August 3, 1993, petitioners motion for reconsideration was granted and respondent COMELEC was ordered
to comply with the October 4, 1991 decision of this Court.
On August 26, 1993, under its Minute Resolution No. 93-2052,[4 COMELEC reinstated petitioner as Director
IV of the Education and Information Department. Shortly after his reinstatement, he was detailed as Acting
Director IV of the Election and Barangay Affairs Department, notwithstanding the fact that he was already sixty
five years old.
In 1995, petitioner Toledo went on a prolonged leave of absence, for which reason, he was given an
unsatisfactory performance rating duly concurred in by then Chairman Christian Monsod. However, upon the
assumption of Chairman Bernardo Pardo, the said rating was changed to satisfactory.
On May 31, 1995, this Court, in the case of Rabor vs. Civil Service Commission, [5 upheld the validity of Civil
Service Memorandum Circular No. 27, Series of 1990, which provides that the extension of service of
compulsory retirees to complete the fifteen year service requirement for retirement shall be granted for a period
not exceeding one year.
Thus, on July 13, 1995, Chairman Pardo issued a Memorandum[6 to Atty. Zenaida Soriano (Director, Personnel
Department), Atty. Ernesto Herrera (Director , Finance Department), Atty. Jose Balbuena (Director, Law
Department) and Atty. Resurreccion Borra (Executive Director), informing them that the COMELEC has not
extended the services of petitioner Toledo beyond age sixty five, and requiring petitioner Toledo to show cause
why his services should be extended.

At the same time, COMELEC sought a ruling from the Civil Service Commission on the validity of the
extension of service petitioner Toledo in light of the ruling of this Court in the case of Rabor.
On June 27, 1997, the Civil Service Commission replied to COMELECs query and issued Resolution No. 973167, ruling that the case of Rabor was not applicable because at the time petitioners service was extended, the
Cena ruling was in effect; and disposing thus:

WHEREFORE, the Commission rules that the extension of service of Augusto V. Toledo beyond his
65th birthday is at the discretion of the Chairman of the Commission on Elections.
Again, COMELEC sought a clarification of the aforesaid Resolution and in response, the Civil Service
Commission in its Resolution No. 981075, dated May 15, 1998, resolved that since the extension of services of
Toledo was at the discretion of the COMELEC, it is also within the prerogative of COMELEC to decide whether
or not it will now limit the period of such extension."
Petitioners performance rating for the two semesters of 1997 was unsatisfactory. Likewise for the first semester
of 1998, Chairman Pardo gave petitioner an unsatisfactory rating.
On October 6, 1998, respondent COMELEC issued the assailed Resolution, Resolution No. 98-2768 which
provides thus:

Considering the circumstances of the extension of the service of Atty. Toledo beyond his 65th birthday
and considering further his unsatisfactory performance rating for more than two semesters, sufficient in
itself to terminate his services, and considering, finally, that he is more than seventy one (71) years old
now, in the interest of the service and in line with the CSC Resolution No. 981075, dated May 15,
1998, the Commission exercising its authority to extend or limit the extension of service, RESOLVED
to limit the extended service of Atty. Toledo to October 31, 1998.
Petitioner Toledo thus filed the instant petition ascribing grave abuse of discretion amounting to lack of or
excess jurisdiction to respondent COMELEC in issuing the aforementioned Resolution and posing as lone issue:
Whether the Commission on Elections and Civil Service Commission erred in limiting the extended service of
the petitioner?
To buttress his position, petitioner Toledo invokes Section 11 of Presidential Decree 1146, otherwise known as
the Government Service Insurance System (GSIS) Act of 1977 and the cases of Cena vs. Civil Service
Commission,[7 and Gobantes vs. Civil Service Commission[8. It is theorized that P.D. 1146 & the cases of Cena
& Gobantes enjoin the government agency concerned to extend, if it favorably exercises its discretion to do so,
the service of the employee to a period of not less than that which is required to complete 15 years of service in
order to qualify him for retirement with full benefits, otherwise the beneficial intendment of P.D. 1146 as
affirmed in Cena and Gobantes would be rendered nugatory.
Petitioner argues that the Administrative Code of 1997 and the ruling of this Court in the case of Rabor vs. Civil
Service Commission,[9 are of no moment because the Code was enacted in 1997 and Rabor was decided in 1995
or after Cena and Gobantes which was the doctrine in effect at the time when the respondent COMELEC
allowed petitioner to continue in the service to complete 15 years, citing Civil Service Commission Resolution
No. 97- 3167:

The ruling of the Supreme Court in the case of Dionisio Rabor vs. Civil Service Commission, 244
SCRA 614 (May 31, 1995) which overturned the Cena ruling could not yet be applied to the instant

case because it is of later application. At the time Toledos service was extended, the Cena ruling was in
effect. xxx
Petitioner also maintains that the COMELEC and/or Civil Service Commission cannot limit petitioners extended
service after it has so been extended without violating his vested right; that by allowing petitioner to continue in
the service to complete the 15 years of service in accordance with P.D. 1146 and in line with the prevailing
doctrine in Cena and Gobantes, he became vested with the right to continue in the service to complete the 15
years of service prior to retirement.
Third, it is petitioners submission that the unsatisfactory performance rating of petitioner alleged by COMELEC
may be a cause for the termination of his services but it cannot be a ground to limit petitioners extended service.
Petitioners contentions are untenable.
Section 11 of the Revised Government Service Insurance Act of 1977 (P.D. 1146) provides the conditions for
entitlement to old-age pension. Paragraph (b) thereof reads:
xxx xxx xxx

(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an
employee of sixty-five years of age with at least 15 years of service: Provided, that if he has less than
fifteen years of service, he shall be allowed to complete the fifteen years. (emphasis ours)
xxx xxx xxx
In accordance therewith, the Civil Service Commission promulgated Memorandum Circular No. 27, Series of
1990, which categorically states:

TO: ALL HEADS OF DEPARTMENTS, BUREAUS AND AGENCIES OF THE

NATIONAL/LOCAL GOVERNMENTS INCLUDING GOVERNMENT-OWNED AND/OR
CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS
SUBJECT: Extension of service of compulsory retiree to complete the fifteen years service
requirement for retirement purposes
Pursuant to Civil Service Commission Resolution No. 90-454 dated May 21, 1990, the Civil Service
Commission hereby adopts and promulgates the following policies and guidelines in the extension of
services of compulsory retirees to complete the fifteen years service requirement for retirement
purposes:
1. Any request for extension of service of compulsory retirees to complete the fifteen (15) years
service requirement for retirement shall be allowed only to permanent appointees in the career
service who are regular members of the Government Service Insurance System (GSIS), and shall be
granted for a period not exceeding one (1) year. (emphasis ours)
The validity of the said Memorandum Circular has already been pronounced in the case of Rabor vs. Civil
Service Commission[10 where this Court ruled:

xxx Civil Service Memorandum Circular No. 27, Series of 1990, more specifically paragraph (1)
thereof, is hereby declared valid and effective. Section 11 (b) of P.D. No. 1146, must, accordingly,
be read together with Memorandum Circular No. 27. We reiterate, however, the holding in Cea that the
head of the government agency concerned is vested with discretionary authority to allow or disallow
extension of the service of an official or employee who has reached sixty-five (65) years of age without
completing fifteen (15) years of government service; this discretion is, nevertheless, to be exercised
conformably with the provisions of Civil Service Memorandum Circular No. 27, Series of 1990.
In upholding the validity of CSC Memorandum Circular No. 27, this Court declared that the limitation provided
by the said Circular on permissible extensions of service after reaching the compulsory retirement age of sixtyfive has a reasonable relationship with or is germane to the purpose of civil service laws on retirement. And as
reiterated in the said case, the policy considerations behind the limitation on the maximum extension of service
allowable for compulsory retirees, as summarized in the dissenting opinion of Justice Grio-Aquino in the case of
Cena, were as follows:

xxx extending the service of compulsory retirees longer than one (1) year would: (1) Give a premium
to late-comers in the government service and in effect discriminate against those who enter the service
at a younger age (2) Delay the promotion of the letter and of next-in-rank employees; and (3) Prejudice
the chances for employment of qualified young civil service applicants who have already passed the
various governmental examinations but must wait for jobs to be vacated by extendees who have long
passed the mandatory retirement age but are enjoying extension of their government service to
complete 15 years so they may qualify for old age pension.
Thus, the one-year limitation on the extension of service of a government employee who has reached the
compulsory retirement age of sixty-five imposed under Memorandum Circular No. 27 was held valid and
reasonable.
So too, in the case of Rabor, this Court expressed anxiety over the difficulty brought about by the Cena doctrine
when considered together with the decided case of Toledo vs. CSC [11, expressing thus:

When one combines the doctrine of Toledo with the ruling in Cena, very strange results follow. Under
these combined doctrines, a person sixty four (64) years of age may be appointed to the government
service and one (1) year later may demand extension of his service for the next fourteen (14) years; he
would retire at age seventy-nine (79). The net effect is thus that the general statutory policy of
compulsory retirement at sixty-five (65) years is heavily eroded and effectively becomes
unenforceable. xxx
This is now the problem posed by the instant case. Petitioners appointment and entry into the government
service at the age of fifty-nine years has already been upheld as valid in the case of Toledo vs. CSC [12 where the
Court held that a person fifty-seven years of age may be appointed to the Civil Service. [13 Moreover, as
correctly ruled by the Civil Service Commission under Resolution No. 97- 3167, the doctrine in the case of
Rabor cannot yet be applied to the petitioner because at the time petitioner Toledos service was extended, it was
the Cena doctrine that was still in effect. And under such doctrine, the head of the government agency concerned
is vested with discretionary authority to allow or disallow the extension of service of an official or employee
who has reached sixty-five (65) years of age without completing fifteen (15) years of government service.
If these doctrines be applied to the case at bar, Petitioner, who reached the compulsory retirement age of sixtyfive in 1992 and has rendered only six years of government service, would need nine (9) more years to complete
the fifteen-year service requirement and would finally retire at the age of seventy-five in year 2001. The problem

foreseen in the case of Rabor would then become a reality.

Since the applicable doctrine is that enunciated in the case of Cena, the extension of petitioners service beyond
1992 is at the discretion of the COMELEC Chairman. Thus, the extension of petitioners service through
COMELEC Resolution No. 93-2052 on August 26,1993 was an exercise of such discretion. And the limitation
of his extended service up to October 31, 1998 was well within the discretion granted to the COMELEC
Chairman under the Cena ruling. Hence, the assailed COMELEC Resolution No. 98-2768 is valid and the
COMELEC did not gravely abuse its discretion when it issued the same resolution.
And, petitioner avers that his unsatisfactory performance rating may be a cause for the termination of his
services but it cannot be a ground to limit his extended service. Such contention is untenable. In the case of
Cena, it was held that in resolving the question of whether or not to allow a compulsory retiree to continue
his/her service to complete the 15-year service, there must be present an essential factor before an application
under Sec.11 par. (b) of P.D. 1146 may be granted by the government office concerned. In the case of the
judiciary, such factors as competence, integrity and dedication to the public service were considered. [14
Parenthetically, the employees work performance is also a major factor. Since petitioners performance rating for
three consecutive semesters was all unsatisfactory, it was proper for COMELEC not to extend his service
anymore.
WHEREFORE, the petition is hereby DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.

EN BANC
[G.R. No. 123648. December 15, 1997]
ABDULLAH A. JAMIL, petitioner, vs. THE COMMISSION ON ELECTIONS, (New) MUNICIPAL
BOARD OF CANVASSERS OF SULTAN GUMANDER and ALINADER BALINDONG,
respondents.
DECISION
KAPUNAN, J.:
Petitioner Abdullah A. Jamil and private respondent Alinader Balindong were among the mayoralty
candidates in the municipality of Sultan Gumander, Lanao del Sur, during the May 8, 1995 elections.
Said municipality had a total of thirty-two (32) precincts.
On May 20, 1995, during the canvassing of the election returns by the Municipal Board of Canvassers
(MBC) headed by Saadia Sansarona, private respondent objected to the inclusion of four (4) election
returns from Precinct Nos. 5, 10-1, 20-1 and 20 on the following grounds: a) Precinct Nos. 5 and 10-1
- the election returns were prepared under duress; b) Precinct No. 20-1 - the election return was
spurious, the Chairman, Poll Clerk and Third Member of the Board of Election Inspectors did not sign

the election return; c) Precinct No. 20 - the canvassed election return was not an authentic copy as the
original was missing.
On May 23, 1995, the Sansarona MBC issued its rulings on three (3) of the said objections, thus:
WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, after
deliberating on the objection to the inclusion/exclusion of
ELECTION RETURN(S) NUMBER 661229
OF PRECINCT NUMBER

of the City/Municipality of Sultan Gumander, and admitting the supporting evidence consisting of
EXHIBIT A Affidavit of Basir Sarip for petitioner; and
EXHIBIT 1 Affidavit of Basir Sarip withdrawing his previous affidavit
'2.'

Affidavit of Malic Solaiman for oppositor,

hereby RULE as follows:

It created confusion on the part of the Board on whom to rely on the two (2) contradicting affidavits of
Basir Sarip, Chairman of Prec. No. 5, hence the election return is hereby set aside pursuant to
paragraph E, Sec. 33 Comelec Res. No. 2756 for further investigation.[1]
xxx.
WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, after
deliberating on the objection to the inclusion/exclusion of
ELECTION RETURN(S) NUMBER 661236
OF PRECINCT NUMBER 10-1
of the City/Municipality of Sultan Gumander, and admitting the supporting evidence consisting of
EXHIBIT A- Affidavit of Monaintan Maruhom
B-

ER661236

C-

List of BEIs for petitioner; and

EXHIBIT 1-

ER 661236

2- Affidavit of Liling Adapun

3- Affidavit of Farida Jamil for oppositor,

hereby RULE as follows:
The election Return is hereby set aside to go deeper into the contradicting testimonies of the Chairman
of Prec. No. 10-1 and watchers of the respondent. [2]
xxx.
WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, after
deliberating on the objection to the inclusion/exclusion of
ELECTION RETURN(S) NUMBER 661251
OF PRECINCT NUMBER 20-1
of the City/Municipality of Sultan Gumander Lanao Del Sur, and admitting the supporting evidence
consisting of
EXHIBIT A- Affidavit of Basher Randa

EXHIBIT

B-

Appointment of Basher Randa

C-

ER No. 661251 for petitioner; and

1- ER 661251
2-

Affidavit of Baingcong Mandagla

3-

Affidavit of Azisa Abdullah for oppositor,

hereby RULE as follows:

This Election returns is set aside and summons will be issued for the two (2) BEIS who failed to affix
their signatures and explain the alleged increase of votes of a candidate and the use of unauthorized
envelope without seal containing ER and thereafter a ruling on the matter shall be rendered.[3]
No ruling was made with respect to Election Return No. 661252 of Precinct 20.
On May 25, 1995, the composition of the MBC was changed. Saadia Sansarona was replaced by Casan
T. Macadato as Chairman of the Board.
On May 30, 1995, the Macadato MBC issued its ruling anent Election Return No. 661252 of Precinct
No. 20 as follows:
WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, after
deliberating on the objection to the inclusion/exclusion of

ELECTION RETURN(S) NUMBER 661252

OF PRECINCT NUMBER 20
of the City/Municipality of Sultan Gumander , and admitting the supporting evidence consisting of
EXHIBIT __ _________________________________________
_________________________________________
_______________________ for petitioner; and
EXHIBIT __
_________________________________________
_________________________________________
_______________________ for oppositor,
hereby RULE as follows:
To deny the petition for the exclusion of Election Return No. 661252 for being without any factual and
legal basis. And that Comelec Resolution No. 2756, Sec. 24, says that when an Election Return is lost
and destroyed, The Board of Canvassers upon prior authority from the Commission may use any of the
authentic copies of said return. [4]
On June 1, 1995, the Macadato Board convened and resumed its canvass using the Municipal
Treasurers copy of the election return from Precinct No. 20.
Said board, likewise, conducted its investigation with respect to the returns from Precinct Nos. 5, 10-1
and 20-1. Said investigation yielded the report dated June 5, 1995, to wit:
MEMORANDUM FOR:

The Honorable Chairman

Commission on Elections
Manila
FROM: Acting Election Officer
Sultan Gumander, Lanao del Sur
DATE: June 5, 1995
S U B J E C T : INVESTIGATION REPORT

Respectfully forwarded to the Honorable Chairman, Commission on Elections the result of

investigation in connection with Precinct Nos. 5, 10-1, 20 and 20-1.
The previous Municipal Board of Canvasser composed of Saadia Sansarona, Saripali Benito and Ismael
Maulay rendered rulings in the election returns in Precinct Nos. 5, 10-1 and 20-1 as follows:

Precinct No. 5, ER No. 661229: SET ASIDE

a)
Mr. Basir Sarip, Chairman, BEI executed two affidavits. In first affidavit executed before Atty.
Disalo, Mr. Sarip said that he was instructed to accomplish the election return to make sure that Mayor
Abdullah Amatonding will win in the precinct. In second affidavit executed before Atty. Mortaba, Mr.
Sarip stated that he was forced to sign the first affidavit so he disown and withdraw the first affidavit.
Mr. Sarip also stated in the second affidavit that the election in Precinct No. 5 is clean and the election
return is the true result of the election.
b)
On June 3, 1995, Mr. Sarip personally appeared BEFORE me and executed sworn statement
stating that he was forced by Taratingan Balindong to sign the first affidavit at Banday, Malabang,
Lanao del Sur and was not allowed to read it. Mr. Sarip totally disowned the contents of the first
affidavit. Mr. Sarip also requested that his second affidavit contains the truth that is that the election in
Precinct 5 is clean and orderly and the election returns contains the true result of election in Precinct
No. 5 and said election returns should be included in the canvass.
Recommendation: INCLUDE ER NO. 661229 IN THE CANVASS OF
SULTAN GUMANDER.

VOTES IN

Precinct No. 10-1, ER No. 661236: SET ASIDE

a)
Mrs. Monaintan Marohom, Chairman, BEI executed an affidavit that they were ordered by
Radia Balindong, Election Assistant to make sure Mayor Abdullah Amatonding win in our precinct
with threat that something will happen if they do not follow.
b)
A representative of Mayor Jamil submitted to me copy of another affidavit of Mrs. Monaintan
Marohom stating that she was forced to sign an affidavit at the house of Mida Balindong at Campo
Muslim, Malabang by her cousin Yasser Macadato and she was not able to read it. Mrs. Marohom
stated that her first affidavit which she signed out of fear because of the threat of Yasser Macadato is
false because the truth is that the election in Precinct 10-1 is clean, orderly and honest.
c)
The signature of Mrs. Marohom in her first affidavit is different from her signature found in the
election returns, while her signature in the second affidavit executed before Atty. Mortaba is similar or
identical with her signature in the election returns.
Recommendation: INCLUDE ER NO. 661236 IN THE CANVASS OF VOTES IN SULTAN
GUMANDER. NO LEGAL BASIS TO EXCLUDE THE ELECTION
RETURNS WITH MERE AFFIDAVIT OF ONE OF THE THREE MEMBERS
OF THE BEI.
Precinct No. 20-1, ER No. 661251: SET ASIDE RULING TO BE
RENDERED AFTER BEI ARE SUMMONED.
a)
Mr. Basher Randa executed an affidavit that he is the Chairman of the BEI in Precinct No. 20-1
but that when he went to the MSU Grandstand, the election return is already being prepared by
unauthorized persons.

b)
Mrs. Baingcong Mandagla who appeared in the election returns to be the Chairman of the BEI
executed an affidavit that she is the Poll Clerk but that Mr. Basir Randa did not show up when the
election returns was to be prepared so she was designated by the COMELEC Office to act as Chairman.
The appointment of Mrs. Mandagla shows the notation for her to serve as Chairman;
c)
The Poll Clerk, Monette Saripada and the third member, Azisa Abdullah did not sign the
election returns;
d)
On May 26, 1995, Monette Saripada and Azisa Abdullah appeared before the MBC and signed
the election returns in the presence of the watchers of various candidates and nobody objected to the
signing of the election returns which affirm that they are the persons who appeared in the election
returns to be the Poll Clerk and Third Member. The signing was photographed by the representatives
of Mayor Jamil.
Recommendation: INCLUDE ER NO. 661251 IN THE CANVASS OF VOTES IN SULTAN
GUMANDER.
The investigation was conducted because the previous MBC merely SET ASIDE the three election
returns for further investigation. The newly constituted MBC has to investigate for the guidance of
higher authorities.
(Sgd.) CASAN T. MACADATO
Chairman, Municipal Board of Canvassers [5]
On June 8, 1995, private respondent filed an appeal to the Commission on Elections (COMELEC) from
the ruling dated May 30, 1995 of the Macadato Board denying his petition for exclusion of Election
Return No. 661252 of Precinct No. 20. The case was docketed as SPC No. 95-271.[6]
On the same day, petitioner filed an appeal to the COMELEC challenging the rulings dated May 23,
1995 of the Sansarona MBC setting aside for further investigation or action with respect to the election
returns from Precinct Nos. 5, 10-1 and 20-1. Petitioner maintained that the contested election returns
reflect the true will of the electorate. This case was docketed as SPC No. 95-272. [7]
On June 26, 1995, while the two (2) cases were still pending in the COMELEC, the Macadato Board
proclaimed petitioner Abdullah Jamil and other winning candidates as the candidates obtaining the
highest number of votes in the preceding election. [8]
On July 11, 1995, the Second Division of the COMELEC issued the following order, viz:
Considering the Omnibus Resolution on Pending Cases of the Commission en banc promulgated on
June 29, 1995, items 2 and 3 of which read:
2. All cases which were filed beyond the reglementary period or not in the form prescribed under
appropriate provisions of the Omnibus Election Code, Republic Acts No. 6646 and 7166 are hereby
likewise dismissed;

3. All other pre-proclamation cases which do not fall within the class of cases specified in paragraphs
(1) and (2) immediately preceding shall be deemed terminated pursuant to Sec. 16, R.A. 7166. Hence,
all the rulings of board of canvassers concerned are deemed affirmed. Such board of canvassers are
directed to reconvene forthwith, continue their respective canvass and proclaim the winning candidates
accordingly, if the proceedings were suspended by virtue of pending pre-proclamation cases;
the Commission (Second Division), hereby ORDERS to note the report of the acting Election Officer
contained in SPC No. 95-271 and to consider SPC No. 95-272 TERMINATED.
WHEREFORE, the Municipal Board of Canvassers of Sultan Gumander, Lanao del Sur is hereby
DIRECTED to reconvene and proclaim the winning candidate for mayor of the municipality of Sultan
Gumander, Lanao del Sur.
SO ORDERED. [9]
On July 17, 1995, the Macadato Board submitted its report implementing the July 11, 1995 order of
the Second Division of the COMELEC. Said report reads:
Respectfully forwarded to the Honorable Chairman, Commission on Elections, Manila, thru the
Honorable Commissioner In Charge, Region XII, the compliance of the board of canvassers with the
Order dated July 11, 1995 of the Honorable Second Division, Commission on Elections in SPC Nos.
95-271 and 95-272 directing the board of canvassers to reconvene and proclaim the winning candidate
for Mayor of Sultan Gumander, Lanao del Sur:
A. The previous board of canvasser headed by Saadia Sansarona SET ASIDE FOR FURTHER
INVESTIGATION the election returns in Prec. Nos. 5, 10-1 and 20-a of Sultan Gumander, Lanao del
Sur. The reconstituted board of canvassers conducted an investigation and found no defect in the
election returns in the three precincts and submitted its INVESTIGATION REPORT dated June 5,
1995 recommending the INCLUSION OF THE ELECTION RETURNS IN PREC. NOS. 5 (661229),
10-1 (661236) and 20-1 (661252) in the canvass, copies of the investigation report are attached as
ANNEXES A to A-1 hereof.
B. In addition to its report, the board of canvassers as respondent in SPC No. 95-272 submitted its
ANSWER dated June 9, 1995 indicating its findings in the investigation as shown by the
INVESTIGATION REPORT, and also submitted as part of its answer the SWORN STATEMENT
dated June 6, 1995 of MS. MONAINTAN MAROHOM, chairman of Prec. No. 10-1 executed before
the Chairman of the board of canvassers stating under oath that the election returns in said precinct is
genuine and authentic and contains the true and correct votes of the candidates, copies of the Answer
are attached as ANNEXES B to B-3 hereof and the sworn statement of Ms. Morohom as
ANNEXES C to C-1 hereof.
C. On June 12, 1995, MR. BASIR SARIP, Chairman of Prec. No. 5 and MS. MONAINTAN
MAROHOM, Chairman of Prec. No. 10-1 personally appeared before the HON. REMEDIOS
SALAZAR-FERNANDO, Presiding Commissioner of the Second Division, COMELEC and in their
SWORN STATEMENTS dated June 13, 1995 affirmed before the Presiding Commissioner, in the
presence of Atty. Alioden Dalaig and Atty. Jacob Malik, that the election returns in Prec. Nos. 5 and
10-1 respectively were genuine and authentic and contain the true and correct votes of the candidates,
that their affidavits that were submitted by candidate Balindong to the board of canvassers was signed

by them against their will for fear of their lives and they DISOWNED or WITHDRAW all statements
contained therein the same being false, and the board was furnished with copies of said sworn
statements, copies thereof are attached as ANNEXES D to D-1 (SS of Basir) and E to E-1
(SS of Marohom) hereof.
D. In the case of Prec. No. 20-1, the two members of the BEI who failed to sign the election returns
although they have thumbmarked the same, appeared before the board of canvassers and signed the
election returns in the presence of the watchers of the candidates, photographs of the signing was
submitted to the Honorable Commission through SPC No. 95-272 as part of the evidence therein.
E. Due to the above developments, particularly the fact that Mr. Basir Sarip, Chairman of Prec. No. 5
and Ms. Monaintan Marohom, Chairman of Prec. No. 10-1, appeared before the Honorable Presiding
Commissioner of the Second Division and affirmed before her the authenticity, genuineness and
accuracy of the election returns in Prec. Nos. 5 and 10-1, the fact that the two members of the BEI in
Prec. No. 20-1, signed the election returns, and that the investigation of the board of canvassers shows
that the election returns in the three precincts has no defect, the board of canvassers in accordance with
its sworn duty has to include in the canvass the election returns in Prec. Nos. 5, 10-1 and 20-1.
F. After including in the canvass the election returns in Prec. Nos. 5, 10-1 and 20-1, it shows that the
votes in Prec. No. 10 (should be 20) which is the subject of appeal in SPC No. 95-271 will no longer
affect the results of the elections in Sultan Gumander, Lanao del Sur. Accordingly, the board of
canvassers PROCLAIMED CANDIDATE ABDULLAH AL JAMIL ON JUNE 26, 1995 AS THE
DULY ELECTED MAYOR of Sultan Gumander, Lanao del Sur, copies of the Certificate of Canvass
of Votes and Proclamation and the MINUTES OF THE PROCEEDINGS OF THE BOARD are
attached as ANNEXES F and G to G-1 respectively.
G. The certificate of canvass of votes and proclamation duly signed, thumbmarked and sealed in the
prescribed envelope was submitted to the Records and Statistics Division, COMELEC on July 5, 1995,
copy of the certificate of appearance of Casan Macadato, Chairman of the board when he submitted the
proclamation paper is attached as ANNEX H hereof.
In view of the above, the board of canvassers have complied with its duty to proclaim the winning
candidate for Mayor of Sultan Gumander in accordance with the Order dated July 11, 1995.
(SGD.) CASAN T. MACADATO
Chairman

(SGD.) SARIPALI BENITO

Vice-Chairman

(SGD.) ESMAIL MAULAY

Secretary [10]
On July 24, 1995, private respondent filed an urgent motion before the COMELEC to annul the
proclamation of petitioner as the winning candidate for mayor on the ground that the proclamation was
without the authority of the COMELEC, and to constitute a new Board of Canvassers.[11]
On August 24, 1995, the Second Division of the COMELEC, proceeding from the premise that the
election returns from Precincts Nos. 5, 10-1 and 20-1 were excluded by the Sansarona MBC applying

the Omnibus Resolution of the COMELEC dated June 29, 1995, [12] issued an order disposing thereby:
xxx the Commission (Second Division) RESOLVED, as it hereby RESOLVES to ANNUL the
proclamation of petitioner Abdullah A. Jamil made by the Municipal Board of Canvassers of Sultan
Gumander, Lanao del Sur on June 10, 1995 and June 26, 1995, respectively, it being contrary to law
and jurisprudence; and, to RELIEVE the Municipal Board of Canvassers of Sultan Gumander, Lanao
del Sur, chaired by Mr. Casan Macadato of its duties and functions as such.
ACCORDINGLY, the Regional Election Director, Region XII, Cotabato City, is hereby DIRECTED
to constitute a new Municipal Board of Canvassers for the Municipality of Sultan Gumander, Lanao del
Sur, which shall forthwith RECONVENE and PROCLAIM candidate ALINADER ALINDONG as the
lawfully elected Mayor of the Municipality of Sultan Gumander, Lanao del Sur.
SO ORDERED.[13]
On August 31, 1995, petitioner filed an Urgent Ex-Parte Motion to Suspend Implementation of the
Order dated August 24, 1995.[14]
On the same day, petitioner likewise filed his Motion for Reconsideration (With Prayer to Suspend
Implementation of the Order dated August 24, 1995).[15]
On September 5, 1995, pursuant to the August 24, 1995 order of the COMELEC, the newly constituted
Municipal Board of Canvassers, this time headed by Darangina Cariga, proclaimed private respondent
Alinader Balindong winner in the election after having obtained a total of 2,499 votes. [16]
On September 7, 1995, the COMELEC en banc issued the following order, viz:
Acting on the URGENT EX-PARTE MOTION filed on August 31, 1995 by petitioner-appellant
through counsel praying that an order be immediately issued, directing the newly constituted Municipal
Board of Canvassers to suspend the implementation of the Order of August 24, 1995, the Commission
en banc, considering that a motion for reconsideration was filed and that the entire records of these
cases were already elevated to it, hereby orders the newly constituted Municipal Board of Canvassers
of Sultan Gumander, Lanao del Sur to suspend the implementation of the order of the Second Division
dated August 24, 1995 until further orders.
SO ORDERED. [17]
On February 12, 1996, the COMELEC en banc by a vote of 3 - 3, issued a Resolution which reads in
full:
The record shows that the Commission deliberated on the motion for reconsideration that petitioner
appellant Abdullah A. Jamil (In SPC No. 95-272) filed on August 31, 1995, seeking to set aside the
resolution of the Second Division promulgated on August 24, 1995, authorizing the reconstituted
municipal board of canvassers, Sultan Gumander, Lanao del Sur, to proclaim candidate Alinader
Balindong as the lawfully elected mayor of the said municipality.

Resolving the motion, the Commission members reached a consensus to deny the petitioner Jamils
motion for reconsideration and to affirm the appealed order of the Second Division, dated August 24,
1995.
Accordingly, the Commission assigned Commissioner Gorospe to prepare the corresponding
resolution, which he did, and to which six (6) Commissioners had affixed their signatures. When the
resolution was referred to Commissioner Maambong, he asked for time to study the same and to
prepare his dissent, without asking for a reconsultation. He prepared a dissenting opinion that he
circulated to all the Commissioners.
Before the Commission could promulgate the majority resolution, four (4) Commissioners, namely
Commissioners Remedios A. Salazar-Fernando, Graduacion A. Reyes Claravall, Julio F. Desamito and
Teresita Dy-Liacco Flores, indicated their desire to re-study the case. Thereafter, Commissioners
Fernando and Flores indicated that they would vote to set aside the resolution of the second division
and would join in the opinion of Commissioner Maambong. However, Commissioner Fernando
prepared her own separate opinion. When the case was referred to Commissioner Gorospe, he voted to
affirm the appealed resolution and to maintain his ponencia. Chairman Pardo and Commissioner
Desamito voted to continue their concurrence to the ponencia. Unfortunately, before Commissioner
Claravall could enter her final vote, she suffered a stroke from which she did not recover and passed
away on January 14, 1996.
Consequently, at this point, the members of the Commission are evenly divided in their opinion, and
pursuant to the Comelec Rules of Procedure, the Commission re-heard the case and deliberated anew
thereon. After such re-hearing and deliberation, the members was still evenly divided in opinion.
WHEREFORE, the Chairman hereby certifies that the members of the Commission were evenly
divided in their opinion on petitioner-appellant Jamils motion for reconsideration and pursuant to Rule
18, Section 6, Comelec Rules of Procedure, the motion shall be DENIED.
ACCORDINGLY, the Commission hereby DENIES the motion for reconsideration that petitionerappellant Abdullah A. Jamil filed on August 31, 1995, and AFFIRMS the resolution of the Second
Division, promulgated on August 24, 1995.
This resolves all the pending incidents in the above cases.
SO ORDERED.[18]
Hence, the present petition for certiorari brought before us contending that the COMELEC en banc
committed grave abuse of discretion in issuing its February 12, 1996 Order because:
(a)
Majority of the Commissioners-Members of the Second Division had already decided to reverse
their August 24, 1995 Order. [19]
(b)
Petitioners proclamation was based on complete canvass of returns while the proclamation of
private respondent was based on incomplete returns. Thus, the proclamation of the petitioner should
be sustained and the proclamation of the private respondent must be annulled. [20]

(c)
The vote of Commissioner Claravall should have been considered in favor of the petitioner
considering that, before she died, she had already expressed her opinion in favor of the petitioner. [21]
From the foregoing enumeration of alleged errors committed by respondent COMELEC, we are to
resolve two issues, namely: First, which of the two (2) proclamations made by two (2) different MBCs
in Sultan Gumander, Lanao del Sur is valid - the proclamation of petitioner Abdullah Jamil dated June
26, 1995 by the Macadato Board or the proclamation of private respondent Alinader Balindong dated
September 5, 1995 by the Cariga Board; Second, whether the manner and procedure by which the
members of respondent COMELEC voted in the instant case was in accord with their own Rules of
Procedure.
I
Petitioner Jamil insists that his proclamation by the Macadato Board as winner in the mayoralty race of
the said municipality was based on a complete canvass, all election returns having been included
therein, while the proclamation of private respondent Balindong by the Cariga Board was based merely
on an incomplete canvass, as the three (3) election returns from Precinct Nos. 5, 10-1 and 20-1 were
excluded from the canvass. [22]
We are not persuaded.
It may be recalled that after the May 8, 1995 elections, and during the canvass of the election returns by
the MBC of Sultan Gumander, Lanao del Sur headed by Saadia Sansarona, private respondent
Balindong objected to the inclusion of four (4) election returns from Precinct Nos. 5, 10-1, 20-1 and 20
for various reasons already stated. Acting on the objections, the Sansarona MBC issued its rulings
on May 23, 1995 as follows: setting aside the election returns from Precinct No. 5 for further
investigation; setting aside the returns from Precinct No. 10-1 to go deeper into the contradicting
testimonies of the Chairman of Precinct No. 10-1 and the watchers of the respondent; and setting
aside the election returns from Precinct No. 20-1 in order to summon the two BEIs who failed to
affix their signatures and explain the alleged increase of votes of a candidate and the use of
unauthorized envelope without seal containing the Election Returns and thereafter a ruling on the
matter shall be rendered. [23] No ruling was made on the questioned election return from Precinct No.
20.
It is readily observed that the May 23, 1995 issuances cannot be considered as rulings within the
contemplation of law; [24] they are not definitive rulings of exclusion by the MBC because they merely
deferred the inclusion of the election returns pending further investigation. Hence, they are not
rulings of the board of canvassers that are deemed affirmed within the purview of Comelecs
Omnibus Resolution on pending cases dated June 29, 1995. [25]
A few days later, Saadia Sansarona was replaced by Casan Macadato as chairman of the MBC.
Macadato, after discovering that there were no rulings made on the disputed election returns, decided to
conduct further investigation or action as recommended in the Sansarona MBC rulings. On May 30,
1995, the Macadato MBC issued a ruling denying the exclusion of the election returns from Precinct
No. 20. Thereafter, Macadato submitted his investigation report dated June 5, 1995, which he alone
signed, to the COMELEC simply recommending the inclusion of the election returns from Precincts 5,
10-1 and 20-1 without issuing a positive ruling thereon as the facts and circumstances would warrant.

As a consequence of the foregoing, private respondent Balindong appealed to the COMELEC the
ruling of the Macadato MBC denying the exclusion of the election returns from Precinct No. 20,
docketed as SPC No. 95-271. On his part, petitioner Jamil appealed to the COMELEC the rulings of
the Sansarona MBC deferring action on the returns from Precincts 5, 10-1 and 20-1, docketed as SPC
No. 95-272.
Meanwhile, on the basis of Macadatos investigation report to the COMELEC dated June 5, 1995
which was apparently mistaken as a ruling for the inclusion of the election returns from Precincts 5,
10-1 and 20-1, the Macadato MBC on June 26, 1995 proclaimed petitioner Jamil as winner of the
mayoralty race. The proclamation was made during the pendency of the two (2) cases before the
COMELEC.
On August 24, 1995, the Second Division of the COMELEC upon private respondents motion, issued
an order annulling the proclamation of petitioner Jamil and directing the constitution of new MBC to
proclaim private respondent Balindong as the lawfully elected mayor of Sultan Gumander. Against
petitioners protest, a new MBC headed by Darangina Cariga reconvened and proclaimed private
respondent Balindong winner of the May 8, 1995 elections in compliance with the COMELEC
resolution of August 24, 1995. Thus, on February 12, 1996, the COMELEC en banc, in an evenly
divided (3-3) vote, resolved to deny petitioner Jamils motion for reconsideration.
It is our considered view that both proclamations of petitioner and private respondent are invalid.
Clear it is that petitioner Jamil was proclaimed on June 26, 1995 after Casan Macadato, chairman of
the second MBC, conducted an investigation with respect to the inclusion or exclusion of the returns
from Precinct Nos. 5, 10-1 and 20-1 and after he submitted his investigation report, which he alone
signed, to the COMELEC on June 5, 1995 merely recommending the inclusion of the three (3) returns
in the canvass. As we have mentioned above, said investigation report was not in form or substance a
ruling of the MBC because it did not make a definitive pronouncement or disposition resolving the
issues regarding the questioned returns but only a recommendation to the COMELEC. There being no
ruling on the inclusion or exclusion of the disputed returns, there could have been no complete and
valid canvass which is a prerequisite to a valid proclamation.
Another fatal infirmity that vitiated petitioners proclamation was the violation of Section 245 of the
Omnibus Election Code which prohibits the proclamation by the Board of Canvassers of a candidate as
winner where returns are contested, unless authorized by the COMELEC.[26] No authority had been
given by the COMELEC to the MBC for the proclamation of petitioner Jamil.
The proclamation of private respondent Balindong for the same reason was null and void, as it was
not predicated on a complete and valid canvass, but on supposed rulings of the Sansarona MBC
which merely set aside for further investigation the three (3) challenged election returns from
Precinct Nos. 5, 10-1 and 20-1. Said proclamation had clearly no basis in fact and in law. It is a
settled rule that an incomplete canvass of votes is illegal and cannot be the basis of a valid
proclamation. [27] All of the votes cast in the election must be counted and all the returns presented to
the board must be considered as the disregard of the same would in effect disenfranchise the voters
affected. [28] A canvass cannot be reflective as the true vote of the electorate unless all the returns are
considered. [29]
II

On the matter of procedure, the vote of Commissioner Graduacion Claravall could not have been
considered when the COMELEC took evenly divided (3-3) vote in its February 12, 1996 Resolution.
Rule 18, Section 6 of the 1993 COMELEC Rules of Procedure clearly provides:
SEC. 6. Procedure if Opinion is Equally Divided.--When the Commission en banc is equally divided
in opinion; or the necessary majority cannot be had, the case shall be reheard, and if rehearing no
decision is reached, the action or proceeding shall be dismissed if originally commenced in the
Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all
incidental matters, the petition or motion shall be denied.
So that when COMELEC Chairman Bernardo Pardo and Commissioners Manolo Gorospe and Julio
Desamito voted to affirm the August 24, 1995 resolution of the Second Division as against the dissent
of Commissioners Regalado Maambong, Remedios Salazar-Fernando and Teresita Dy-Liacco Flores,
no rules were breached as the motion for reconsideration was deemed denied for having failed to get a
majority vote in accordance with the foregoing rule.
Moreover, it is immaterial whether Commissioner Claravall allegedly expressed or signified her
intention to vote for the granting of the motion for reconsideration and thereafter affixed her signature
on the questioned resolutions. We take judicial notice of the fact that Commissioner Claravall passed
away on January 14, 1996, clearly twenty-nine (29) days prior to the promulgation of the questioned
resolution on February 12, 1996. A public official ceases to hold office upon his death and all his
rights, duties and obligations pertinent to the office are extinguished thereby. A decision becomes
binding only after it is validly promulgated. Consequently, if at the time of the promulgation of a
decision or resolution, a judge or a member of the collegiate court who had earlier signed or registered
his vote, has vacated his office, his vote is automatically withdrawn or cancelled.
The reason for the rule, which is logically applicable to decisions of constitutional commissions and
administrative bodies or agencies, is cogently expressed in the case of Consolidated Bank and Trust
Corporation v. Intermediate Appellate Court: [30]
xxx
A decision becomes binding only after it is validly promulgated and not before. As we said only
recently in In re Emiliano Jurado, a decision or resolution of the Court becomes such, for all legal
intents and purposes, only from the moment of its promulgation. According to Chief Justice Moran in
the landmark case of Araneta v. Dinglasan:
Accordingly, one who is no longer a member of this Court at the time a decision is signed and
promulgated, cannot validly take part in that decision. As above indicated, the true decision of the
Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed
and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the Court
after the deliberation is always understood to be subject to confirmation at the time he has to sign the
decision that is to be promulgated. That vote is of no value if it is not thus confirmed by the Justice
casting it. The purpose of this practice is apparent. Members of this Court, even after they have cast
their votes, wish to preserve their freedom of action till the last moment when they have to sign the
decision, so that they may take full advantage of what they may believe to be the best fruit of their most
mature reflection and deliberation. In consonance with this practice, before a decision is signed and
promulgated, all opinions and conclusions stated during and after the deliberation of the Court, remain

in the breasts of the Justices, binding upon no one, not even upon the Justice themselves. Of course,
they may serve for determining what the opinion of the majority provisionally is and for designating a
member to prepare the decision of the Court, but in no way is that decision binding unless and until
signed and promulgated.
We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if
any member of the court who may have already signed it so desires, he may still withdraw his
concurrence and register a qualification or dissent as long as the decision has not yet been promulgated.
A promulgation signifies that on the date it was made the judge or judges who signed the decision
continued to support it.
If at the time of the promulgation, a judge or a member of a collegiate court has already vacated his
office, his vote is automatically withdrawn. This was that happened in the Araneta case, where Justice
Gregorio Perfectos signature on the original decision was disregarded when he died before it could be
promulgated. The decision remained valid, however, because it was still supported by a majority of the
Supreme Court then, and, no less importantly, Justice Perfecto was not the ponente.
xxx. [31]
In fine, while it was correct for the COMELEC in its Order of August 24, 1995 (1) to annul the
proclamation of petitioner Jamil for being null and void [32] and (2) to order the constitution of a new
board of canvassers, it committed grave abuse of discretion in directing the proclamation of private
respondent Balindong for the reasons abovestated.
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1.)
Sustaining the Order of the COMELEC dated August 24, 1995 annulling the
proclamation of petitioner Abdullah A. Jamil as Mayor of Sultan Gumander, Lanao del Sur;
2.)
Declaring the proclamation of private respondent Alinader Balindong as Mayor of
Sultan Gumander, Lanao del Sur, null and void;
3.)
Ordering the COMELEC to resolve with dispatch the pending incidents in SPC No. 95271 and SPC No. 95-272, i.e., rule on the objection of inclusion and/or exclusion brought to it
on appeal and immediately thereafter, to create a Special Municipal Board of Canvassers to
proclaim, after proper canvass, the mayor-elect of Sultan Gumander, Lanao del Sur.
The temporary restraining order issued by this Court on February 20, 1996 is ordered LIFTED.
SO ORDERED.
EN BANC
G.R. No. 78957 June 28, 1988
MARIO D. ORTIZ, petitioner,
vs.

COMMISSION ON ELECTIONS and COMMISSION ON AUDIT, respondents.

FERNAN, J.:
In this petition for certiorari, petitioner presents before the Court the issue of whether or not a
constitutional official whose "courtesy resignation" was accepted by the President of the
Philippines during the effectivity of the Freedom Constitution may be entitled to retirement
benefits under Republic Act No. 1568, as amended.
Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then
President Ferdinand E. Marcos "for a term expiring May 17, 1992." 1 He took his oath of office
on July 30, 1985.
On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G.
Guro, petitioner sent President Corazon C. Aquino a letter which reads as follows:
The undersigned Commissioners were appointed to the Commission on Elections on July 30,
1985.
Following the example of Honorable Justices of the Supreme Court, on the premise that we
have now a revolutionary government, we hereby place our position at your disposal. 2

Thereafter, or on March 25,1986, the Freedom Constitution was promulgated through

Proclamation No. 3, Artide III thereof provides:
SECTION 1. In the reorganization of the government, priority shall be given to measures to
promote economy, efficiency, and the eradication of graft and corruption.
SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such is made within a period
of one year from February 25, 1986.
SEC. 3. Any public officer or employee separated from the service as a result of the
reorganization effected under this Proclamation shall, if entitled under the laws then in force,
receive the retirement and other benefits accruing thereunder.

On April 16,1986, the COMELEC, then composed of Chairman Ramon H. Felipe, Jr. and
Commissioners Froilan M. Bacungan, Quirino A. Marquinez, Mario D. Ortiz (petitioner herein),
Ruben E. Agpalo and Jaime J. Layosa, adopted Resolution No. 86-2364 approving the
application for retirement of Commissioners Victorino Savellano and Jaime Opinion. Seven
days later, the same body passed Resolution No. 862370 approving the application for
retirement of Commissioner Mangontawar B. Guro.
On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to
convey the information to Commissioners Marquinez, Ortiz, Agpalo and Layosa that the
President had "accepted, with regrets, their respective resignations, effective immediately." 3
After the presidential acceptance of said "resignations," the new COMELEC was composed of

Ramon H. Felipe, Jr. as Chairman and Commissioners Froilan M. Bacungan, Leopoldo L.

Africa, Haydee B. Yorac, Andres R. Flores, Dario C, Rama and Anacleto D. Badoy, Jr., as
members. It was to this body that Commissioners Agpalo, Ortiz and Marquinez submitted on
July 30, 1986 their respective applications for retirement. They were followed by
Commissioner Layosa on August 1, 1986.
To justify their petitions for retirement and their requests for payment of retirement benefits, all
seven former COMELEC Commissioners invoked Republic Act No. l568 as amended by
Republic Act No. 3595 and re-enacted by Republic Act No. 6118, specifically the following
provision:
SECTION 1. When the Auditor General or the Chairman or any Member of the Commission on
Elections retires from the service for having completed his term of office or by reason of his
incapacity to discharge the duties of his office, or dies while in the service, or resigns at any time
after reaching the age of sixty years but before the expiration of his term of office, he or his heirs
shall be paid in lump sum his salary for one year, not exceeding five years, for every year of
service based upon the last annual salary that he was receiving at the time of retirement
incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he
has rendered not less than twenty years of service in the government; And provided, further,
That he shall receive an annuity payable monthly during the residue of his natural life equivalent
to the amount of monthly salary he was receiving on the date of retirement, incapacity or
resignation.

In its en banc Resolution No. 86-2491 * of August 13, 1986 4 the COMELEC revoked
Resolutions Nos. 86-2364 dated April 16, 1986 and 86-2370 dated April 23, 1986, and denied
the applications for retirement of Commissioners Marquinez, Agpalo, Ortiz and Layosa on the
ground that they were "not entitled to retirement benefits under Republic Act No. 1568, as
amended" without specifying the reason therefor. 5
Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was
entitled to the benefits under Republic Act No. 1568, as amended. He averred therein that he
did not resign but simply placed his position at the disposal of the President; that he had in
fact completed his term as Commissioner by the "change in the term of [his] office and
eventual replacement," and that he was entitled to retirement benefits under the
aforementioned law because Article 1186 of the Civil Code which states that "the condition
[with regard to an obligation] shall be deemed fulfilled when the obligor voluntarily prevents its
fulfillment." He invoked the aforequoted provisions of Proclamation No. 3 and cited the cases
of former Chief Justice Ramon C. Aquino and Associate Justice Hermogenes Concepcion, Jr.
who were allowed to retire by this Court and receive retirement benefits. 6
Petitioner's letter/motion for reconsideration was denied by the COMELEC in its en banc
resolution of October 1, 1986.** On December 18, 1986, petitioner appealed the denial of his
claim to the Chairman of the Commission on Audit [COA]. In its memorandum dated January
15, 1987, the COA referred the matter to the COMELEC resident auditor for comment and
recommendation. Having failed to receive any communication from the COA for some six
months, on June 3, 1987, petitioner reiterated his appeal thereto. Again, the matter was
referred to the COMELEC resident auditor with a request for immediate action thereon.

A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that
the COMELEC's "arbitrary and unjust denial" of his claim for retirement benefits and of his
subsequent motion for reconsideration constitutes "grave and whimsical abuse of discretion
amounting to lack of jurisdiction" which can only be remedied through the instant petition in
the absence of an appeal or any plain, speedy and adequate remedy. 7 In his memorandum,
however, petitioner admits that, as correctly stated by the Solicitor General in respondents'
comment on the petition, this petition is basically one for a writ of mandamus aimed at
compelling both the COMELEC and the COA to approve his claim for retirement benefits. 8
We consider this case as a special civil action of both certiorari and mandamus and,
notwithstanding the Solicitor General's contention that action herein is premature as the COA
may yet render a decision favorable to the petitioner, We opt to decide this case to shed light
on the legal issue presented.
The respondents posit the view that petitioner's "voluntary resignation" prevented the
completion of his term of office, and, therefore, having rendered only sixteen years of service
to the government, he is not entitled to retirement benefits. 9
We disagree. Petitioner's separation from government service as a result of the
reorganization ordained by the then nascent Aquino government may not be considered a
resignation within the contemplation of the law. Resignation is defined as the act of giving up
or the act of an officer by which he declines his office and renounces the further right to use it.
10
To constitute a complete and operative act of resignation, the officer or employee must
show a clear intention to relinquish or surrender his position accompanied by the act of
relinquishment. 11 Resignation implies an expression of the incumbent in some form, express
or implied, of the intention to surrender, renounce and relinquish the office, and its
acceptance by competent and lawful authority. 12
From the foregoing it is evident that petitioner's "resignation" lacks the element of clear
intention to surrender his position. We cannot presume such intention from his statement in
his letter of March 5, 1986 that he was placing his position at the disposal of the President. He
did not categorically state therein that he was unconditionally giving up his position. It should
be remembered that said letter was actually a response to Proclamation No. 1 which
President Aquino issued on February 25,1986 when she called on all appointive public
officials to tender their "courtesy resignation" as a "first step to restore confidence in public
administration.
Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal
sense for it is not necessarily a reflection of a public official's intention to surrender his
position. Rather, it manifests his submission to the will of the political authority and the
appointing power.
A stringent interpretation of courtesy resignations must therefore be observed, particularly in
cases involving constitutional officials like the petitioner whose removal from office entails an
impeachment proceeding. 13 For even if working for the government is regarded as no more
than a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal
rights as those in reputation and eligibility for other employment. 14

The curtailment of his term not being attributable to any voluntary act on the part of the
petitioner, equity and justice demand that he should be deemed to have completed his term
albeit much ahead of the date stated in his appointment paper. Petitioner's case should be
placed in the same category as that of an official holding a primarily confidential position
whose tenure ends upon his superior's loss of confidence in him. His cessation from the
service entails no removal but an expiration of his term. 15
As he is deemed to have completed his term of office, petitioner should be considered retired
from the service. And, in the absence of proof that he has been found guilty of malfeasance or
misfeasance in office or that there is a pending administrative case against him, petitioner is
entitled to a life pension under Republic Act No. 1568 as amended and reenacted by Republic
Act No. 6118. He is, therefore, protected by the mantle of the Freedom Constitution
specifically Article III, Section 3 thereof which was in effect when he was replaced by the
appointment and qualification of a new Commissioner.
Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred
compensation for services performed and his right thereto commences to vest upon his entry
into the retirement system and becomes an enforceable obligation in court upon fulfillment of
all conditions under which it is to be paid. 16 Similarly, retirement benefits receivable by public
employees are valuable parts of the consideration for entrance into and continuation in public
employment. 17 They serve a public purpose and a primary objective in establishing them is to
induce able persons to enter and remain in public employment, and to render faithful and
efficient service while so employed. 18
Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less
than twenty years of service in the government at the time of the retirement, death or
resignation of the Auditor General or the Chairman and any Member of the COMELEC. The
same length of service was required after Republic Act No. 3473 amended the law. However,
Republic Act No. 3595 further amended Republic Act No. 1568 and the 20-year service
requirement was mandated only in case of resignation of the public official covered by the
law. Although Republic Act No. 1568, as amended, was inoperative and abolished in Section
9 of Republic Act No. 4968, it was re-enacted under Republic Act No. 6118.
On the respondents' assertion that the retirement law is clear and hence, there is no room for
its interpretation, We reiterate the basic principle that, being remedial in character, a statute
creating pensions should be liberally construed and administered in favor of the persons
intended to be benefited thereby. 19 This is as it should be because the liberal approach aims
to achieve the humanitarian purposes of the law in order that the efficiency, security, and wellbeing of government employees may be enhanced. 20
WHEREFORE, respondent Commission on Elections denial of petitioner's application for
retirement benefits is hereby reversed and set aside. The Commission on Audit and other
public offices concerned are directed to facilitate the processing and payment of petitioner's
retirement benefits.
SO ORDERED.
THIRD DIVISION

G.R. No. 117456. May 6, 2005

GAMBOA, RODRIGUEZ, RIVERA & CO., INC., CIFRA & COMPANY, INC., AND ARCA &
COMPANY, INC., Petitioners, vs. COURT OF APPEALS and PHILIPPINE NATIONAL
BANK, Respondents.
DECISION
CORONA, J.:
This petition for review on certiorari assails the decision[1] of the Court of Appeals dated September
29, 1993 and its resolution[2] denying petitioners' motion for reconsideration in CA-G.R. CV No.
28808.
The uncontroverted facts of the case follow.
During the 1971-1972 crop year, the Pampanga Sugar Mills (PASUMIL) issued negotiable sugar
quedans to several planters, who had their sugar milled, representing their share in the physical sugar.
The planters negotiated/sold their quedans to several traders, among which were plaintiffs-appellees
GARORICO, CIFRA and ARCA.
In 1972, plaintiffs-appellees, upon presentation of the quedans to PASUMIL, discovered that the
quedans were issued without any physical sugar to back them up.
To solve the problem and to preserve the sanctity of sugar quedans, the Sugar Quota Administration
conducted a conference with PASUMIL and sugar traders holding 1971-1972 outstanding quedans. It
was agreed that no quedans covering the mill's production share of the 1972-1973 crop will be issued,
and that the sugar shall be made available to service said outstanding quedans.
Out of the physical sugar set aside and earmarked to service the unserviced quedans, plaintiffsappellees were able to make partial withdrawals. During the crop year 1973-1974, physical sugar
representing PASUMIL's mill share for said crop year was again set aside and earmarked to service the
outstanding balance of the quedans.
Plaintiffs-appellees, however, were not able to withdraw their respective shares in the earmarked
physical sugar. On May 25, 1974, pursuant to Letter of Instructions No. 189-A and 311, PNB took over
the management, control, operation and assets of PASUMIL. Consequently, the physical sugar
earmarked from the mill share of PASUMIL for crop year 1973-1974 was not distributed to the
creditors of PASUMIL (including herein plaintiffs-appellees).[3]
On October 19, 1981, petitioners filed a complaint for recovery of proceeds of the sale before the
Regional Trial Court, Branch 30, Manila.
In the complaint, petitioners sought to recover the following amounts: GARORICO[4] P1,601,283.20
for 10,008.02 piculs class A (export) sugar; CIFRA[5]- P1,083,811.20 for 6,773.82 piculs class A
(export) sugar; and ARCA[6]- P1,577,265.60 for 9,857.91 piculs class B (domestic) sugar. The
amounts were computed based on the price of P160 per picul.

The petitioners also sought to recover from PNB P500,000 for actual damages incurred when they were
compelled to purchase sugar from other sources and moral damages also in the amount of P500,000.
The trial court rendered a decision on October 12, 1988:[7]
WHEREFORE, judgment is hereby rendered ordering the defendant Philippine National Bank to pay
the plaintiffs as follows:
1. To plaintiff GARORICO the sum of SIX HUNDRED SIXTY THOUSAND FIVE HUNDRED
TWENTY-NINE PESOS and THIRTY-TWO CENTAVOS (P660,529.32), with 14% interest thereon
per annum from October 19, 1981 (date of the filing of the complaint) until fully paid;
2. To pay plaintiff CIFRA the sum of FOUR HUNDRED FORTY-SEVEN THOUSAND SEVENTYTWO PESOS and TWELVE CENTAVOS (P447,072.12), with 14% interest thereon per annum from
October 19, 1981 until fully paid;
3. To pay plaintiff ARCA the sum of FIVE HUNDRED FIFTY-TWO THOUSAND FORTY-TWO
PESOS and NINETY SIX CENTAVOS (P552,042.96), with 14% interest thereon per annum from
October 19, 1981 until fully paid;
4. To pay all the plaintiffs the sum of equivalent to TEN PERCENT (10%) of the total amount due as
and for attorney's fees; and
5. The cost of suit.
In so ruling, the trial court stated:
The computation should be revised, considering that during the conference attended by PNB
representatives it was agreed that in the event PASUMIL opts for cash payment, the price per picul
shall be P56.00 for domestic sugar and P66.00 for export sugar, with interest at 14% per annum.[8]
On appeal by both parties, the Court of Appeals affirmed the trial court's decision in toto. Petitioners'
motion for reconsideration was likewise denied by the appellate court.
Hence, the instant petition.
The issues raised before us are:
1) whether or not petitioners were able to establish that the liability of PNB should be computed at
P160 per picul of sugar (instead of P56 and P66 per picul);
2) whether actual and moral damages were duly proved and
3) whether the trial court was correct in ruling that the interest due petitioners should commence
from the filing of the action in the trial court on October 19, 1981.
Should PNB's Liability Be Based on P160 or P56/P66 per Picul?

Petitioners presented Francisco Gamboa, President of Gamboa, Rodriguez, Rivera and Co., and Ernesto
Santos, Vice-President of Cifra and Co., Inc. as witnesses. Both stated that the sugar was sold for P160
per picul. But because no receipts or other transactional documents were presented to prove their claim
of P160 per picul, the trial court gave little credence to their testimonies.
We agree. Allegations in the complaint must be duly proven by competent evidence and the burden of
proof is on the party making the allegation.
Petitioners could have easily moved for the production or inspection of documents and papers
pertaining to the sale under Section 1, Rule 27 of the Revised Rules of Court.[9] They chose not to.
On the other hand, what carried more weight was the memorandum of then Sugar Quota Administrator
Jose Unson, which embodied the agreement between the parties pegging the sugar price at P56
(domestic) and P66 (export) per picul, plus interest of 14% per annum.
The agreement or contract between the parties is the formal expression of the parties' rights, duties and
obligations. It is the best evidence of the intention of the parties.[10] Thus, when the terms of an
agreement have been reduced to writing, it is considered as containing all the terms agreed upon and
there can be, between the parties and their successors in interest, no evidence of such terms other than
the contents of the written agreement.[11]
Their agreement therefore bound the parties and P56/P66 per picul should be the basis of PNB's
liability.
Were Actual and Moral Damages Proven?
We affirm the ruling of the trial court that there was no proof to support the award of actual and moral
damages. No evidence was presented as to how much petitioners lost.
Article 2199 of the Civil Code provides:
Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages.
The law does not require a definite degree of certainty when proving the amount of damages claimed. It
is necessary, however, to establish evidence to substantiate the claim. ' To justify an award for actual
damages, there must be competent proof of the actual amount of loss. Credence can be given only to
claims which are duly supported by receipts. [12]
The trial court was also correct in not granting moral damages to petitioners. In Philippine Telegraph
& Telephone Corp. v. Court of Appeals,[13] this Court held that, in the case of moral damages,
recovery is more an exception rather than the rule. Moral damages are not punitive in nature. They are
meant to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation and similar harm unjustly
caused to a person. In order that an award for moral damages can be justified, the claimant must be able
to satisfactorily prove that he underwent such suffering and that the injury causing it sprang from any
of the cases listed in Articles 2219[14] and 2220.[15]

Although petitioners alleged that they were prevented from honoring their contractual obligations, thus
impairing their good business reputation and good will, there was no evidence to support the same.
When Should the 14% p.a. Interest Commence to Run?
This Court holds that the stipulated 14% p.a. interest should start from the time the complaint was filed
on October 19, 1981 until finality of this decision.
In the case of Eastern Shipping Lines, Inc. v. Court of Appeals, [16] this Court, through the Honorable
Justice Jose C. Vitug, suggested the following rules of thumb:
I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasidelicts is breached, the contravenor can be held liable for damages. The provisions under Title XVIII
on 'Damages' of the Civil Code govern in determining the measure of recoverable damages.
II. With regard particularly to an award of interest in the concept of actual or compensatory damages,
the rate of interest, as well as the accrual thereof, is imposed, as follows:
1. When an obligation is breached, and it consists in the 'payment of a sum of money, i.e. a
loan or forbearance of money, the interest due should be that which may have been
stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the
time it is judicially demanded. In the absence of stipulation, the rate of interest shall be
12% per annum to be computed from default, i.e., from judicial or extrajudicial demand
under and subject to the provisions of Article 1169 of the Civil Code.
2. When an obligation, not constituting a loan or forbearance of money, is breached, an
interest on the amount of damages awarded may be imposed at the discretion of the court
at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated
claims or damages except when or until the demand can be established with reasonable
certainty. Accordingly, where the demand is established with reasonable certainty, the
interest shall begin to run from the time the claim is made judicially or extrajudicially
(Article 1169, Civil Code) but when such certainty cannot be so reasonably established at
the time the demand is made, the interest shall begin to run only from the date the
judgment of the court is made (at which time the quantification of damages may be
deemed to have been reasonably ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and executory,
the rate of legal interest, whether the case falls under paragraph 1 or 2 above, shall be 12%
per annum from such finality until its satisfaction, this interim period being deemed to be
by then an equivalent to a forbearance of credit.
PASUMIL reneged on its obligation when it failed to fully honor the quedans. However, the parties
gave PASUMIL an extension of the period within which to comply with its obligation. This was crop
year 1972-1973 (and the succeeding crop years) until the quedans were paid. In the interim, no interest
accrued.

But when PNB sold the sugar already earmarked for petitioners, there was a breach of the agreement,
thus entitling petitioners to payment of the stipulated interest of 14% per annum. From then on, demand
became necessary. The filing of the complaint, being a judicial demand, reckoned the start of the
accrual of interest, until finality of this decision.
Finally, as held in Eastern Shipping Lines, Inc., the legal interest of 12% per annum shall be imposed
from the time this judgment becomes final and executory, until full satisfaction.
WHEREFORE, this petition for review on certiorari is hereby DENIED. The CA decision appealed
from is hereby AFFIRMED, with the following modifications: (1) the stipulated interest of 14% per
annum shall be reckoned from October 19, 1981 until finality of this decision; and (2) PNB shall pay
legal interest of 12% per annum from the time this judgment becomes final and executory, until full
satisfaction.
Cost against petitioners.
SO ORDERED.

EN BANC
[G.R. Nos. 146710-15. April 3, 2001]
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman,
RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE
PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO
CAPULONG and ERNESTO B. FRANCISCO, JR., respondents.
[G.R. No. 146738. April 3, 2001]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.
RESOLUTION
PUNO, J.:
For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and Omnibus
Motion in G.R. No. 146738 of the Courts Decision of March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3 (7)
OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE THEREON.

II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING WOULD
VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION, CONSIDERING
THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE IMMUNITY
FROM SUIT.
IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT
BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO
ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT OMBUDSMAN,
PETITIONER HAVING FAILED TO PROVE THE IMPAIRED CAPACITY OF THE
OMBUDSMAN TO RENDER A BIASED FREE DECISION.
In G.R. No. 146738, petitioner raises and argues the following issues:
1.
WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS OF
JANUARY 20, 2001;
2.
WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE
FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE, AUTHENTICATION,
ADMISSIONS AND RES INTER ALIOS ACTA;
3.
WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE HEARSAY
RULE;
4.
WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO
GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and
5.
WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO
FAIR TRIAL.
We find the contentions of petitioner bereft of merit.
I
Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the Decision for
adverting to newspaper accounts of the events and occurrences to reach the conclusion that he has
resigned. In our Decision, we used the totality test to arrive at the conclusion that petitioner has
resigned. We referred to and analyzed events that were prior, contemporaneous and posterior to the
oath-taking of respondent Arroyo as president. All these events are facts which are well-established
and cannot be refuted. Thus, we adverted to prior events that built up the irresistible pressure for the
petitioner to resign. These are: (1) the expose of Governor Luis Chavit Singson on October 4, 2000;
(2) the I accuse speech of then Senator Teofisto Guingona in the Senate; (3) the joint investigation of

the speech of Senator Guingona by the Blue Ribbon Committee and the Committee on Justice; (4) the
investigation of the Singson expose by the House Committee on Public Order and Security; (5) the
move to impeach the petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop
Jaime Cardinal Sin demanding petitioners resignation; (7) a similar demand by the Catholic Bishops
conference; (8) the similar demands for petitioners resignation by former Presidents Corazon C.
Aquino and Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and
her call for petitioner to resign; (10) the resignation of the members of petitioners Council of Senior
Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and Industry; (11)
the defection of then Senate President Franklin Drilon and then Speaker of the House of
Representatives Manuel Villar and forty seven (47) representatives from petitioners Lapiang Masang
Pilipino; (12) the transmission of the Articles of Impeachment by Speaker Villar to the Senate; (13) the
unseating of Senator Drilon as Senate President and of Representative Villar as Speaker of the House;
(14) the impeachment trial of the petitioner; (15) the testimonies of Clarissa Ocampo and former
Finance Secretary Edgardo Espiritu in the impeachment trial; (16) the 11-10 vote of the senator-judges
denying the prosecutors motion to open the 2nd envelope which allegedly contained evidence showing
that petitioner held a P3.3 billion deposit in a secret bank account under the name of Jose Velarde;
(17) the prosecutors walkout and resignation; (18) the indefinite postponement of the impeachment
proceedings to give a chance to the House of Representatives to resolve the issue of resignation of their
prosecutors; (19) the rally in the EDSA Shrine and its intensification in various parts of the country;
(20) the withdrawal of support of then Secretary of National Defense Orlando Mercado and the then
Chief of Staff, General Angelo Reyes, together with the chiefs of all the armed services; (21) the same
withdrawal of support made by the then Director General of the PNP, General Panfilo Lacson, and the
major service commanders; (22) the stream of resignations by Cabinet secretaries, undersecretaries,
assistant secretaries and bureau chiefs; (23) petitioners agreement to hold a snap election and opening
of the controversial second envelope. All these prior events are facts which are within judicial
notice by this Court. There was no need to cite their news accounts. The reference by the Court
to certain newspapers reporting them as they happened does not make them inadmissible
evidence for being hearsay. The news account only buttressed these facts as facts. For all his
loud protestations, petitioner has not singled out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to the oath taking of respondent
Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the petitioner. Let it
be emphasized that it is not unusual for courts to distill a persons subjective intent from the evidence
before them. Everyday, courts ascertain intent in criminal cases, in civil law cases involving last wills
and testaments, in commercial cases involving contracts and in other similar cases. As will be
discussed below, the use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may
disagree with some of the inferences arrived at by the Court from the facts narrated in the Diary but
that does not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine some events posterior to
the oath-taking of respondent Arroyo. Specifically, we analyzed the all important press release of the
petitioner containing his final statement which was issued after the oath-taking of respondent Arroyo
as president. After analyzing its content, we ruled that petitioners issuance of the press release and his
abandonemnt of Malacaang Palace confirmed his resignation.[1] These are overt acts which leave no
doubt to the Court that the petitioner has resigned.
In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20, 2001,
the claim that the office of the President was not vacant when respondent Arroyo took her oath

of office at half past noon of the same day has no leg to stand on.
We also reject the contention that petitioners resignation was due to duress and an involuntary
resignation is no resignation at all.
x x x [I]t has been said that, in determining whether a given resignation is voluntarily tendered, the
element of voluntariness is vitiated only when the resignation is submitted under duress brought on by
government action. The three-part test for such duress has been stated as involving the following
elements: (1) whether one side involuntarily accepted the others terms; (2) whether circumstances
permitted no other alternative; and (3) whether such circumstances were the result of coercive acts of
the opposite side. The view has also been expressed that a resignation may be found involuntary if on
the totality of the circumstances it appears that the employers conduct in requesting resignation
effectively deprived the employer of free choice in the matter. Factors to be considered, under this
test, are: (1) whether the employee was given some alternative to resignation; (2) whether the employee
understood the nature of the choice he or she was given; (3) whether the employewe was given a
reasonable time in which to choose; and (4) whether he or she was permitted to select the effective date
of resignation. In applying this totality of the circumstances test, the assessment whether real
alternatives were offered must be gauged by an objective standard rather than by the employees purely
subjective evaluation; that the employee may perceive his or her only option to be resignation for
example, because of concerns about his or her reputation is irrelevant. Similarly, the mere fact
that the choice is between comparably unpleasant alternatives for example, resignation or
facing disciplinary charges does not of itself establish that a resignation was induced by duress
or coercion, and was therefore involuntary. This is so even where the only alternative to resignation
is facing possible termination for cause, unless the employer actually lacked good cause to believe that
grounds for termination existed. In this regard it has also been said that a resignation resulting from a
choice between resigning or facing proceedings for dismissal is not tantamount to discharge by
coercion without procedural view if the employee is given sufficient time and opportunity for
deliberation of the choice posed. Futhermore, a resignation by an officer charged with misconduct is
not given under duress, though the appropriate authority has already determined that the officers
alternative is termination, where such authority has the legal authority to terminate the officers
employment under the particular circumstances, since it is not duress to threaten to do what one has the
legal right to do, or to threaten to take any measure authorized by law and the circumstances of the
case.[2]
In the cases at bar, petitioner had several options available to him other than resignation. He
proposed to the holding of snap elections. He transmitted to the Congress a written declaration of
temporary inability. He could not claim he was forced to resign because immediately before he left
Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which implies that he still had a choice
of whether or not to leave.
To be sure, pressure was exerted for the petitioner to resign. But it is difficult to believe that the
pressure completely vitiated the voluntariness of the petitioners resignation. The Malacaang
ground was then fully protected by the Presidential Security Guard armed with tanks and high-powered
weapons. The then Chief of Staff, General Angelo Reyes, and other military officers were in
Malacaang to assure that no harm would befall the petitioner as he left the Palace. Indeed, no harm,
not even a scratch, was suffered by the petitioner, the members of his family and his Cabinet who stuck
it out with him in his last hours. Petitioners entourage was even able to detour safely to the Municipal
Hall of San Juan and bade goodbye to his followers before finally going to his residence in Polk Street,

Greenhills. The only incident before the petitioner left the Palace was the stone throwing between a
small group of pro and anti Erap rallyists which resulted in minor injuries to a few of them. Certainly,
there were no tanks that rumbled through the Palace, no attack planes that flew over the presidential
residence, no shooting, no large scale violence, except verbal violence, to justify the conclusion that
petitioner was coerced to resign.
II
Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of the
Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of the
petitioner on the issue of his resignation violates the rule against the admission of hearsay evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of court statement. The
Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot complain he was not
furnished a copy of the Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary
was frequently referred to by the parties in their pleadings.[3] The three parts of the Diary published in
the PDI from February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of
private respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third parts of
the Diary were earlier also attached as Annexes 12 and 13 of the Comment of private respondents
Capulong, et al., dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental
Reply Memorandum both the second part of the diary, published on February 5, 2001,[4] and the third
part, published on February 6, 2001.[5] It was also extensively used by Secretary of Justice Hernando
Perez in his oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not
covered bythe hearsay rule.[6] Evidence is called hearsay when its probative force depends, in whole or
in part, on the competency and credibility of some persons other than the witness by whom it is sought
to produce it.[7] There are three reasons for excluding hearsay evidence: (1) absence of cross
examination; (2) absence of demeanor evidence, and (3) absence of the oath.[8] Not at all hearsay
evidence, however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence has
been admitted by courts due to their relevance, trustworthiness and necessity.[9] The emergence of
these exceptions and their wide spread acceptance is well-explained by Weinstein, Mansfield, Abrams
and Berger as follows:
x x x
On the other hand, we all make decisions in our everyday lives on the basis of other persons accounts
of what happened, and verdicts are usually sustained and affirmed even if they are based on hearsay
erroneously admitted, or admitted because no objection was made. See Shepp v. Uehlinger, 775 F 2d
452, 454-455 (1st Cir. 1985) (hearsay evidence alone can support a verdict). Although volumes have
been written suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all
hearsay evidence. Indeed, the decided historical trend has been to exclude categories of highly
probative statements from the definition of hearsay (sections 2 and 3, infra), and to develop more
class exceptions to the hearsay rule (sections 4-11, infra). Furthermore, many states have added
to their rules the residual, or catch-all, exceptions first pioneered by the Federal Rules which

authorize the admission of hearsay that does not satisfy a class exception, provided it is
adequately trustworthy and probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule should be abolished altogether
instead of being loosened. See, e.g., Note, The Theoretical Foundation of the Hearsay Rules, 93
Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. Under this structure,
exclusion is justified by fears of how the jury will be influenced by the evidence. However, it is not
traditional to think of hearsay as merely a subdivision of this structure, and the Federal Rules do not
conceive of hearsay in that manner. Prejudice refers to the jurys use of evidence for inferences other
than those for which the evidence is legally relevant; by contrast, the rule against hearsay questions the
jurys ability to evaluate the strength of a legitimate inference to be drawn from the evidence. For
example, were a judge to exclude testimony because a witness was particularly smooth or convincing,
there would be no doubt as to the usurpation of the jurys function. Thus, unlike prejudices recognized
by the evidence rules, such as those stemming from racial or religious biases or from the introduction
of photographs of a victims final state, the exclusion of hearsay on the basis of misperception strikes at
the root of the jurys function by usurping its power to process quite ordinary evidence, the type of
information routinely encountered by jurors in their everyday lives.

Since virtually all criteria seeking to distinguish between good and bad hearsay are either incoherent,
inconsistent, or indeterminate, the only altenative to a general rule of admission would be an absolute
rule of exclusion, which is surely inferior. More important, the assumptions necessary to justify a rule
against hearsay seem insupportable and, in any event, are inconsistent with accepted notions of the
function of the jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research now available which is,
however, derived from simulations that suggests that admitting hearsay has little effect on trial
outcomes because jurors discount the value of hearsay evidence. See Rakos & Landsman,
Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions, 76
Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas, Jury Decision Making and the Evaluation of
Hearsay Evidence, 76 Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of
Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay:
A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay Evidence in American Courts,
15 Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have some utility, question whether the
benefits outweigh the cost:
The cost of maintaining the rule is not just a function of its contribution to justice. It also includes the
time spent on litigating the rule. And of course this is not just a cost voluntarily borne by the parties,
for in our system virtually all the cost of the court salaries, administrative costs, and capital costs
are borne by the public. As expensive as litigation is for the parties, it is supported by an enormous
public subsidy. Each time a hearsay question is litigated, the public pays. The rule imposes other
costs as well. Enormous time is spent teaching and writing about the hearsay rule, which are both

costly enterprises. In some law schools, students spend over half their time in evidence classes learning
the intricacies of the hearsay rule, and enormous academic resources are expended on the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay Rule to a Rule of
Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in civil cases). See also
Friedman, Toward a Partial Economic, Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723
(1992).[10]
A complete analysis of any hearsay problem requires that we further determine whether the hearsay
evidence is one exempted from the rules of exclusion. A more circumspect examination of our
rules of exclusion will show that they do not cover admissions of a party and the Angara Diary
belongs to this class. Section 26 of Rule 130 provides that the act, declaration or omission of a party
as to a relevant fact may be given in evidence against him.[11] It has long been settled that these admissions
are admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the
various authorities who explain why admissions are not covered by the hearsay rule:[12]
Wigmore, after pointing out that the partys declaration has generally the probative value of any
other persons asssertion, argued that it had a special value when offered against the party. In that
circumstance, the admission discredits the partys statement with the present claim asserted in
pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he
continued, admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial
assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the
opponents own declaration, and he does not need to cross examine himself. Wigmore then added
that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put
himself on the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn
Rev. 1972), cited in Sec. 154, McCormick)
According to Morgan: The admissibility of an admission made by the party himself rests not upon
any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly,
but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to
cross-examine himself or that he is unworthy of credence save when speaking under sanction of
an oath.
A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for
the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.
(U.S. vs. Ching Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be categorized as admissions of
a party: his proposal for a snap presidential election where he would not be a candidate; his statement
that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that
he would leave by Monday if the second envelope would be opened by Monday and Pagod na pagod
na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very
tired. I dont want any more of this its too painful. Im tired of the red tape, the bureaucracy, the
intrigue). I just want to clear my name, then I will go. We noted that days before, petitioner had
repeatedly declared that he would not resign despite the growing clamor for his resignation. The
reason for the meltdown is obvious - - - his will not to resign has wilted.

It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, non-binding
on him. The argument overlooks the doctrine of adoptive admission. An adoptive admission is a
partys reaction to a statement or action by another person when it is reasonable to treat the partys
reaction as an admission of something stated or implied by the other person.[13] Jones explains that
the basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by
the party of the statements which the other person had made.[14] To use the blunt language of Mueller
and Kirkpatrick, this process of attribution is not mumbo jumbo but common sense.[15] In the Angara Diary,
the options of the petitioner started to dwindle when the armed forces withdrew its support from him as
President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President
Pimentel to advise petitioner to consider the option of dignified exit or resignation. Petitioner did not
object to the suggested option but simply said he could never leave the country. Petitioners silence on
this and other related suggestions can be taken as an admission by him.[16]
Petitioner further contends that the use of the Angara diary against him violated the rule on res inter
alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court, viz: The rights of a
party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter
provided.
Again, petitioner errs in his contention. The res inter alios acta rule has several exceptions. One of
them is provided in section 29 of Rule 130 with respect to admissions by a co-partner or agent.
Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little President.
Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he
abandoned Malacaang Palace. Thus, according to the Angara Diary, the petitioner told Secretary
Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli,
ikaw pa rin. (Since the start of the campaign, Ed, you have been the only one Ive listened to. And
now at the end, you still are.)[17] This statement of full trust was made by the petitioner after Secretary Angara
briefed him about the progress of the first negotiation. True to this trust, the petitioner had to ask Secretary
Angara if he would already leave Malacaang after taking their final lunch on January 20, 2001 at
about 1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: ed, kailangan
ko na bang umalis? (Do I have to leave now?)[18] Secretary Angara told him to go and he did.
Petitioner cannot deny that Secretary Angara headed his team of negotiators that met with the team of
the respondent Arroyo to discuss the peaceful and orderly transfer of power after his relinquishment of
the powers of the presidency. The Diary shows that petitioner was always briefed by Secretary Angara
on the progress of their negotiations. Secretary Angara acted for and in behalf of the petitioner in
the crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is
bound by the acts and declarations of Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the
principal (petitioner).[19] Jones very well explains the reasons for the rule, viz: What is done, by
agent, is done by the principal through him, as through a mere instrument. So, whatever is said by an
agent, either in making a contract for his principal, or at the time and accompanying the performance of
any act within the scope of his authority, having relation to, and connected with, and in the course of
the particular contract or transaction in which he is then engaged, or in the language of the old writers,
dum fervet opus is, in legal effect, said by his principal and admissible in evidence against such
principal.[20]

Moreover, the ban on hearsay evidence does not cover independently relevant statements. These
are statements which are relevant independently of whether they are true or not. They belong to
two (2) classes: (1) those statements which are the very facts in issue, and (2) those statements which
are circumstantial evidence of the facts in issue. The second class includes the following:[21]
a.
Statement of a person showing his state of mind, that is, his mental condition, knowledge,
belief, intention, ill will and other emotions;
b.

Statements of a person which show his physical condition, as illness and the like;

c.
Statements of a person from which an inference may be made as to the state of mind of
another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter;
d.

Statements which may identify the date, place and person in question; and

e.

Statements showing the lack of credibility of a witness.

Again, Jones tells us why these independently relevant statements are not covered by the
prohibition against hearsay evidence:[22]
1088. Mental State or Condition Proof of Knowledge.- There are a number of comon issues,
forming a general class, in proof of which hearsay is so obviously necessary that it is not customary to
refer to its admissibility as by virtue of any exception to the general exclusionary rule. Admissibility,
in such cases, is as of course. For example, where any mental state or condition is in issue, such as
motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is
to be taken as conclusive of his state of mind, the only method of proof available is testimony of
others to the acts or statements of such person. Where his acts or statements are against his interest,
they are plainly admissible within the rules hereinabove announced as to admissions against interest.
And even where not against interest, if they are so closely connected with the event or transaction in
issue as to constitute one of the very facts in controversy, they become admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his state of
mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary
Angara from which we can reasonably deduce petitioners intent to resign. They are admissible and
they are not covered by the rule on hearsay. This has long been a quiet area of our law on evidence and
petitioners attempt to foment a belated tempest cannot receive our imprimatur.
Petitioner also contends that the rules on authentication of private writings and best evidence
were violated in our Decision, viz:
The use of the Angara diary palpably breached several hornbook rules of evidence, such as the rule on
authentication of private writings
xxx
A.

Rule on Proof of Private Writings Violated

The rule governing private documents as evidence was violated. The law provides that before any
private writing offered as authentic is received in evidence, its due execution and authenticity must be
proved either: a) by anyone who saw the document executed or written, or b) by evidence of the
genuineness of the signature or handwriting of the maker.
xxx
B.

Best Evidence Rule Infringed

Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is secondary
evidence, of dubious authenticity. It was however used by this Honorable Court without proof of the
unavailability of the original or duplicate original of the diary. The Best Evidence Rule should have
been applied since the contents of the diary are the subject of inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of Court
provides in sections 2 to 4 of Rule 130, as follows:
Sec. 2. Documentary evidence. Documents as evidence consist of writings or any material
containing letters, words, numbers, figures or other modes of written expressions offered as proof of
their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents
of a document, no evidence shall be admissible other than the original document itself, except in the
following cases:
(a)
When the original has been lost or destroyed, or cannot be produced in court, without bad faith
on the part of the offeror;
(b)
When the original is in the custody or under the control of the party against whom the evidence
is offered, and the latter fails to produce it after reasonable notice;
(c)
When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is only the
general result of the whole; and
(d)
When the original is a public record in the custody of a public officer or is recorded in a public
office.
Sec. 4. Original of document. (a) The original of a document is one the contents of which are the
subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from another at or
near the time of the transaction, all the entries are likewise equally regarded as originals.
It is true that the Court relied not upon the original but only copy of the Angara Diary as published in
the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did not, however,
violate the best evidence rule. Wigmore, in his book on evidence, states that:
Production of the original may be dispensed with, in the trial courts discretion, whenever in the case
in hand the opponent does not bona fide dispute the contents of the document and no other useful
purpose will be served by requiring production.[24]
x x x
In several Canadian provinces, the principle of unavailability has been abandoned, for certain
documents in which ordinarily no real dispute arised. This measure is a sensible and progressive one
and deserves universal adoption (post, sec. 1233). Its essential feature is that a copy may be used
unconditionally, if the opponent has been given an opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:
Generally speaking, an objection by the party against whom secondary evidence is sought to be
introduced is essential to bring the best evidence rule into application; and frequently, where secondary
evidence has been admitted, the rule of exclusion might have successfully been invoked if proper and
timely objection had been taken. No general rule as to the form or mode of objecting to the admission
of secondary evidence is set forth. Suffice it to say here that the objection should be made in proper
season that is, whenever it appears that there is better evidence than that which is offered and
before the secondary evidence has been admitted. The objection itself should be sufficiently
definite to present a tangible question for the courts consideration.[25]
He adds:
Secondary evidence of the content of the writing will be received in evidence if no objection is made
to its reception.[26]
In regard to the authentication of private writings, the Rules of Court provides in section 20 of Rule
132, viz:
Sec. 20. Proof of private document. Before any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either:
(a)

By anyone who saw the document executed or written; or

(b)

By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.
On the rule of authentication of private writings, Francisco states that:

A proper foundation must be laid for the admission of documentary evidence; that is, the identity and
authenticity of the document must be reasonably established as a pre-requisite to its admission. (Rouw
v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and others) However, a party who does not deny
the genuineness of a proffered instrument may not object that it was not properly identified
before it was admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R.
835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on reliance by courts on
newspaper accounts. In that case, Judge Muro was dismissed from the service for relying on a
newspaper account in dismissing eleven (11) cases against Mrs. Imelda Romualdez Marcos. There is a
significant difference, however, between the Muro case and the cases at bar. In the Muro case, Judge Muro
dismissed the cases against Mrs. Marcos on the basis of a newspaper account without affording the
prosecution the basic opportunity to be heard on the matter by way of a written comment or on oral
argument. . .(this is) not only a blatant denial of elementary due process to the Government but is
palpably indicative of bad faith and partiality. In the instant cases, however, the petitioner had an
opportunity to object to the admissibility of the Angara Diary when he filed his Memorandum dated
February 20, 2001, Reply Memorandum dated February 22, 2001, Supplemental Memorandum dated
February 23, 2001, and Second Supplemental memorandum dated February 24, 2001. He was
therefore not denied due process. In the words of Wigmore, supra, petitioner had been given an
opportunity to inspect the Angara Diary but did not object to its admissibility. It is already too late in
the day to raise his objections in an Omnibus Motion, after the Angara Diary has been used as evidence and a decision
rendered partly on the basis thereof.

III
Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the
Constitution in that congress can only decide the issue of inability when there is a variance of opinion
between a majority of the Cabinet and the President. The situation presents itself when majority of the
Cabinet determines that the President is unable to govern; later, the President informs Congress that his
inability has ceased but is contradicted by a majority of the members of the Cabinet. It is also urged
that the presidents judgment that he is unable to govern temporarily which is thereafter communicated
to the Speaker of the House and the President of the Senate is the political question which this Court
cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself made the submission in G.R.
No. 146738 that Congress has the ultimate authority under the Constitution to determine
whether the President is incapable of performing his functions in the manner provided for in
section 11 of Article VII.[29] We sustained this submission and held that by its many acts, Congress
has already determined and dismissed the claim of alleged temporary inability to govern proffered by
petitioner. If petitioner now feels aggrieved by the manner Congress exercised its power, it is
incumbent upon him to seek redress from Congress itself. The power is conceded by the petitioner
to be with Congress and its alleged erroneous exercise cannot be corrected by this Court. The
recognition of respondent Arroyo as our de jure president made by Congress is unquestionably a
political judgment. It is significant that House Resolution No. 176 cited as the bases of its judgment
such factors as the peoples loss of confidence on the ability of former President Joseph Ejercito
Estrada to effectively govern and the members of the international community had extended their

recognition of Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the

Philippines and it has a constitutional duty of fealty to the supreme will of the people x x x. This
political judgment may be right or wrong but Congress is answerable only to the people for its
judgment. Its wisdom is fit to be debated before the tribunal of the people and not before a court of
justice. Needles to state, the doctrine of separation of power constitutes an inseparable bar against
this courts interposition of its power of judicial review to review the judgment of Congress rejecting
petitioners claim that he is still the President, albeit on leave and that respondent Arroyo is merely an
acting President.
Petitioner attempts to extricate himself from his submission that Congress has the ultimate authority to
determine his inability to govern, and whose determination is a political question by now arguing that
whether one is a de jure or de facto President is a judicial question. Petitioners change of theory,
ill disguised as it is, does not at all impress. The cases at bar do not present the general issue of
whether the respondent Arroyo is the de jure or a de facto President. Specific issues were raised to the
Court for resolution and we ruled on an issue by issue basis. On the issue of resignation under
section 8, Article VII of the Constitution, we held that the issue is legal and ruled that petitioner has
resigned from office before respondent Arroyo took her oath as President. On the issue of inability to
govern under section 11, Article VII of the Constitution, we held that the Congress has the ultimate
authority to determine the question as opined by the petitioner himself and that the determination of
Congress is a political judgment which this Court cannot review. Petitioner cannot blur these
specific rulings by the generalization that whether one is a de jure or de facto President is a
judicial question.
Petitioner now appears to fault Congress for its various acts expressed thru resolutions which
brushed off his temporary inability to govern and President-on-leave argument. He asserts that
these acts of Congress should not be accorded any legal significance because: (1) they are post facto
and (2) a declaration of presidential incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the Constitution which states that the
declaration by Congress of the Presidents inability must always be a priori or before the VicePresident assumes the presidency. In the cases at bar, special consideration should be given to the fact
that the events which led to the resignation of the petitioner happened at express speed and culminated
on a Saturday. Congress was then not in session and had no reasonable opportunity to act a priori
on petitioners letter claiming inability to govern. To be sure, however, the petitioner cannot strictly
maintain that the President of the Senate, the Honorable Aquilino Pimentel, Jr. and the then Speaker of
the House of Representatives, the Honorable Arnulfo P. Fuentebella, recognized respondent Arroyo as
the constitutional successor to the presidency post facto. Petitioner himself states that his letter
alleging his inability to govern was received by the Office of the Speaker on January 20, 2001 at 8:30
A.M. and the Office of the Senate at 9 P.M. of the same day.[30] Respondent took her oath of office a
few minutes past 12 oclock in the afternoon of January 20. Before the oath-taking, Senate President
Pimentel, Jr. and Speaker Fuentebella had prepared a Joint Statement which states:[31]
Joint Statement of Support
and Recognition from the
Senate President and the Speaker
Of the House of Representatives

We, the elected leaders of the Senate and the House of Representatives, are called upon to address the
constitutional crisis affecting the authority of the President to effectively govern our distressed nation.
We understand that the Supreme Court at that time is issuing an en banc resolution recognizing this
political reality. While we may differ on the means to effect a change of leadership, we however,
cannot be indifferent and must act resolutely. Thus, in line with our sworn duty to represent our
people and in pursuit of our goals for peace and prosperity to all, we, the Senate President and
the Speaker of the House of Representatives, hereby declare our support and recognition to the
constitutional successor to the Presidency. We similarly call on all sectors to close ranks despite our
political differences. May God bless our nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the House of
Representatives of respondent Arroyo as the constitutional successor to the presidency was followed
post facto by various resolutions of the Senate and the House, in effect, confirming this recognition.
Thus, Resolution No. 176 expressed x x x the support of the House of Representatives to the
assumption into office by Vice-President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its support for her administration as a partner
in the attainment of the nations goal under the Constitution.[32] Resolution No. 82 of the Senate and
Resolution No. 178 of the House of Representatives both confirmed the nomination of then Senator
Teofisto Guingona, Jr., as Vice-President.[33] It also passed Resolution No. 83 declaring the
impeachment court functus officio.[34] Both Houses sent bills to respondent Arroyo to be signed by her
into law as President of the Philippines.[35] These acts of Congress, a priori and post facto, cannot
be dismissed as merely implied recognitions of respondent Arroyo, as the President of the
Republic. Petitioners insistence that respondent Arroyo is just a de facto President because said acts
of Congress x x x are mere circumstances of acquiescence calculated to induce people to submit to
respondents exercise of the powers of the presidency[36] is a guesswork far divorced from reality to
deserve further discussion.
Similarly way off the mark is petitioners point that while the Constitution has made Congress the
national board of canvassers for presidential and vice-presidential elections, this Honorable Court
nonetheless remains the sole judge in presidential and vice presidential contests.[37] He thus postulates
that such constitutional provision[38] is indicative of the desire of the sovereign people to keep out of
the hands of Congress questions as to the legality of a persons claim to the presidential office.[39]
Suffice to state that the inference is illogical. Indeed, there is no room to resort to inference. The
Constitution clearly sets out the structure on how vacancies and election contest in the office of the
President shall be decided. Thus, section 7 of Article VII covers the instance when (a) the Presidentelect fails to qualify, (b) if a President shall not have been chosen and (c) if at the beginning of the term
of the President, the President-elect shall have died or shall have become permanently disabled.
Section 8 of Article VII covers the situation of the death, permanent disability, removal from office or
resignation of the President. Section 11 of Article VII covers the case where the President transmits to
the President of the Senate and the Speaker of the House of Representatives his written declaration that

he is unable to discharge the powers and duties of his office. In each case, the Constitution specifies
the body that will resolve the issues that may arise from the contingency. In case of election
contest, section 4, Article VII provides that the contests shall be resolved by this Court sitting en banc.
In case of resignation of the President, it is not disputed that this Court has jurisdiction to decide the
issue. In case of inability to govern, section 11 of Article VII gives the Congress the power to adjudge
the issue and petitioner himself submitted this thesis which was shared by this Court. In light of these
clear provisions of the Constitution, it is inappropriate, to say the least, for petitioner to make
inferences that simply distort their meanings.
IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution which
provides:
(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted should
nevertheless be liable and subject to prosecution, trial and punishment according to law.
Petitioner reiterates the argument that he must be first convicted in the impeachment proceedings
before he could be criminally prosecuted. A plain reading of the provision will not yield this
conclusion. The provision conveys two uncomplicated ideas: first, it tells us that judgment in
impeachment cases has a limited reach. . .i.e., it cannot extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, and second, it tells us the
consequence of the limited reach of a judgment in impeachment proceedings considering its nature,
i.e., that the party convicted shall still be liable and subject to prosecution, trial and punishment
according to law. No amount of manipulation will justify petitioners non sequitur submission that the
provision requires that his conviction in the impeachment proceedings is a condition sine qua non to
his prosecution, trial and punishment for the offenses he is now facing before the respondent
Ombudsman.
Petitioner contends that the private and public prosecutors walk out from the impeachment
proceedings should be considered failure to prosecute on the part of the public and private
prosecutors, and the termination of the case by the Senate is equivalent to acquittal.[40] He explains
failure to prosecute as the failure of the prosecution to prove the case, hence dismissal on such
grounds is a dismissal on the merits.[41] He then concludes that dismissal of a case for failure to
prosecute amounts to an acquittal for purposes of applying the rule against double jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we reject petitioners submission.
The records will show that the prosecutors walked out in the January 16, 2001 hearing of the
impeachment cases when by a vote of 11-10, the Senator-judges refused to open the second envelope
allegedly containing the P3.3 billion deposit of the petitioner in a secret bank account under the name
Jose Velarde. The next day, January 17, the public prosecutors submitted a letter to the Speaker of
the House tendering their resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal. Senator Raul Roco immediately moved for the indefinite
suspension of the impeachment proceedings until the House of Representatives shall have resolved

the resignation of the public prosecutors. The Roco motion was then granted by Chief Justice
Davide, Jr. Before the House could resolve the issue of resignation of its prosecutors or on January
20, 2001, petitioner relinquished the presidency and respondent Arroyo took her oath as President of
the Republic. Thus, on February 7, 2001, the Senate passed Resolution No. 83 declaring that the
impeachment court is functus officio.
Prescinding from these facts, petitioner cannot invoke double jeopardy. Double jeopardy attaches
only: (1) upon a valid complaint; (2) before a competent court; (3) after arraignment; (4) when a valid
plea has been entered; and (5) when the defendant was acquitted or convicted or the case was dismissed
or otherwise terminated without the express consent of the accused.[43] Assuming arguendo that the
first four requisites of double jeopardy were complied with, petitioner failed to satisfy the fifth requisite
for he was not acquitted nor was the impeachment proceeding dismissed without his express
consent. Petitioners claim of double jeopardy cannot be predicated on prior conviction for he was not
convicted by the impeachment court. At best, his claim of previous acquittal may be scrutinized in
light of a violation of his right to speedy trial, which amounts to a failure to prosecute. As Bernas
points out, a failure to prosecute, which is what happens when the accused is not given a speedy trial,
means failure of the prosecution to prove the case. Hence, dismissal on such grounds is a dismissal on
the merits.[44]
This Court held in Esmea v. Pogoy[45], viz:
If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the
dismissal, but for the trial of the case. After the prosecutions motion for postponement of the trial is
denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently
fails to prove the defendants guilt, the court upon defendants motion shall dismiss the case, such
dismissall amounting to an acquittal of the defendant.
In a more recent case, this Court held:
It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of
failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for
the same offense. It must be stressed, however, that these dismissals were predicated on the clear right
of the accused to speedy trial. These cases are not applicable to the petition at bench considering that
the right of the private respondents to speedy trial has not been violated by the State. For this reason,
private respondents cannot invoke their right against double jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment case against him. Even assuming
arguendo that there was a move for its dismissal, not every invocation of an accuseds right to speedy
trial is meritorious. While the Court accords due importance to an accuseds right to a speedy trial and
adheres to a policy of speedy administration of justice, this right cannot be invoked loosely.
Unjustified postponements which prolong the trial for an unreasonable length of time are what offend
the right of the accused to speedy trial.[47] The following provisions of the Revised Rules of Criminal
Procedure are apropos:
Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall
be entitled to the following rights:
(h)

To have speedy, impartial and public trial.

Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall
continue from day to day as far as practicable until terminated. It may be postponed for a reasonable
length of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous
trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy
trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of
trial, except as otherwise authorized by the Supreme Court.
Petitioner therefore failed to show that the postponement of the impeachment proceedings was
unjustified, much less that it was for an unreasonable length of time. Recalling the facts, on
January 17, 2001, the impeachment proceeding was suspended until the House of Representatives shall
have resolved the issue on the resignation of the public prosecutors. This was justified and
understandable for an impeachment proceeding without a panel of prosecutors is a mockery of the
impeachment process. However, three (3) days from the suspension or January 20, 2001, petitioners
resignation supervened. With the sudden turn of events, the impeachment court became functus
officio and the proceedings were therefore terminated. By no stretch of the imagination can the fourday period from the time the impeachment proceeding was suspended to the day petitioner resigned,
constitute an unreasonable period of delay violative of the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the dismissal or termination of the case
without the express consent of the accused. We reiterate that the impeachment proceeding was
closed only after the petitioner had resigned from the presidency, thereby rendering the impeachment
court functus officio. By resigning from the presidency, petitioner more than consented to the
termination of the impeachmment case against him, for he brought about the termination of the
impeachment proceedings. We have consistently ruled that when the dismissal or termination of the
case is made at the instance of the accused, there is no double jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His
arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In
our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends
and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life
to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot
claim executive immunity for his alleged criminal acts committed while a sitting President.
Petitioners rehashed arguments including their thinly disguised new spins are based on the rejected
contention that he is still President, albeit, a President on leave. His stance that his immunity covers
his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the
presidency and there is now a new de jure President.
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit
during his term of office. He buttresses his position with the deliberations of the Constitutional
Commission, viz:
Mr. Suarez. Thank you.
The last question is with reference to the Committees omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out this second sentence, at the very least, of the original provision on immunity from suit

under the 1973 Constitution. But would the Committee members not agree to a restoration of at least
the first sentence that the President shall be immune from suit during his tenure, considering that if we
do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the
President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence
that during his tenure he is immune from suit.
Mr. Suarez: So there is no need to express it here.
Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.
Mr. Suarez; On the understanding, I will not press for any more query, madam President.
I thank the Commissioner for the clarification.[49]
Petitioner, however, fails to distinguish between term and tenure. The term means the time during
which the officer may claim to hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term during which the incumbent
actually holds office. The tenure may be shorter than the term for reasons within or beyond the power
of the incumbent.[50] From the deliberations, the intent of the framers is clear that the immunity
of the president from suit is concurrent only with his tenure and not his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were filed not
really for petitioner to reclaim the presidency but just to take advantage of the immunity attached to the
presidency and thus, derail the investigation of the criminal cases pending against him in the Office of
the Ombudsman.
V

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial have been prejudiced
by pre-trial publicity. In our Decision, we held that there is not enough evidence to sustain petitioners
claim of prejudicial publicity. Unconvinced, petitioner alleges that the vivid narration of events in our
Decision itself proves the pervasiveness of the prejudicial publicity. He then posits the thesis that
doubtless, the national fixation with the probable guilt of petitioner fueled by the hate campaign
launched by some high circulation newspaper and by the bully pulpit of priests and bishops left
indelible impression on all sectors of the citizenry and all regions, so harsh and so pervasive that the
prosecution and the judiciary can no longer assure petitioner a sporting chance.[51] To be sure,
petitioner engages in exageration when he alleges that all sectors of the citizenry and all regions have
been irrevocably influenced by this barrage of prejudicial publicity. This exaggeration collides with
petitioners claim that he still enjoys the support of the majority of our people, especially the
masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction speaks for
itself) to support his argument. Under the res ipsa loquitur rule in its broad sense, the fact of the

occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for
defendant to meet with an explanation.[52] It is not a rule of substantive law but more a procedural rule.
Its mere invocation does not exempt the plaintiff with the requirement of proof to prove negligence. It
merely allows the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence and to thereby
place on the defendant the burden of going forward with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied only in
tort cases, to the cases at bar. Indeed, there is no court in the whole world that has applied the res
ipsa loquitur rule to resolve the issue of prejudicial publicity. We again stress that the issue before
us is whether the alleged pervasive publicity of the cases against the petitioner has prejudiced the minds
of the members of the panel of investigators. We reiterate the test we laid down in People v.
Teehankee,[54] to resolve this issue, viz:
We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like
all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a
fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds
right to a fair trial for, as well pointed out , a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field x x x. The press does
not simply publish information about trials but guards against the miscarriage of justice by subjecting
the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that
the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is
impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication system brings news as hey
happen straight to our breakfast tables and right to our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not
that of a hermit who is out of touch with the world. We have not installed the jury system whose
members are overly protected from publicity lest they lost their impartiality. x x x x x x x x x. Our
judges are learned in the law and trained to disregard off-court evidence and on-camera performances
of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se
fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity which is incapable of change even by evidence presented during the trial.
Appellant has the burden to prove this actual bias and he has not discharged the burden.

Petitioner keeps on pounding on the adverse publicity against him but fails to prove how the
impartiality of the panel of investigators from the Office of the Ombudsman has been infected by
it. As we held before and we hold it again, petitioner has completely failed to adduce any proof of
actual prejudice developed by the members of the Panel of Investigators. This fact must be
established by clear and convincing evidence and cannot be left to loose surmises and conjectures. In
fact, petitioner did not even identify the members of the Panel of Investigators. We cannot replace this
test of actual prejudice with the rule of res ipsa loquitur as suggested by the petitioner. The latter rule
assumes that an injury (i.e., prejudicial publicity) has been suffered and then shifts the burden to the
panel of investigators to prove that the impartiality of its members has been affected by said publicity.
Such a rule will overturn our case law that pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. The cases are not wanting where an accused has been acquitted despite pervasive
publicity.[55] For this reason, we continue to hold that it is not enough for petitioner to conjure possibility
of prejudice but must prove actual prejudice on the part of his investigators for the Court to sustain his
plea. It is plain that petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooling off period to allow passions
to subside and hopefully the alleged prejudicial publicity against him would die down. We regret not
to acquiesce to the proposal. There is no assurance that the so called 2-month cooling off period will
achieve its purpose. The investigation of the petitioner is a natural media event. It is the first time in
our history that a President will be investigated by the Office of the Ombudsman for alleged
commission of heinous crimes while a sitting President. His investigation will even be monitored by
the foreign press all over the world in view of its legal and historic significance. In other words,
petitioner cannot avoid the kleiglight of publicity. But what is important for the petitioner is that
his constitutional rights are not violated in the process of investigation. For this reason, we have
warned the respondent Ombudsman in our Decision to conduct petitioners preliminary investigation in
a circus-free atmosphere. Petitioner is represented by brilliant legal minds who can protect his right as
an accused.
VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who went to EDSA put on record
who they were and consider recusing or inhibiting themselves, particularly those who had ex-parte
contacts with those exerting pressure on this Honorable Court, as mentioned in our Motion of March 9,
2001, given the need for the cold neutrality of impartial judges.[56]
We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12) members of the
Court who merely accepted the invitation of the respondent Arroyo to attend her oath taking. As mere
spectators of a historic event, said members of the Court did not prejudge the legal basis of the claim
of respondent Arroyo to the presidency at the time she took her oath. Indeed, the Court in its en banc
resolution on January 22, 2001, the first working day after respondent Arroyo took her oath as
President, held in Administrative Matter No. 01-1-05 SC, to wit:
A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to Take Her Oath
of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the
Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20,

2001, which request was treated as an administrative matter, the court Resolved unanimously to
confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice
on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as
President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party.
The above resolution was unanimously passed by the 15 members of the Court. It should be clear
from the resolution that the Court did not treat the letter of respondent Arroyo to be administered the
oath by Chief Justice Davide, Jr., as a case but as an administrative matter. If it were considered as a
case, then petitioner has reason to fear that the Court has predetermined the legitimacy of the
claim of respondent Arroyo to the presidency. To dispel the erroneous notion, the Court
precisely treated the letter as an administrative matter and emphasized that it was without
prejudice to the disposition of any justiciable case that may be filed by a proper party. In further
clarification, the Court on February 20, 2001 issued another resolution to inform the parties and the
public that it xxx did not issue a resolution on January 20, 2001 declaring the office of the President
vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution.
Thus, there is no reason for petitioner to request for the said twelve (12) justices to recuse
themselves. To be sure, a motion to inhibit filed by a party after losing his case is suspect and is
regarded with general disfavor.
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing
short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law.
Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of
this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial
power of the court itself. It affects the very heart of judicial independence.[57] The proposed mass
disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty
which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and his
Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit.
SO ORDERED.

EN BANC
G.R. No. 91548 July 13, 1990
TOMAS N. JOSON III, petitioner,
vs.
NARCISO S. NARIO, LUIS T. SANTOS, in his capacity as Secretary of Local
Governments, and SENDON O. DELIZO, in his capacity as Judge of the Regional Trial
Court, Branch 26, at Cabanatuan City, respondents.

Gonzales, Batiller, Bilog & Associates, Pedro J. Capalungan, Clemente D. Paredes, Pascual
L. Javier and Rolando Bala, for petitioner.
Abad & Associates for respondent Nario.

NARVASA, J.:
Whether or not the office of Vice-Governor of Nueva Ecija was rendered vacant by the
voluntary resignation of the person duly elected thereto during the 1988 local elections, is the
principal issue involved in this special civil action of certiorari. The position is now contested
by said Vice-Governor, Narciso Nario who withdrew his resignation a few days after
tendering it and the petitioner Tomas Joson III, the Sangguniang Panlalawigan member
who obtained the highest number of votes in the same local elections of 1988, and who, upon
Nario's resignation, assumed the position of Vice-Governor.
The controversy originated from the indefinite sick leave that the incumbent Governor of
Nueva Ecija, Eduardo L. Joson, had to take on December 7, 1989, thus creating a temporary
vacancy in his Office. As Vice Governor, Nario took over as Acting Governor pursuant to the
Local Government Code (B.P. Blg. 337). 1 But as fate would have it, Nario himself fell ill
shortly afterwards, and so executed a "waiver" of his "right" to the office of Governor reading
as follows: 2
D
e
c
e
m
b
e
r
1
8
,
1
9
8
9
Effective December 19,1989, I hereby expressly waive my right to assume the position of
Acting Governor of Nueva Ecija in favor of Senior Board Member Tomas N. Joson III.
s
/t
/
N
A
R
C
I
S

O
S
.
N
A
R
I
O
V
i
c
e
G
o
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e
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n
o
r
Joson forthwith took his oath as Acting Governor, on December 19, 1989.

Four (4) days later, apparently feeling that his illness had worsened, Nario sent a letter to the Secretary
of local Governments tendering his resignation as Vice- Governor of Nueva Ecija. 4 His letter reads as
follows:
December 22,
1989
Hon. Luis T. Santos
xxx xxx xxx
(Thru Hon. Tomas N. Joson III,
Acting Governor of Nueva Ecija
City of Cabanatuan)
Sir:
For reasons of poor health, I hereby respectfully tender my voluntary resignation as ViceGovernor of Nueva Ecija effective after the close of office hours today, December 22,
1989.
V
e
r
y
tr
u
l
y

y
o
u
r
s
,
s/t/ NARCISO
S. NARIO
ViceGovernor
The following day, Acting Governor Joson took his oath of office as Vice-Governor of Nueva Ecija. 5
Then on December 26, 1989, he sent an official communication (a 1st indorsement) to Secretary Santos:
(a) forwarding the resignation of Vice-Governor Nario, and (b) advising of his assumption of the office of
Vice-Governor "pursuant to the provisions of Section 49 (1) of Batas Pambansa Blg. 337." 6
Having in the meantime discovered, after undergoing further medical examination, that his illness was
not as serious as originally feared, and having thus been convinced of his physical fitness to resume
work, Nario wrote to Secretary Santos on January 2, 1990, withdrawing his "Letters of resignation as
Vice-Governor of Nueva Ecija and waiver as Acting Governor," and requesting that they be considered
"as without legal force and effect." 7 Secretary Santos acted promptly on Nario's letter. On January 3,
1990, he sent Nario two (2) communications. The first, 8 after noting the contents of Nario's letter of
January 2, 1990, advised him that
. . . for all legal intents and purposes, we consider you as the Vice Governor of the
Province of Nueva Ecija, and as such, you shall discharge the powers, duties and
functions appurtenant thereto and such other as may be prescribe by law.
The second contained the following designation and directive:

In view of the temporary incapacity of the Provincial Governor of Nueva Ecija, Hon.
Eduardo L. Joson, on account of physical cause, pursuant to the provisions of Section 52
of the Local Government Code I (BP Blg. 337), you, as vice governor, are hereby
designated as acting provincial governor of Nueva Ecija and, as such, shall exercise the
powers, duties and functions of the office during the period prescribed by law.
On the same day, January 3, 1990, Nario took his oath as Acting Provincial Governor before Secretary
Santos, after which the latter wrote a third letter, this time addressed to petitioner Joson as "First
Sangguniang Panlalawigan Member." 10 The letter reads as follows:
In view of the assumption of office of Provincial Governor of Nueva Ecija by ViceGovernor Narciso S. Nario, you are hereby directed to cease and desist from discharging
any and all powers, duties, and functions appertaining to the office of Provincial
Governor.
It further appears that on the same day, January 3, 1990, Secretary Santos also sent a telegram to the
Provincial Commander of Nueva Ecija of the following tenor: 11
I HAVE TODAY DESIGNATED VICE GOVERNOR NARCISO NARIO AS ACTING
GOVERNOR OF NUEVA ECIJA DUE TO TEMPORARY INCAPACITY OF GOVERNOR
EDUARDO JOSON AND I WOULD APPRECIATE YOUR ASSISTANCE IN EFFECTING HIS
ORDERLY AND PEACEFUL ASSUMPTION OF OFFICE.
THANK YOU.

Joson reacted by filing with the Regional Trial Court at Cabanatuan City, on January 4, 1990, a petition
for "prohibition and injunction, with prayer for restraining order docketed as Civil Case No. 746-AF. 12
He succeeded in obtaining on the same day a "status quo order" from the Executive Judge, Hon.
Sendon Delizo. 13 Hearing was set on January 12, 1990. Oppositions were presented in due course by the
Solicitor General, in representation of Secretary Luis T. Santos, 14 and by the lawyers of Acting Governor
Nario. 15 Thereafter, and after conducting a hearing on January 12, 1990 as scheduled' 16 Judge Delizo
rendered judgment on January 15, 1990, dismissing Joson's petition and lifting the temporary
restraining order issued earlier. 17
In his Decision, His Honor, citing Punsalan v. Mendoza, 140 SCRA 153, ruled that "(i)n our jurisdiction
acceptance is necessary for resignation of public office to be operative and effective, otherwise, the
officer is subject to penal provisions of Art. 238 of the Revised Penal Code;" and, invoking Rosales v.
Court of Appeals, 165 SCRA 344, further declared that "petitioner (Joson) in instituting the present
action had deviated (from) the doctrine of exhaustion of administrative remedies, thereby rendered
(rendering) this action pre-mature."
On January 17, 1990, Joson filed with this Court a petition for review on certiorari basically praying for
judgment
1) reversing the decision of respondent Judge dated January 15, 1990;
2) declaring illegal and without force and effect, Nario's withdrawal of his voluntary resignation and
sustaining Joson's assumption of the positions of Vice-Governor and Acting Governor of Nueva Ecija;
3) declaring null and void the designation of Nario as Acting Governor of Nueva Ecija made by Secretary
Santos on January 3, 1990.
The petitioner would have this Court adopt his theory that "since the Local Government Code does not
provide as to when the voluntary resignations of Vice-Governors shall become effective" unlike the
case of a sanggunian member whose resignation takes effect and operates as a vacation of his position
only upon acceptance of the resignation "by the sanggunian concerned"Nario's resignation "should
be construed to be effective on the date specified in the resignation, without need of acceptance." 18 He
adverts to the omission of the Rules and Regulations Implementing the Local Government Code to 44
provide the mechanism for the resignation of a Vice-Governor attributing this "to the fact that the Code
clearly provides for succession in case of resignation (of a vice-governor)," i.e., in who obtained "the
member of the Sangguniang Panlalawigan the largest number of votes in the last elections shall ipso
jure succeed to the office of the Vice-Governor," a clear indication, in his view, that acceptance of the
latter's resignation "is no longer necessary." Petitioner further claims that Nario's acts, coupled with his
awareness of the assumption by Joson of the office of Vice-Governor, clearly establish "his intention to
totally abandon said office," and constitute an "absolute relinquishment" thereof. 19
The petitioner also submits that his case falls within one of the exceptions to the rule on exhaustion of
administrative remedies, i.e., it involves "a purely legal question."
The decided weight of authority is that "apart from legal provision, . . . mere presentation of resignation
does not work a vacancy, and a resignation is not complete until accepted by proper authority;" 20 ". . .
and until acceptance by proper authority the tender or offer to resign is revocable," unless other-wise
provided by statute." 21 This is not to say that a public officer may not resign. Mechem says that he "'may
certainly resign, I but without acceptance his resignation is nothing, and he remains in office.' He is,
therefore, so far as the rights of third persons are concerned, not only still clothed with authority, but is
subject to the burdens of the office, and he may be compelled to perform the duties, and is liable for
their non-performance, as before." 22
The rule rests on "the obvious dictates of public policy," Mechem states, stressing that

23

. . . "As civil officers are appointed for the purpose of exercising the functions and
carrying on the operations of the government, and maintaining public order, a political
organization would seem to be imperfect which should allow the depositories of its
power to throw off their responsibilities at their own pleasure. This certainly was not the
doctrine of the common law. In England, a person elected to a municipal office was
obliged to accept it and perform its duties, and be subjected himself to a penalty by
refusal. An office was regarded as a burden which the appointee was bound, in the
interest of the community and of good government, to bear. And from this it followed of
course that, after an office was conferred and assumed, it could not be laid down without
the consent of the appointing power.
So it is said by Chief Justice Ruffin of North Carolina, "It is not true that an office is held
at will of either party. It is held at the will of both. . . . The public has a right to the services
of all citizens, and may demand them in all civil departments as well as in the military.
Hence, there are on our statute books several acts to compel men to service in offices.
Every man is obliged, upon a general principle, after entering his office, to discharge the
duties of it while he continues in office, and he can not lay it down until the public, or
those to whom authority is confided, are satisfied that the office is in a proper state to be
left, and the officer discharged.
"In our jurisprudence," this Court has held, "acceptance is necessary for resignation of a
public officer to be operative and effective, otherwise the officer is subject to the penal
provisions of Article 238 of the Revised Penal Code which states that:
ART. 238. Abandonment of office or position. Any public officer who, before the
acceptance of his resignation shall abandon his office to the detriment of the public
service shall suffer the penalty of arresto mayor.
If such office shall have been abandoned in order to evade the discharge of duties of
preventing, prosecuting, or punishing any of the crimes falling within Title One and
Chapter One of Title Three of Book Two of this code, the offender shall be punished by
prision correccional in its minimum or medium periods, and by arresto mayor if the
purpose of abandonment is to evade the duty of preventing, prosecuting or punishing
any other crime.
Clearly, a public officer cannot abandon his office or position before his resignation is accepted, but the
incumbent official would not be in a position to determine the acceptance of his resignation unless he
has been duly notified therefor. It must be noted that respondent Court of Appeals underscored the
undeniable fact that while the President's letter of acceptance was dated October 6, 1972, it was
completely processed only on October 20, 1972 and officially received by Judge Ruiz on October 21,
1972. Thus, respondent Court's holding that even if there were strict interpretation as to when Judge
Ruiz ceased to be a member of the Judiciary although petitioners maintain that the date of his cessation
from office is October 6, 1972, still, his acts before the official notification of acceptance of his
resignation are those of a de facto officer, and, therefore, valid, is correct." 24
In another case, this Court affirmed the same doctrine, commented on by Mechem and others, supra,
that "without acceptance . . . (an officer's) resignation is nothing, and he remains in office; . . . (and that)
"as far as the rights of third persons are concerned, not only (is he) still clothed with authority but (he) is
subject to the burdens of the office, . . . may be compelled to perform the duties, and is liable for their
non-performance . . ." In Punsalan v. Mendoza, supra, the Court held implicitly but no less clearly that
the effectivity of a public official's resignation depends not on such much on its terms, e.g., effective at
the pleasure of the President," or at a particular time or on the happening of a particular contingency,
but as a legal proposition, on acceptance thereof by the proper authority. For, quite obviously, such
appropriate authority can disregard the terms of the official's resignation, and as easily reject it as
accept it; and obviously, too, "(a)bandonment by the incumbent of his office before acceptance of his
resignation is punishable under the Revised Penal Code."

The respondent Judge was thus correct in refusing to issue the writ of prohibition sued for by petitioner
Joson. It was not within the power of respondent Nario to dictate the time of the effectiveness of his
resignation, or otherwise impose conditions thereon. That was the prerogative of the Secretary of Local
Governments, as the proper authority to act thereon. It was well within the Secretary's power and
discretion to accept or reject the resignation. Nario therefore continued as Vice-Governor despite his
tender of resignation and despite his absence from office for a few days on account of sickness. Never
having lost the office of Vice-Governor, it was also lawful and logical for him to assume the position of
Acting Governor, temporarily vacant due to the infirmity of the incumbent, as he eventually did on
instructions of the Secretary of Local Governments.
The conclusion thus reached makes unnecessary the Court's ruling on any other point.
WHEREFORE, the petition for review on certiorari is DENIED, and the judgment thereby challenged is
AFFIRMED, with costs against the petitioner.
IT IS SO ORDERED.

HIRD DIVISION
[G.R. No. 78623 : December 17, 1990.]
192 SCRA 326
DR. OFELIA P. TRISTE, Petitioner, vs. LEYTE STATE COLLEGE BOARD OF TRUSTEES,
namely: Hon. Lourdes R. Quisumbing, Secretary of the Department of Education, Culture
and Sports and Chairman of the Board and/or Dr. Minda C. Sutaria as the authorized
representative; Dr. Purificacion M. Flores, President of the Leyte State College and ViceChairman of the Board; Director Venancio Baclagon, National Economic and
Development Authority, Regional Office No. VIII and Member of the Board; HON.
SEDFREY A. ORDOEZ, Secretary of Justice and Chairman of the Review Committee
under Executive Order No. 17; and DR. CRES V. CHAN-GONZAGA, Respondents.
DECISION
FERNAN, J.:
The instant petition for Certiorari focuses on the vice-presidency of the Leyte State College in
Tacloban City. It seeks to annul and set aside the decision of the Board of Trustees of said College
ousting and replacing herein petitioner with private respondent as Vice-President thereof, as well
as the resolution of the Review Committee under Executive Order No. 17 dismissing petitioner's
appeal thereto.
The Leyte State College, formerly the Leyte Normal School, one of the eight normal schools
established in the Philippines as a teacher-training institution serving Eastern Visayas, Masbate
and Surigao, became a chartered state college by virtue of Presidential Decree No. 944 dated June
14, 1976 (72 O.G. 7207). Section 4 of the decree provides that "the governance and
administration of each College and the exercise of its corporate powers shall be vested exclusively
in the Board of Trustees and in the President of the College insofar as authorized by said Board".
In addition to its general powers of administration, Section 6 provides that the Board shall have

the power and duty:

"(c) To appoint, on recommendation of the President of each College, a Vice-President for
Academic Affairs and Development with a position next in rank to the President of the College who
shall assist in the administration and supervision of the College and who shall automatically
assume the presidency of the College in an acting capacity, with full powers and duties, in the
absence of the President or when the office of the president is vacant." (Italics supplied)
Under Section 9 of the same decree, the vice-president for academic affairs shall also be a
member of the College Council which is vested with the powers to prescribe the curricula and the
rules of discipline subject to the approval of the Board of Trustees; to fix the requirements for
admission to the college as well as for graduation and the receiving of a degree; to recommend
students or others to be the recipients of degrees or honors; and, through its president or
committee, to have disciplinary control over the students within the prescribed rules of discipline
approved by the Board of Trustees.
: nad

Two years later or on June 10, 1978, Presidential Decree No. 1437 (74 O.G. 5733-LLLLL Supp.)
was promulgated to define the composition and powers of the governing boards of chartered state
universities and colleges and the term of office of the presidents thereof. Said governing boards
shall be composed of the Secretary of Education and Culture as chairman, the president of the
university or college as vice-chairman, and a representative of the National Economic and
Development Authority (NEDA) and two (2) prominent citizens as members.
One of the governing board's specific powers as laid out in Section 3 of P.D. 1437 is the following:
"f. To confirm appointments of vice-presidents, deans, directors, registrars, heads of departments,
professors, and other officials and employees of the university or college made by the president,
to fix their compensation, hours of service, and such other duties and conditions as the governing
boards may promulgate, in accordance with the provisions of existing laws; to remove them for
cause after investigation and hearing." (Emphasis supplied)
Under the foregoing legal milieu, on February 3, 1984, the Leyte State College Board of Trustees
(hereinafter referred to as the Board) took up the matter of the designation of herein petitioner as
vice-president of the college with a basic salary of P39,288 plus representation and transportation
allowances. It passed Resolution No. 53 "confirming the designation of Professor Ofelia TRISTE as
vice-president of LSC to include allowances normally extended to the office of vice-president
subject to the usual auditing and accounting regulations." 1 Accordingly, the acting chairman of
the Board issued the following document:
"Republic of the Philippines
MINISTRY OF EDUCATION CULTURE AND SPORTS
Metro Manila
February 3, 1984
KNOW ALL MEN BY THESE PRESENTS:
Pursuant to Section 6, paragraph "C" of PD 944 known as the LSC Charter, DR. OFELIA P. TRISTE
is hereby designated/appointed Vice-President for Academic Affairs and Development of the Leyte
State College, Tacloban City, Philippines.
The Board of Trustees Leyte
State College
Tacloban City
By: (SGD.) VEDASTO G. SUAREZ
Acting Chairman" 2

As petitioner was then holding an appointment of Professor 6, the president of the college sought
clarification from the Minister of the Budget on the total compensation of the vice-president. The
then Minister of Budget, Manuel S. Alba, in a letter dated June 22, 1984, opined that "(p)ursuant
to Sections 4.1 and 4.4 of NCC No. 12-B, a Vice-President may be designated in lieu of a
permanent plantilla position, provided that the designee's basic salary plus honorarium shall not
exceed the salary prescribed for a permanently appointed Vice-President, as specified by NCC No.
12." Hence, the total compensation of petitioner should consist of the basic salary of P41,292 and
an honorarium of P4,548 or the total amount of P45,840. In addition to that amount, the vicepresident was authorized to receive commutable transportation and representation allowances of
P475 per month subject to conditions stated therein. 3
In October, 1984, the Office of Compensation and Position Classification furnished the then
President of the college, Magdalena S. Ramo, with an advance copy of the personnel services
itemization of the college which would be the basis for the preparation of its plantilla of personnel
for calendar year 1984. 4 The position of vice-president does not appear in said itemization. 5
However, per the college's plantilla of personnel for 1984, petitioner's position was designated and
classified as "Professor 6 (Vice-Pres.)" receiving an actual salary of P54,600 as of June 30, 1984
but which salary was adjusted to P55,644 effective July 1, 1984. 6
For more than two years, petitioner discharged her duties and functions as vice-president of the
college.
In February 1986, there was a total revamp in the composition of the Board of Trustees of the
Leyte State College. Among others, Dr. Purificacion M. Flores was designated officer-in-charge and
later appointed as the new College President vice Magdalena S. Remo who retired as president of
the college on May 1, 1986.
Anticipating moves to replace her as vice-president, on July 18, 1986, petitioner submitted to the
Board of Trustees a position paper ** asserting that the Board could not appoint a vice-president
because the position was not vacant, the vice-president's term was not co-terminous with that of
the recommending president who had retired, and the incumbent was not replaceable at the
pleasure of the Board. In fact, she stated therein that she is qualified for the college presidency.
7
Petitioner's apprehensions were proved right by later developments. She was not named to any of
the committees formed by Dr. Flores when the latter became the officer-in-charge of the office of
the president. 8 On August 21, 1986, petitioner received a letter from President Flores assigning
her the job of director of the college's research program. 9 A week later, petitioner received
another letter from President Flores. It states:
"August 29, 1986
Dr. Ofelia P. Triste
Leyte State College
Tacloban City
Dear Dr. TRISTE:
This is to inform you that Resolution No. 42, s. 1986 was approved by the Board of Trustees of
the College at its Board Meeting last August 19, 1986 at MECS, Manila and confirmed August 27,
1986, to wit:
RES. NO. 42, s. 1986
APPROVING THE DESIGNATION OF DR. CRES GONZAGA AS VICE-PRESIDENT OF THE LEYTE
STATE COLLEGE EFFECTIVE AUGUST 19, 1986.
APPROVED
This information is intended to clarify actions taken by this office on designations.

Very truly yours,

(SGD.)
PURIFICACION M. FLORES
President" 10
Alleging that the appointment of Dr. Crescencia (Cres) V. Chan-Gonzaga to the position of vicepresident in effect eased her out of said position, petitioner filed before the Board a petition for
reconsideration. She contended that her constitutional and legal rights to security of tenure had
been violated. 11 In response thereto, the Board Secretary informed petitioner's counsel through
a letter dated October 29, 1986 that her petition was "noted and discussed" by the Board but that
the members present at the meeting, namely, Dr. Minda Sutaria, Dr. Flores and Director Venancio
Baclagon, arrived at the consensus that the position of vice-president being "honorific," the
incumbent president of the college had the prerogative to recommend for the vice-presidency the
nominee of the executive council. The letter added that the position being "considered coterminous with that of the President of the college," pursuant to Executive Order No. 17,
petitioner's services as vice-president were in effect terminated with the Board's approval of the
appointment of Dr. Gonzaga to said position. 12
From November 26, 1986 to January 7, 1987, petitioner's counsel wrote three letters to the
secretary of the Board and a letter to President Flores herself, all requesting for official copies of
the board resolution terminating the services of petitioner as college vice-president, the board
resolution appointing Dr. Gonzaga as vice-president, and the board resolution or decision denying
petitioner's petition for reconsideration, for the purpose of filing an appeal to the Minister of
Justice. 13 Said letter-requests were unheeded.
:-cralaw

On January 12, 1987, petitioner interposed an appeal despite non-receipt of the requested
documents, to the Review Committee of the Ministry of Justice which was organized to implement
Executive Order No. 17 prescribing rules and regulations for the implementation of Section 2,
Article III of the Freedom Constitution. She alleged therein that since her ouster as vice-president,
she had been demoted to the position of Director of Research and that the 20% salary increase
granted to all academic personnel of government schools was not given to her because under the
plantilla approved by the Office of Budget and Management, her salary was reduced by one step
since she was no longer the college vice-president. She argued that she was terminated and
stripped of her rank and status without legal cause and due process; that the Board's claim that
the position of vice-president is "honorific" is not supported by law; that said position is not coterminous with the position of president not only because the charter is silent on the matter but
also because the charter provides that a vice-president automatically assumes the presidency
when it is vacant; and that the Board may not designate or appoint anyone to the position of vicepresident as the same was not vacant.
The therein respondent Board not having filed any responsive pleading to the brief filed by
petitioner before the Review Committee, she filed three successive motions for judgment on the
pleadings. It turned out, however, that on January 23, 1987, the Review Committee *** had
issued a resolution on petitioner's appeal but a copy of the same was furnished her through the
mail only on March 31, 1987. 14
In said resolution, the Review Committee dismissed petitioner's petition on the ground that it was
filed beyond the 10-day period provided for in Section 6 of Executive Order No. 17. 15
After her requests for certified copies of the designation of Dr. Gonzaga as vice-president and the
board resolution denying her petition for reconsideration remained unacted upon, Dr. Ofelia P.
TRISTE filed the instant petition for Certiorari.
A preliminary point to consider is the propriety of the instant petition. Private respondent Gonzaga
asserts that petitioner, not having appealed to the president, had not exhausted all administrative
remedies available to her before she filed the instant judicial remedy.

As we earlier held, exhaustion of administrative remedies is not an iron-clad rule. It is not

necessary when, from the facts of the case, petitioner has to look to the courts for speedy relief;
when the question presented is "purely a legal one," the controverted act is "patently illegal" and
"nothing of an administrative nature is to be or can be done;" and when petitioner was denied due
process. 16 Each of these exceptions may exempt the petitioner from the rule on exhaustion of
administrative remedies before filing a court action. Considering that all these exceptions are
present in this case, petitioner may avail herself of the instant remedy.
:-cralaw

Although the petition is captioned "petition for review on Certiorari" 17 thereby creating the
impression that the same was filed under Rule 45 of the Rules of Court, we shall consider it as one
for Certiorari under Rule 65 it having been alleged that the respondents have abused their
discretion in their questioned actions. 18
The resolution of the issue on whether petitioner was illegally ousted from her position as vicepresident of the Leyte State College hinges on the determination of her status as such official.
Private respondent Dr. Gonzaga and public respondent Dr. Flores **** contend that petitioner
was merely "designated" and not "appointed" to the college vice-presidency. They aver that
petitioner's "designation" to said position was "purely an internal arrangement which does not
require the approval or confirmation by the Civil Service Commission." 19 They maintain that
petitioner's term of office being co-terminous with that of the retired college president, petitioner
may not complain that she was illegally dismissed from the vice-presidency. On the other hand,
petitioner asserts that she was the duly appointed vice-president of the college and hence, her
right to security of tenure may not be unceremoniously abridged.
In Borromeo v. Mariano, 20 this Court, through Justice Malcolm, noted that "(a)ll authorities unite
in saying that the term 'appoint' is well-known and whether regarded in its legal or in its ordinary
acceptation, is applied to the nomination or designation of an individual." We defined
"appointment" in Aparri v. Court of Appeals 21 as the "act of designation by the executive officer,
board or body, to whom that power has been delegated, of the individual who is to exercise the
functions of a given office." On the other hand, there is jurisprudence to the effect that the word
"designate," when used by the appointing power in making an appointment to office, is equivalent
to the word "appoint." 22
Common usage, however, oftentimes puts a distinction between the terms "appointment" and
designation". Perhaps, the reason for this is that the word "appointment" connotes permanency
while "designation" implies temporariness. Thus, to "designate" a public officer to another position
may mean to vest him with additional duties while he performs the functions of his permanent
office. Or, in some cases, a public officer may be "designated" to a position in an acting capacity
as when an Undersecretary is designated to discharge the functions of a Secretary pending the
appointment of a permanent Secretary.
The provisions of Presidential Decrees Nos. 944 and 1437, specifically the aforequoted sections,
contemplate of a duly appointed vice-president by the Board of Trustees, who would be a working
vice-president with full powers and duties and whose compensation, hours of service and other
duties and conditions of employment should be set by said Board.
Thus, P.D. 1437 specifically provides among others, the following:
"Section 3 . . . the governing board shall have the following specific powers and duties:
x x x
f. to confirm the appointments of vice-presidents, . . . in accordance with the provisions of
existing laws; to remove them for cause after investigation and hearing."
It appears that these provisions of law notwithstanding, it was not until February 3, 1984 that a
Vice-President for Leyte State College was named with the designation of herein petitioner to said
position. The mode of authorization was by "designation" inasmuch as the position of VicePresident did not appear in the College's Personnel Services Itemization for the year 1984. 23 This
omission was, however, corrected in the Plantilla of Personnel and Salary Adjustment Form of the

Leyte State College for the same calendar year 1984, which listed as Item No. 2-1 the position of
"Professor 6 (Vice-President)." Herein petitioner was listed as the incumbent with an actual salary
as of June 30, 1984 of P45,600.00 per annum and an adjusted salary effective July 1, 1984 per
NCC #33 of P55,644.00 per annum. It is to be noted that the College Plantilla carried other
Professor 6 items, i.e. Items Nos. 2-2, 2-4 and 2-5, with an actual salary of P43,392.00 per
annum as of June 30, 1984 and an adjusted salary of P52,944.00 as of July 1, 1984. 24
Thereafter, on December 27, 1985, herein petitioner was extended an appointment as "Professor
6" . . . "with compensation at the rate of FIFTY FIVE THOUSAND SIX HUNDRED FORTY FOUR
(55,644) ONLY pesos per annum effective July 01, 1984." The position to be filled was listed as
"Old Item No. 2-1 Page 1 Approp. Act 230 Page CY 1983, New Item No. 2-1 Page 1 Approp. Act
(illegible) CY 1984," which is equivalent to the item designated as "Professor 6 (Vice-President)"
in the Plantilla of Personnel for 1984. Said appointment was issued "By authority of the Board of
Trustees" and approved by the Civil Service Commission as permanent. 25
From the foregoing, it becomes clear that while initially petitioner was discharging the powers and
functions of Vice-President upon a designation made on February 3, 1984, by July 1 of the same
year, she was doing so by virtue of an appointment. For while her appointment paper mentioned
only "Professor 6" as the position to which she was being appointed, the clear intent to appoint
her "Professor 6 (Vice-President)," as distinguished from the other Professor 6 items is manifest
from the rate of compensation and Item Number specifically given in the appointment paper.
Moreover, there appears no reason why she should be given another appointment to the position
of Professor 6 if the intention was for her to remain merely as Professor 6. The only plausible
explanation is that it was an appointment to a new item of Vice-President. And as adverted to
earlier, said appointment was approved by the Civil Service Commission as permanent.
- nad

Although under Section 8 of P.D. 1437, the term of a state college president is six (6) years, the
same law is silent as to that of the vice-president. Such silence, however, should not be
interpreted to mean that the law intends to give the vice-president the same term as that of a
president. On the contrary, there are indications in the decrees themselves that the vice-president
is a career official whose term of office may outlast that of the president. Thus, under Section 6(c)
of P.D. 944, the vice-president is next in ranks to the president. He or she shall assist the
president in the administration and supervision of the college. He or she shall "assume the
presidency of the College in an acting capacity, with full powers and duties in the absence or when
the office of the president is vacant." Whoever is holding the position of vice-president shall
remain as such until, under Section 3(f) of P.D. 1437 above-quoted, the Board finds a reason or
reasons to remove him "for cause after investigation and hearing."
The contention of respondents Gonzaga and Flores that petitioner was not a permanently
appointed vice-president since she was merely receiving an honorarium for the job, is likewise
without merit. Under the same Section 3(f) of P.D. 1437, the Board has the power to fix the
compensation of the vice-president. Accordingly, during its meeting on February 3, 1984, the
Board set petitioner's basic salary as vice-president at P39,288 plus representation and
transportation allowances. However, since petitioner was then holding an appointment as
Professor 6, the then college president sought the aforestated opinion of the Minister of Budget
granting petitioner an honorarium of P4,548. Such inquiry, it must be noted, was done in
connection with Resolution No. 5, s. 1984, or while petitioner was discharging the functions of
Vice-President upon a designation. In contrast, her compensation as Professor 6 (Vice-President)
was specifically stated in her appointment paper. The allegation of private respondents that
petitioner was receiving only an honorarium and not a regular salary as Vice-President is therefore
true only for the period February 3 to June 30, 1984. Thereafter, by virtue of her appointment,
petitioner began receiving a compensation of P55,644.00 per annum as Professor 6 (VicePresident).
Mechem states that "(l)ike the requirement of an oath, the fact of the payment of a salary and/or
fees may aid in determining the nature of a position, but it is not conclusive, for while a salary or
fees are usually annexed to the office, it is not necessarily so. As in the case of the oath, the

salary or fees are mere incidents and form no part of the office. Where a salary or fees are
annexed, the office is often said to be coupled with an interest; where neither is provided for it is
a naked or honorary office, and is supposed to be accepted merely for the public good." 26
In the case at bar, petitioner having been given the compensation attached to the Item Professor
6 (Vice-President) as distinguished from the other Professor 6 items which carried a lower salary,
we hold that her appointment dated December 27, 1985, but retroactive to July 1, 1984 was in
truth and in fact to the position of Vice-President, rather than to the position of Professor 6.
This case should be distinguished from Laxamana v. Borlaza 27 wherein we held that petitioner
was legally removed because she was merely designated as Director of Publications and not by
permanent appointment since there was no position in the college plantilla to which a permanent
appointment could be made. In said case, there was no statutory basis for the inclusion of the
position of Director of Publications in the plantilla of the college as it was merely created by the
Board. In the instant case, the position of vice-president is based on a presidential decree which
has the force and effect of law. But because said position was omitted in the personnel services
itemization, the college could do no more than classify petitioner's position as "Professor 6 (VicePres.)"
The nature of petitioner's appointment having been established, we now consider the legality of
her replacement as vice-president of the Leyte State College.
:-cralaw

Executive Order No. 17 was issued by the President on May 28, 1986 "to obviate unnecessary
anxiety and demoralization among the deserving officials and employees, particularly in the career
civil service" (82 O.G. 2423-2424). Section 1 thereof provides that separation or replacement of
officers and employees shall be made "only for justifiable reasons". For its purposes, a state
college is considered a ministry. Pertinent provisions of the Order state:
"Sec. 2. The Ministry Head concerned, on the basis of such review and assessment, shall
determine who shall be separated from the service. Thereafter, he shall issue to the official or
employee concerned a notice of separation which shall indicate therein the reason/s or ground/s
for such separation and the fact that the separated official or employee has the right to file a
petition for reconsideration pursuant to this Order. Separation from the service shall be effective
upon receipt of such notice, either personally by the official or employee concerned or on his
behalf by a person of sufficient discretion.
"SEC. 3. The following shall be the grounds for separation/replacement of personnel:
1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as
determined by the Ministry Head concerned;
3) Gross incompetence or inefficiency in the discharge of functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the service." (Emphasis supplied)
Petitioner learned of her removal as vice-president when it was already a fait accompli. Hence, all
she could do under the circumstances was to petition for the reconsideration of the Board
resolution designating respondent Gonzaga as her replacement and at the same time asserting
her constitutional right to security of tenure.
The Board's "noting" of her petition is not a valid exercise of its power. 28 Although the Board
Secretary's letter stating that the petition for reconsideration was noted and discussed by the
Board, the latter's reason for replacing petitioner, to wit, the position of vice-president is
"honorific" and co-terminous with that of the college president is not within the purview of Section
3 aforequoted.
- nad

Furthermore, respondent Flores and the Board had not complied with the procedure set forth in
Section 2 of Executive Order No. 17. They did not serve the notice of separation specified therein.
In fact, the cavalier manner by which petitioner was dislodged from the vice-presidency was
matched by the college officials' refusal to furnish petitioner with copies of the documents
pertinent to her appeal. Even if respondent Gonzaga's unsubstantial allegations on petitioner's
association with the Romualdezes of Leyte 29 were true, certainly, it is not within the spirit of
Executive Order No. 17 to brush aside its due process requirements just to implement its ultimate
purpose which is to rid the government of misfits.
On top of these, the review committee seems to have been too technical in treating petitioner's
appeal. Its denial of petitioner's plea for reconsideration on the ground that the 10-day period
specified in Section 6 of said order had lapsed is tantamount to abuse of discretion it appearing
that said period had not commenced to run. We agree with the Solicitor General that the letters
embodying the resolutions replacing petitioner as vice-president, do not, in legal contemplation,
constitute the notice of separation from which an appeal could be made. 30 The existence of said
resolutions should have been established by official or certified true copies but unfortunately,
respondent Flores herself and the Board secretary failed to heed petitioner's requests for them.
WHEREFORE, the petition for Certiorari is GRANTED and the IMMEDIATE REINSTATEMENT of
petitioner with backwages to the position of vice-president of the Leyte State College is hereby
ordered. No costs.
SO ORDERED.

THIRD DIVISION
G.R. No. 118883. January 16, 1998
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE
MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO, Petitioner, vs. COURT OF
APPEALS and AUGUSTO T. ANTONIO, Respondents.
DECISION
PANGANIBAN, J .:
Although a resignation is not complete without an acceptance thereof by the proper authority, an office
may still be deemed relinquished through voluntary abandonment which needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of the
Decision1 of the Court of Appeals2 promulgated on January 31, 1995 in CA-G.R. SP No. 34158, which
modified the Decision dated February 18, 1994 of the Regional Trial Court3 of Virac, Catanduanes,
Branch 42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:

WHEREFORE, the judgment appealed from is hereby MODIFIED such that paragraphs 1, 2 and 4
thereof are deleted. Paragraph 3 is AFFIRMED. No pronouncement as to costs.4
Antecedent Facts
Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay, San Andres,
Catanduanes in March 1989. He was later elected president of the Association of Barangay Councils
(ABC)5 for the Municipality of San Andres, Catanduanes. In that capacity and pursuant to the Local
Government Code of 1983, he was appointed by the President as member of the Sangguniang Bayan of
the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local Government (DILG)
declared the election for the president of the Federation of the Association of Barangay Councils
(FABC) of the same province, in which private respondent was a voting member, void for want of a
quorum. Hence, a reorganization of the provincial council became necessary. Conformably, the DILG
secretary designated private respondent as a temporary member of the Sangguniang Panlalawigan of
the Province of Catanduanes, effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the Sangguniang Bayan. He
tendered his resignation6 dated June 14, 1990 to Mayor Lydia T. Romano of San Andres, Catanduanes,
with copies furnished to the provincial governor, the DILG and the municipal treasurer. Pursuant to
Section 50 of the 1983 Local Government Code7 (B.P. Blg. 337), Nenito F. Aquino, then vice-president
of the ABC, was subsequently appointed by the provincial governor as member of the Sangguniang
Bayan8 in place of private respondent. Aquino assumed office on July 18, 1990 after taking his oath.9
Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC president was
reversed by the Supreme Court in Taule vs. Santos.10 In the same case, the appointment of Private
Respondent Antonio as sectoral representative to the Sangguniang Panlalawigan was declared void,
because he did not possess the basic qualification that he should be president of the federation of
barangay councils.11 This ruling of the Court became final and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of San Andres
advising them of his re-assumption of his original position, duties and responsibilities as sectoral
representative12 therein. In response thereto, the Sanggunian issued Resolution No. 6, Series of 1992,
declaring that Antonio had no legal basis to resume office as a member of the Sangguniang Bayan.13
On August 13, 1992, private respondent sought from the DILG a definite ruling relative to his right to
resume his office as member of the Sangguniang Bayan.14 Director Jacob F. Montesa, department legal
counsel of the DILG, clarified Antonios status in this wise:
Having been elected President of the ABC in accordance with the Departments Memorandum Circular
No. 89-09,15 you became an ex-officio member in the sanggunian. Such position has not been vacated
inasmuch as you did not resign nor abandon said office when you were designated as temporary
representative of the Federation to the Sangguniang Panlalawigan of Catanduanes on June 7, 1990.
The Supreme Court in Triste vs. Leyte State College Board of Trustees (192 SCRA 327), declared that:
designation implies temporariness. Thus, to designate a public officer to another position may mean to
vest him with additional duties while he performs the functions of his permanent office. In some cases,
a public officer may be designated to a position in an acting capacity as when an undersecretary is

designated to discharge the functions of the Secretary pending the appointment of a permanent
Secretary.
Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations Implementing the
1991 Local Government Code to continue to act as president of the association and to serve as exofficio members of the sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep. Act No. 7160,
provides that:
The incumbent presidents of the municipal, city and provincial chapters of the liga shall continue to
serve as ex-officio members of the sanggunian concerned until the expiration of their term of office,
unless sooner removed for cause.
(f) x x x Pending election of the presidents of the municipal, city, provincial and metropolitan chapters
of the liga, the incumbent presidents of the association of barangay councils in the municipality, city,
province and Metropolitan Manila, shall continue to act as president of the corresponding liga chapters
under this Rule.
In view of the foregoing, considering that the annuled designation is only an additional duty to your
primary function, which is the ABC President, we find no legal obstacle if you re-assume your
representation in the sanggunian bayan as ex-officio member.16
Despite this clarification, the local legislative body issued another resolution17 reiterating its previous
stand.
In response to private respondents request,18 Director Montesa opined that Antonio did not relinquish or
abandon his office; and that since he was the duly elected ABC president, he could re-assume his
position in the Sanggunian.19 A copy of said reply was sent to the members of the local legislative
body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to re-assume
office as sectoral representative.
On December 10, 1992, private respondent filed a petition for certiorari and mandamus with
preliminary mandatory injunction and/or restraining order before the RTC. On February 18, 1994, the
trial court rendered its decision holding that Augusto T. Antonios resignation from the Sangguniang
Bayan was ineffective and inoperative, since there was no acceptance thereof by the proper authorities.
The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the petitioner and
against the respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount of P10,000.00 as attorneys fees and
the cost of the suit;

(2) to allow petitioner to assume his position as sectoral representative of the Sangguniang
Bayan of San Andres, Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected salaries similar to those received
by the other members of the Sangguniang Bayan of San Andres, Catanduanes as
certified to by the Municipal Budget Officer and Municipal Treasurer of the same
municipality from April 8, 1992 up to the date of this judgment; and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no effect.20
Petitioners appealed this judgment to the Court of Appeals.
Appellate Courts Ruling
Respondent Court of Appeals affirmed the trial courts ruling but deleted the first, second and fourth
paragraphs of its dispositive portion. It held that private respondents resignation was not accepted by
the proper authority, who is the President of the Philippines. While the old Local Government Code is
silent as to who should accept and act on the resignation of any member of the Sanggunian, the law
vests in the President the power to appoint members of the local legislative unit. Thus, resignations
must be addressed to and accepted by him. It added that, though the secretary of the DILG is the alter
ego of the President and notice to him may be considered notice to the President, the records are bereft
of any evidence showing that the DILG secretary received and accepted the resignation letter of
Antonio.
Moreover, granting that there was complete and effective resignation, private respondent was still the
president of the ABC and, as such, he was qualified to sit in the Sangguniang Bayan in an ex officio
capacity by virtue of Section 49421 of R.A. 716022 and Memorandum Circular No. 92-38.23 In view,
however, of the May 1994 elections in which a new set of barangay officials was elected, Antonios
reassumption of office as barangay representative to the Sangguniang Bayan was no longer legally
feasible.
The appellate court added that private respondent could not be considered to have abandoned his office.
His designation as member of the Sangguniang Panlalawigan was merely temporary and not
incompatible with his position as president of the ABC of San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorneys fees for being without basis, and held that
Resolution Nos. 6 and 28 of the Sangguniang Bayan of San Andres involved a valid exercise of the
powers of said local body. It thus modified the trial courts judgment by affirming paragraph 3 and
deleting the other items. Unsatisfied, petitioners brought the present recourse.24
Issues
The petitioner, in its memorandum,25 submits before this Court the following issues:
I. Whether or not respondents resignation as ex-officio member of Petitioner Sangguniang Bayan ng
San Andres, Catanduanes is deemed complete so as to terminate his official relation thereto;

II. Whether or not respondent had totally abandoned his ex-officio membership in Petitioner
Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries similar to those received by other members
of Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this case by the
Regional Trial Court of Virac, Catanduanes.26
In sum, was there a complete and effective resignation? If not, was there an abandonment of office?
This Courts Ruling
The petition is meritorious. Although the terms of office of barangay captains, including private
respondent, elected in March 1989 have expired, the Court deemed it necessary to resolve this case, as
the Court of Appeals had ordered the payment of the uncollected salaries allegedly due prior to the
expiration of Respondent Antonios term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid and effective despite the
absence of an express acceptance by the President of the Philippines. The letter of resignation was
submitted to the secretary of the DILG, an alter ego of the President, the appointing authority. The
acceptance of respondents resignation may be inferred from the fact that the DILG secretary himself
appointed him a member of the Sangguniang Panlalawigan of Catanduanes.27
In Ortiz vs. COMELEC,28 we defined resignation as the act of giving up or the act of an officer by
which he declines his office and renounces the further right to use it. It is an expression of the
incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the
office and the acceptance by competent and lawful authority. To constitute a complete and operative
resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act
of relinquishment; and (c) an acceptance by the proper authority.29 The last one is required by reason of
Article 238 of the Revised Penal Code.30
The records are bereft of any evidence that private respondents resignation was accepted by the proper
authority. From the time that he was elected as punong barangay up to the time he resigned as a
member of Sangguniang Bayan, the governing law was B.P. 337 or the Local Government Code of
1983. While said law was silent as to who specifically should accept the resignation of an appointive
member of the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules states that the
[r]esignation of sanggunian members shall be acted upon by the sanggunian concerned, and a copy of
the action taken shall be furnished the official responsible for appointing a replacement and the
Ministry of Local Government. The position shall be deemed vacated only upon acceptance of the
resignation.
It is not disputed that private respondents resignation letter was addressed only to the municipal mayor
of San Andres, Catanduanes. It is indicated thereon that copies were furnished the provincial governor,
the municipal treasurer and the DILG. Neither the mayor nor the officers who had been furnished
copies of said letter expressly acted on it. On hindsight, and assuming arguendo that the aforecited Sec.
6 of Rule XIX is valid and applicable, the mayor should have referred or endorsed the latter to the
Sangguniang Bayan for proper action. In any event, there is no evidence that the resignation was

accepted by any government functionary or office.

Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative body of the municipality
and shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who
shall be the presiding officer pro tempore, eight members elected at large, and the members appointed
by the President consisting of the president of the katipunang bayan and the president of the kabataang
barangay municipal federation. x x x. (Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they
should be submitted, should be tendered to the appointing person or body.31 Private respondent,
therefore, should have submitted his letter of resignation to the President or to his alter ego, the DILG
secretary. Although he supposedly furnished the latter a copy of his letter, there is no showing that it
was duly received, much less, that it was acted upon. The third requisite being absent, there was
therefore no valid and complete resignation.
Second Issue: Abandonment of Office
While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof
by the proper authority, we nonetheless hold that Private Respondent Antonio has effectively
relinquished his membership in the Sangguniang Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder,
with the intention of terminating his possession and control thereof.32 Indeed, abandonment of office is
a species of resignation; while resignation in general is a formal relinquishment, abandonment is a
voluntary relinquishment through nonuser.33 Nonuser refers to a neglect to use a privilege or a right
(Cyclopedic Law Dictionary, 3rd ed.) or to exercise an easement or an office (Blacks Law Dictionary,
6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of choice.34 Its
concomitant effect is that the former holder of an office can no longer legally repossess it even by
forcible reoccupancy.35
Clear intention to abandon should be manifested by the officer concerned. Such intention may be
express or inferred from his own conduct.36 Thus, the failure to perform the duties pertaining to the
office must be with the officers actual or imputed intention to abandon and relinquish the office.37
Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment
of duties of such a continuance that the law will infer a relinquishment.38 Therefore, there are two
essential elements of abandonment: first, an intention to abandon and, second, an overt or external act
by which the intention is carried into effect. 39
Petitioner argues that the following clearly demonstrate private respondents abandonment of his post in
the Sangguniang Bayan:
Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of
Catanduanes was worded temporary, but his acts more than clearly established his intention to totally
abandon his office, indicating an absolute relinquishment thereof. It bears to emphasize that respondent

actually tendered his resignation and subsequently accepted an ex-officio membership in the
Sangguniang Panlalawigan of Catanduanes. He performed his duties and functions of said office for
almost two (2) years, and was completely aware of the appointment and assumption on July 18, 1990
of Nenito F. Aquino, who was then Vice-President of the Association of Barangay Councils (ABC) of
San Andres, Catanduanes, as ex-officio member of petitioner Sangguniang Bayan representing the
ABC.
xxx
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondents former
position for twenty (20) months, without him questioning the term of office of the former if indeed
respondents designation as ex-officio member of the Sangguniang Panlalawigan was only temporary.
Likewise, for almost eight (8) months after knowledge of the decision in Taule vs. Santos, et. al., Ibid.,
nullifying his designation as representative to the Sangguniang Panlalawigan, respondent opted to
remain silent, and in fact failed to seasonably act for the purpose of reassuming his former position.
Evidently, respondent had clearly abandoned his former position by voluntary relinquishment of his
office through non-user.40 [Underscoring supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention of private respondent to
abandon his position: (1) his failure to perform his function as member of the Sangguniang Bayan, (2)
his failure to collect the corresponding remuneration for the position, (3) his failure to object to the
appointment of Aquino as his replacement in the Sangguniang Bayan, (4) his prolonged failure to
initiate any act to reassume his post in the Sangguniang Bayan after the Supreme Court had nullified
his designation to the Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter
of resignation from the Sangguniang Bayan;41 (2) his assumption of office as member of the
Sangguniang Panlalawigan, (3) his faithful discharge of his duties and functions as member of said
Sanggunian, and (4) his receipt of the remuneration for such post.
It must be stressed that when an officer is designated to another post, he is usually called upon to
discharge duties in addition to his regular responsibilities. Indeed, his additional responsibilities are
prescribed by law to inhere, as it were, to his original position. A Supreme Court justice, for instance,
may be designated member of the House of Representatives Electoral Tribunal. In some cases, a public
officer may be designated to a position in an acting capacity, as when an undersecretary is tasked to
discharge the functions of a secretary for a temporary period.42 In all cases, however, the law does not
require the public servant to resign from his original post. Rather, the law allows him to concurrently
discharge the functions of both offices.
Private respondent, however, did not simultaneously discharge the duties and obligations of both
positions. Neither did he, at that time, express an intention to resume his office as member of the
Sangguniang Bayan. His overt acts, silence, inaction and acquiescence, when Aquino succeeded him to
his original position, show that Antonio had abandoned the contested office. His immediate and natural
reaction upon Aquinos appointment should have been to object or, failing to do that, to file appropriate
legal action or proceeding. But he did neither. It is significant that he expressed his intention to resume
office only on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992, and
months after this Court had nullified his designation on August 12, 1991. From his passivity, he is
deemed to have recognized the validity of Aquinos appointment and the latters discharge of his duties

as a member of the Sangguniang Bayan.

In all, private respondents failure to promptly assert his alleged right implies his loss of interest in the
position. His overt acts plainly show that he really meant his resignation and understood its effects. As
pointed out by the eminent American commentator, Mechem:43
Public offices are held upon the implied condition that the officer will diligently and faithfully execute
the duties belonging to them, and while a temporary or accidental failure to perform them in a single
instance or during a short period will not operate as an abandonment, yet if the officer refuses or
neglects to exercise the functions of the office for so long a period as to reasonably warrant the
presumption that he does not desire or intend to perform the duties of the office at all, he will be held to
have abandoned it, not only when his refusal to perform was wilful, but also where, while he intended
to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the
Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right thereto is not selfexecutory, for the law itself requires another positive act -- an appointment by the President or the
secretary of local government per E.O. 342.44 What private respondent could have done in order to be
able to reassume his post after Aquinos resignation was to seek a reappointment from the President or
the secretary of local government. By and large, private respondent cannot claim an absolute right to
the office which, by his own actuations, he is deemed to have relinquished.45
We reiterate our ruling in Aparri vs. Court of Appeals: 46
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 x x x. 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 x x x. 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 x x x.
Third Issue: Salary
Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang Bayan, he
cannot be entitled to any back salaries. Basic is the no work, no pay47 rule. A public officer is entitled to
receive compensation for services actually rendered for as long as he has the right to the office being
claimed.48 When the act or conduct of a public servant constitutes a relinquishment of his office, he has
no right to receive any salary incident to the office he had abandoned.49
WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and SET
ASIDE. No costs.
SO ORDERED.

Civil Liberties Union VS. Executive Secretary

FACTS:
Petitioners: Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners
in 83896 and Juan T. David for petitioners in 83815. Both petitions were consolidated and are being
resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued
by President Corazon C. Aquino on July 25, 1987.
Executive Order No. 284, according to the petitioners allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other than government offices or positions in addition
to their primary positions. The pertinent provisions of EO 284 is as follows:
Section 1: A cabinet member, undersecretary or assistant secretary or other appointive officials of the
Executive Department may in addition to his primary position, hold not more than two positions in the
government and government corporations and receive the corresponding compensation therefor.
Section 2: If they hold more positions more than what is required in section 1, they must relinquish the
excess position in favor of the subordinate official who is next in rank, but in no case shall any official
hold more than two positions other than his primary position.
Section 3: AT least 1/3 of the members of the boards of such corporation should either be a secretary,
or undersecretary, or assistant secretary.
The petitioners are challenging EO 284s constitutionality because it adds exceptions to Section 13 of
Article VII other than those provided in the constitution. According to the petitioners, the only
exceptions against holding any other office or employment in government are those provided in the
Constitution namely: 1. The Vice President may be appointed as a Member of the Cabinet under
Section 3 par.2 of Article VII. 2. The secretary of justice is an ex-officio member of the Judicial and
Bar Council by virtue of Sec. 8 of article VIII.

Issue:
Whether or not Executive Order No. 284 is constitutional.

Decision:
No. It is unconstitutional. Petition granted. Executive Order No. 284 was declared null and void.
Ratio:
In the light of the construction given to Section 13 of Article VII, Executive Order No. 284 is
unconstitutional. By restricting the number of positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition their primary position to not more that two positions in the
government and government corporations, EO 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate of Sec. 13 of Article VII of the 1987

Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The phrase unless otherwise provided in this constitution must be given a literal interpretation to
refer only to those particular instances cited in the constitution itself: Sec. 3 Art VII and Sec. 8 Art.
VIII.

EN BANC
[G.R. No. 133132. February 15, 2001]
ALEXIS C. CANONIZADO, EDGAR DULA TORRES and ROGELIO A. PUREZA, petitioners, vs.
HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN as
Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and
VIRGINIA U. CRISTOBAL, respondents.
RESOLUTION
GONZAGA-REYES, J.:

Respondents are seeking a reconsideration of the Courts 25 January 2000 decision, wherein we
declared section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners constitutionally
mandated right to security of tenure. As a consequence of our ruling, we held that petitioners removal
as Commissioners of the National Police Commission (NAPOLCOM) and the appointment of new
Commissioners in their stead were nullities and ordered the reinstatement of petitioners and the
payment of full backwages to be computed from the date they were removed from office.[1]
Some of the errors assigned by the Solicitor General, acting in behalf of respondents, in the motion for
reconsideration have been more than adequately discussed and disposed of by this Court and hence, do
not merit further attention.
Respondents insist that the Court should take judicial notice of then President Estradas appointment of
Alexis C. Canonizado to the position of Inspector General of the Internal Affairs Service (IAS) of the
Philippine National Police (PNP) on 30 June 1998, and of Canonizados acceptance and of his having
qualified for such position by taking his oath on 2 July 1998 before then Department of Interior and
Local Government Undersecretary Ronaldo Puno and again, on 7 July 1998, this time before the
President, since these partake of official acts of the Executive Department, which are matters of
mandatory judicial notice, pursuant to section 1 of Rule 129 of the Rules of Court.[2] By accepting such
position, respondents contend that Canonizado is deemed to have abandoned his claim for
reinstatement to the NAPOLCOM since the offices of NAPOLCOM Commissioner and Inspector
General of the IAS are incompatible.
Although petitioners do not deny the appointment of Canonizado as Inspector General, they maintain
that Canonizados initiation and tenacious pursuance of the present case would belie any intention to
abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful

employment during the pendency of this case. Furthermore, petitioners point out that from the time
Canonizado assumed office as Inspector General he never received the salary pertaining to such
position, annexing to their comment a certification issued by the Finance Service Office of the PNP
stating this fact.[3]
Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention
of terminating his possession and control thereof.[4] In order to constitute abandonment of office, it
must be total and under such circumstances as clearly to indicate an absolute relinquishment.[5] There
must be a complete abandonment of duties of such continuance that the law will infer a relinquishment.
[6] Abandonment of duties is a voluntary act;[7] it springs from and is accompanied by deliberation and
freedom of choice.[8] There are, therefore, two essential elements of abandonment: first, an intention to
abandon and second, an overt or external act by which the intention is carried into effect.[9]
Generally speaking, a person holding a public office may abandon such office by nonuser or
acquiescence.[10] Non-user refers to a neglect to use a right or privilege or to exercise an office.[11]
However, nonperformance of the duties of an office does not constitute abandonment where such
nonperformance results from temporary disability or from involuntary failure to perform.[12]
Abandonment may also result from an acquiescence by the officer in his wrongful removal or
discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally
removed in taking steps to vindicate his rights may constitute an abandonment of the office.[13] Where,
while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the
public officer vacates it in deference to the requirements of a statute which is afterwards declared
unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the
office.[14]
By accepting the position of Inspector General during the pendency of the present case - brought
precisely to assail the constitutionality of his removal from the NAPOLCOM - Canonizado cannot be
deemed to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did
not voluntarily leave his post as Commissioner, but was compelled to do so on the strength of section 8
of RA 8551, which provides
Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired
which shall constitute a bar to their reappointment or an extension of their terms in the Commission
except for current Commissioners who have served less than two (2) years of their terms of office who
may be appointed by the President for a maximum terms of two (2) years.
In our decision of 25 January 2000, we struck down the abovequoted provision for being violative of
petitioners constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no
willful desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners
Edgar Dula Torres and Rogelio A. Pureza, lost no time disputing what they perceived to be an illegal
removal; a few weeks after RA 8551 took effect on 6 March 1998, petitioners instituted the current
action on 15 April 1998, assailing the constitutionality of certain provisions of said law. The removal of
petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of
voluntary relinquishment.
The next issue is whether Canonizados appointment to and acceptance of the position of Inspector
General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It is a well
settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso

facto vacates the first office and his title is thereby terminated without any other act or proceeding.[15]
Public policy considerations dictate against allowing the same individual to perform inconsistent and
incompatible duties.[16] The incompatibility contemplated is not the mere physical impossibility of one
persons performing the duties of the two offices due to a lack of time or the inability to be in two
places at the same moment, but that which proceeds from the nature and relations of the two positions
to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and
impartially discharge the duties of one toward the incumbent of the other.[17]
There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the
IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel
of the IAS from sitting in a committee charged with the task of deliberating on the appointment,
promotion, or assignment of any PNP personnel,[18] whereas the NAPOLCOM has the power of
control and supervision over the PNP.[19] However, the rule on incompatibility of duties will not apply
to the case at bar because at no point did Canonizado discharge the functions of the two offices
simultaneously. Canonizado was forced out of his first office by the enactment of section 8 of RA
8551. Thus, when Canonizado was appointed as Inspector General on 30 June 1998, he had ceased to
discharge his official functions as NAPOLCOM Commissioner. As a matter of fact, it was on this same
date that Leo S. Magahum and Cleofe M. Factoran were appointed as NAPOLCOM Commissioners by
then President Estrada, to join Romeo L. Cairme and Jose Percival L. Adiong - who were earlier
appointed and given a term extension, respectively, by then President Ramos - thereby completing the
appointments of the four regular members of the NAPOLCOM, pursuant to section 4[20] of the
amendatory law. Thus, to reiterate, the incompatibility of duties rule never had a chance to come into
play for petitioner never occupied the two positions, of Commissioner and Inspector General, nor
discharged their respective functions, concurrently.
At this juncture, two cases should be mentioned for their factual circumstances almost nearly coincide
with that of petitioners. The first is Tan v. Gimenez[21] wherein petitioner Francisco Tan, a public
school teacher, was required to resign by the Commissioner of Civil Service for gross misconduct. Tan
appealed to the Civil Service Board of Appeals, which reversed the decision of the Commissioner and
acquitted him of the charge. During the pendency of Tans appeal, he worked as a clerk in the Office of
the Provincial Treasurer of Leyte. The Court held that accepting this second position did not constitute
abandonment of his former position because [h]e was ordered to resign from the service with prejudice to reinstatement pursuant to the decision of
the Commissioner of Civil Service and by virtue thereof was prevented from exercising the functions
of his position and receiving the corresponding compensation therefor. While thus deprived of his
office and emoluments thereunto appertaining the petitioner had to find means to support himself and
his family. The fact that during the time his appeal was pending and was thus deprived of his office and
salary, he sought and found employment in another branch of the government does not constitute
abandonment of his former position. To deny him the right to collect his back salaries during such
period would be tantamount to punishing him after his exoneration from the charge which caused his
dismissal from the service. x x x
Very similar to Tan is the case of Gonzales v. Hernandez.[22] In this 1961 case, petitioner Guillermo
Gonzales sought reinstatement to his former position as attorney-general of the Investigation and Secret
Service Division of the Department of Finance. As in Tan, Gonzales was compelled to resign from
office by the Commissioner of Civil Service, who found him guilty of disreputable conduct. During the
pendency of his appeal with the Civil Service Board of Appeals, petitioner applied for and accepted

employment as an emergency helper in the Government Service Insurance System. The Board of
Appeals eventually modified the Commissioners finding by lowering the penalty from removal from
office to suspension of two months without pay. In response to the question of whether Gonzales was
deemed to have abandoned his position by accepting another position in the GSIS, the Court held that
Plaintiffs position in the GSIS was temporary in nature, during the period of an emergency only. He
had the right to live during the pendency of his appeal and naturally the right to accept any form of
employment. In any case as the court below found, this temporary employment is not incompatible
with his old position; he could resign this temporary position any time as soon as his case has been
definitely decided in his favor. x x x
Although the Court found that the second position accepted by Gonzales was only temporary in nature,
the rule on incompatibility of duties makes no such distinction between a permanent or temporary
second office. Moreover, the Court still invoked the rationale previously cited in Tan - that petitioners
right to live justified his acceptance of other employment during the pendency of his appeal. The
Court held that Gonzaless second position was not incompatible with the first since he could resign
from the second position when the case is finally decided in his favor and before he re-assumes his
previous office.
As in the Tan and Gonzales cases, Canonizado was compelled to leave his position as Commissioner,
not by an erroneous decision, but by an unconstitutional provision of law. Canonizado, like the
petitioners in the above mentioned cases, held a second office during the period that his appeal was
pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this
subsequent position by a desire to continue serving the country, in whatever capacity.[23] Surely, this
selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of
providing for oneself and ones family, either of which are sufficient to justify Canonizados
acceptance of the position of Inspector General. A contrary ruling would deprive petitioner of his right
to live, which contemplates not only a right to earn a living, as held in previous cases, but also a right to
lead a useful and productive life. Furthermore, prohibiting Canonizado from accepting a second
position during the pendency of his petition would be to unjustly compel him to bear the consequences
of an unconstitutional act which under no circumstance can be attributed to him. However, before
Canonizado can re-assume his post as Commissioner, he should first resign as Inspector General of the
IAS-PNP.
Respondents also raise some questions regarding the execution of the Courts decision. They cite the
fact that because there are three petitioners who were ordered reinstated and four persons currently
acting as NAPOLCOM commissioners, namely Romeo L. Cairme, Jose Percival L. Adiong,[24] Leo S.
Magahum and Cleofe M. Factoran,[25] it is unclear who of the current commissioners will be replaced
by petitioners. Respondents point out that the execution of the decision becomes particularly
complicated when it comes to Adiong, who was a member of the NAPOLCOM under Republic Act
No. 6975 (RA 6975), but was removed therefrom and subsequently re-appointed for a two-year term,
pursuant to RA 8551. According to respondents, given Adiongs peculiar situation, it is unclear
whether the latter should also be entitled to reinstatement as a result of the assailed decision.[26]
Adiong, on his own behalf, filed a Motion for Clarification[27] with this Court contending that, if the
Court should uphold the declaration of nullity of section 8 of RA 8551, then he is also entitled to
reinstatement to the NAPOLCOM pursuant to his appointment under RA 6975.

An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no protection.
[28] Therefore, the unavoidable consequence of the Courts declaration that section 8 of RA 8551
violates the fundamental law is that all acts done pursuant to such provision shall be null and void,
including the removal of petitioners and Adiong from their positions in the NAPOLCOM and the
appointment of new commissioners in their stead. When a regular government employee is illegally
dismissed, his position does not become vacant and the new appointment made in order to replace him
is null and void ab initio.[29] Rudimentary is the precept that there can be no valid appointment to a
non-vacant position.[30] Accordingly, Adiongs appointment on 11 March 1998 for a term of two years,
pursuant to section 8 of RA 8551, is null and void. However, he should now be permitted to enjoy the
remainder of his term under RA 6975. Therefore, based on our foregoing disquisition, there should no
longer be any doubt as to the proper execution of our 25 January 2000 decision all the
Commissioners appointed under RA 8551 should be removed from office, in order to give way to the
reinstatement of petitioners and respondent Adiong.
Respondents insist that the present case is similar to a quo warranto proceeding since petitioners
prayed for the removal of the incumbent commissioners and for their reinstatement. Therefore, they
claim that Magahum and Factoran should have been impleaded as respondents and given the
opportunity to defend their positions.[31] We disagree. First and foremost, the petition filed before this
Court sought a ruling on the constitutionality of sections 4 and 8 of RA 8551. The inevitable
consequence of this Courts declaration that section 8 of said law is unconstitutional is the removal of
Adiong, Cairme, Magahum and Factoran from the NAPOLCOM and the reinstatement thereto of
petitioners, including Adiong, although under his original appointment under RA 6975. As discussed
earlier, an unconstitutional law is not a law at all; it is in legal contemplation, as inoperative as though
it had never been passed. There being no vacancy created in the first place in the office of the
NAPOLCOM, the appointments of Magahum, Factoran, Cairme and Adiong pursuant to RA 8551 are
legal nullities, which cannot be the source of any rights.[32] It is noted that Magahum and Factoran
were appointed after more than two months from the time the present petition was filed with the Court,
which explains why they were originally not impleaded. Had they been interested in defending the
validity of their appointments, Magahum and Factoran could have filed a motion to intervene with this
Court. It is highly improbable that they were not aware of the present petition since their colleagues,
Cairme and Adiong, were respondents therein. The fact that they did not intervene could only mean
that they were willing to be bound by the Courts decision in this case. In addition, it is noted that
respondents did not raise this issue when they filed their comment to the petition on 21 September
1998, even though at that time both Magahum and Factoran were already appointed, albeit invalidly, to
the NAPOLCOM. Only after the promulgation of our 25 January 2000 decision did respondents
belatedly insist that Magahum and Factoran should be made parties to this case. It is not for a party to
participate in the proceedings, submit his case for decision and accept the judgment if it is favorable to
him but attack it for any reason when it is adverse.[33]
In the event that the Court should affirm its decision, respondents pray that the Court apply the ruling
in Mayor v. Macaraig[34] which provided that
In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion, Daniel M.
Lucas, Jr., Ceferino E. Dulay, and Conrado Maglaya as Commissioners of the NLRC is ruled
unconstitutional and void; however, to avoid displacement of any of the incumbent Commissioners
now serving, it not appearing that any of them is unfit or has given cause for removal, and conformably
to the alternative prayer of the petitioners themselves, it is ORDERED that said petitioners be paid all
salaries, benefits and emoluments accruing to them for the unexpired portions of their six-year terms

and allowed to enjoy retirement benefits under applicable laws, pursuant to RA No. 910 and this
Courts Resolution in Ortiz v. Commission on Elections, G.R. No. 79857, 161 SCRA 812; x x x
We cannot grant respondents prayer for the application of the abovequoted dispositive portion of
Mayor in G.R. No. 91547 and G.R. No. 91730 to the case at bar based on one crucial point of
distinction unlike in Mayor, petitioners herein did not make any alternative prayer for the payment of
the salaries, benefits, and emoluments accruing to them for the unexpired portions of their terms in lieu
of reinstatement. Contrary to respondents contention, the general prayer of petitioners for such other
reliefs just and equitable cannot be deemed as an alternative to their specific prayer for reinstatement.
We agree with petitioners view that any remedy necessarily included in this general phrase should be
consistent with the specific prayers of petitioners.
Finally, respondents contend that the re-appointment of petitioners under RA 6975 violates section
16[35] of such law.[36] Once again, respondents did not raise this issue in their comment to the petition,
and are therefore estopped from doing so at this late stage. Moreover, the validity of the appointments
under RA 6975 was never the issue in this case and accordingly, the Court will not pass upon the same.
WHEREFORE, respondents motion for reconsideration is hereby DENIED. However, it is hereby
clarified that our 25 January 2000 decision mandates the reinstatement of Jose Percival L. Adiong to
the NAPOLCOM, together with petitioners herein, pursuant to his appointment under RA 6975.
SO ORDERED.

FIRST DIVISION

PETRA C. MARTINEZ, in her capacity as General Manager, Claveria Agri-Based Multi-Purpose

Cooperative, Inc.,
Petitioner,

- versus -

FILOMENA L. VILLANUEVA,
Respondent.

G.R. No. 169196x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

OFFICE OF THE OMBUDSMAN,

Petitioner,

- versus -

FILOMENA L. VILLANUEVA,
Respondent.
G.R. No. 169198

Present:

CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,

DEL CASTILLO, and

VILLARAMA, JR., JJ.

Promulgated:

July 6, 2011x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.:
The above-titled consolidated petitions[1] filed under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, assail the May 6, 2005 Decision [2] and August 8, 2005 Resolution[3] of the
Court of Appeals (CA) in CA-G.R. SP No. 86896. The CA had reversed the September 15, 2004
Order[4] of the Deputy Ombudsman for Luzon finding respondent Filomena L. Villanueva liable for
grave misconduct for violating Republic Act (R.A.) No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees.
The undisputed facts of the case are as follows:
Petitioner Petra C. Martinez (Martinez) is the General Manager of Claveria Agri-Based MultiPurpose Cooperative, Inc. (CABMPCI) while respondent is the Assistant Regional Director of the
Cooperative Development Authority (CDA), Regional Office No. 02, Tuguegarao City, Cagayan.
On May 19, 1998, respondent obtained a loan of P50,000 from CABMPCI as evidenced by a
loan note[5] and a cash disbursement voucher[6] both signed by respondent and approved by Martinez
in the latters capacity as General Manager.
On June 13, 1998, respondent again obtained a loan from CABMPCI, with the corresponding
loan note[7] and cash disbursement voucher[8] also signed by respondent and approved by Martinez.
The loan was for P1,000,000, but respondent returned P500,000 five days later.

On July 19, 1999, CABMPCI issued Official Receipt (O.R.) No. 141084 [9] to respondent
stating that it received from the latter the sum of P764,865.25 in payment of the following sums:
Loans

: 589730.15

Interest on Loans

: 87567.55

Fines

: 87567.55

On the same day, Martinez issued the following certification to respondent:

This is to certify that Mrs. Filomena Villanueva has fully paid her loan in the
amount of Five Hundred eighty nine thousand seven hundred thirty and fifteen centavos
(P589,730.15) at the Claveria Agri-based Mul[ti-] purpose Cooperative Incorporated.
This certification is issued upon the request of Mrs. Villanueva for general
purposes.
Issued this 19th day of July 1999.

(Sgd.)
MRS. PETRA C. MARTINEZ
General Manager[10]
Also on July 19, 1999, respondents husband, Armando Villanueva (Armando), obtained a loan
from CABMPCI in the amount of P780,000 as evidenced by a loan note[11] and cash disbursement
voucher[12] signed by Armando and approved by Martinez. The parties, however, have different versions
as to the circumstances surrounding the transactions that occurred on July 19, 1999.
Martinez claims that the Villanueva spouses came to her that day and requested her to transfer
respondents two loans (P15,134.75 and P764,865.25, inclusive of interests and charges) to Armandos
name so that respondents name will not be among the list of borrowers, she being an official of the
CDA.

Due to respondents moral ascendancy, Martinez claims that she acceded to the request.

Accordingly, Armando assumed the outstanding loan of his wife. As respondents loan had been
transferred to her husband, Martinez issued O.R. No. 141084 and a certification to the effect that
respondent has already paid her loan although no money was actually received. Respondent, on the other

hand, contends that her husband obtained the P780,000 loan in his personal capacity as member of
CABMPCI.
Subsequently, following Armandos failure to pay his loan, CABMPCI, represented by
Martinez, filed an action for collection of sum of money against Armando before the Regional Trial
Court (RTC) of Sanchez Mira, Cagayan. Martinez likewise filed with the CDA an administrative
complaint against respondent for Willful Failure to Pay Just Debt.
On October 16, 2001, the RTC declared Armando in default and rendered a decision [13]
ordering him to pay P1,107,210.90 plus the stipulated rate of 3% per month as combined fine and
interest, and to pay the costs of collection. A writ of execution[14] to this effect was issued.
Armando thereafter filed a petition for prohibition, [15] docketed as CA-G.R. SP No. 71002
before the CA, seeking the nullification of the October 16, 2001 decision and writ of execution issued
against him, claiming that said loan has already been paid as shown by O.R. No. 141084 issued by
CABMPCI to respondent. CABMPCI was required to file a comment, but it failed to comply. Thus,
the CA deemed such noncompliance as a waiver of its right to refute the allegations in Armandos
petition. On October 30, 2002, the CA rendered a decision[16] nullifying the RTC decision and writ of
execution on the ground that the obligation has already been settled.
On December 9, 2002, petitioner filed an affidavit/complaint [17] before the Office of the
Deputy Ombudsman for Luzon charging respondent with violation of Article 215[18] of the Revised
Penal Code and Section 7(d)[19] in relation to Section 11[20] of R.A. No. 6713.
On July 22, 2003, Graft Investigation Officer II Ismael B. Boco rendered a Decision on the
administrative aspect of petitioners complaint finding respondent liable for grave misconduct and
recommending the penalty of dismissal. Said decision was duly approved by Victor C. Fernandez,
Deputy Ombudsman for Luzon, on August 18, 2003.
Deputy Ombudsman Fernandez found that respondent abused her position when she solicited a
loan from CABMPCI despite the fact that she is disqualified by its by-laws and when she used her
influence to transfer her loan obligation to her husband with no money being actually paid. The Deputy

Ombudsman for Luzon noted that while an individual may incur an indebtedness unrestricted by the
fact that she is a public officer or employee, caution should be taken to prevent the development of
suspicious circumstances that might inevitably impair the image of the public office.
On September 9, 2003, respondent sought reconsideration of the decision.

The Deputy

Ombudsman for Luzon, in an Order [21] dated September 15, 2004, denied the motion for
reconsideration but reduced the penalty from dismissal to six months suspension without pay.
Respondents suspension from office was thereafter implemented effective at the close of office hours
of October 8, 2004.
Aggrieved, respondent filed a petition for review before the CA assailing the September 15,
2004 Order of the Office of the Deputy Ombudsman for Luzon.
Respondent argued that the Office of the Deputy Ombudsman for Luzon erred in treating the
loan she obtained from CABMPCI as a prohibited loan under Section 7(d) of R.A. No. 6713 because
she was an official of the CDA. Respondent argued that although Section 7(d) of R.A. No. 6713
prohibits all public officials and employees from soliciting or accepting loans in connection with any
operation being regulated by her office, the subsequent enactment of R.A. No. 6938 or the Cooperative
Code of the Philippines[22] allows qualified officials and employees to become members of
cooperatives and naturally, to avail of the attendant privileges and benefits of membership. She
contended that it would be absurd if CDA officials and employees who are eligible to apply for
membership in a cooperative would be prohibited from availing loans. She respectfully submitted that
the only limitation applicable to any CDA officer or employee is Article 28 [23] of R.A. No. 6938
which disqualifies them from being elected or appointed to any position in a cooperative.
She likewise argued that the Office of the Deputy Ombudsman for Luzon has no jurisdiction to
suspend her, much less decree immediate implementation of the suspension order, as the authority to
impose sanctions properly belongs to the CDA.[24]
In the assailed decision, the CA granted respondents petition for review and set aside the
September 15, 2004 Order of the Deputy Ombudsman for Luzon.

The CA held that the only limitation for CDA officers or employees in R.A. No. 6938 is Article
28 which disqualifies them from being elected or appointed to any position in a cooperative. The CA
further pointed out that under Article 29[25] of said law, an applicant for membership shall be deemed
a member after approval of her membership by the board of directors and shall exercise the rights of a
member after having made such payments to the cooperative in respect to membership or after
acquiring interest in the cooperative as may be prescribed by the by-laws. The CA found questionable
Martinezs claim that respondent is disqualified from being a member considering that Martinez
approved respondents loan. The CA added that it also would be unjust and inequitable for respondent
to receive an official receipt signed by the general manager, indicating full payment of the loan if such
receipt could not be taken as reliable evidence of actual payment. It held that where the debtor
introduces some evidence of payment, the burden shifts to the creditor to show nonpayment. The CA
likewise ruled that Martinez failed to prove that respondent had used undue influence in soliciting the
loan and held that the Ombudsman erred in applying R.A. No. 6713 without recognizing the fact of
membership and its privileges.
Hence the instant petitions.
The Office of the Ombudsman proffers the following arguments for this Courts consideration:

I.
THE HONORABLE COURT OF APPEALS ERRED IN THE APPLICATION OF RA
6938, BY ONLY APPLYING AND LIMITING ITSELF TO ARTICLES 28 AND 29
THEREOF AND DISREGARDING ARTICLE 26[26] OF THE SAME [LAW].
ARTICLE 26 CLEARLY DISQUALIFIES PRIVATE RESPONDENT FROM
BECOMING A MEMBER OF A COOPERATIVE ON WHICH SHE EXERCISED
REGULATORY AUTHORITY AS THE ASSISTANT DIRECTOR OF THE
COOPERATIVE DEVELOPMENT AUTHORITY (CDA).

II.
THERE IS MORE THAN ENOUGH SUBSTANTIAL EVIDENCE TO PROVE THE
ADMINISTRATIVE GUILT OF RESPONDENT FOR MISCONDUCT WHEN SHE,
AS A RANKING OFFICIAL OF THE CDA AND TASKED TO APPLY AND
IMPLEMENT THE COOPERATIVE CODE OF THE PHILIPPINES AND ITS
RULES, REGULATIONS AND ISSUANCES RELATIVE THERETO AND
REGULATE THE AFFAIRS OF COOPERATIVES, SOLICITED AND OBTAINED A
ONE (1) MILLION LOAN FROM CAGAYAN AGRI-BASED MULTI-PURPOSE

COOPERATIVE, INCORPORATED (CABMPCI), NOTWITHSTANDING HER

DISQUALIFICATION AS MEMBER OF SAID COOPERATIVE[.][27]
The Office of the Ombudsman argues that it is not enough that the membership of the
respondent be approved by the board of directors as required by Article 29 of R.A. No. 6938, or that
she was not elected to any position in a cooperative as provided in Article 28. Article 26 of said law,
which requires that a member of the cooperative resides or farms in the area of operation, should
have been applied as well, according to the Ombudsman. And since respondent conceded that she is
not a resident of Claveria, nor did she operate any farm in said place, respondent was disqualified from
membership in CABMPCI.
The Ombudsman adds that it is incumbent upon respondent, as CDA Assistant Director, to be
knowledgeable of the by-laws and articles of incorporation of CABMPCI, particularly regarding the
qualifications of the members, since the affairs of CABMPCI are within the area of jurisdiction of
respondents office. Despite this, however, respondent still applied for membership, enabling her to
obtain a loan, by clearly using her influence as an officer of the CDA in violation of R.A. No. 6938, the
very law she is supposed to implement. The Ombudsman argues that respondent put herself in a
conflict-of-interest situation proscribed by Section 7(d) of R.A. No. 6713 and clearly violated said law
when she took the prohibited loans.
Petitioner Martinez, on the other hand, submits that the CA erred in:
I.
APPRECIATING THE EVIDENCE ON RECORD; COROLLARILY, IT
GRAVELY ERRED IN GIVING FULL CREDENCE TO A MERE PHOTOCOPY OF
A CERTAIN UNVERIFIED AND UNIDENTIFIED PIECE OF DOCUMENT[;]
II.
HOLDING THAT SUBSTANTIAL EVIDENCE DOES NOT EXIST TO SUPPORT
[THE] OMB- LUZONS CONCLUSION THAT RESPONDENT IS GUILTY OF
GRAVE MISCONDUCT[; AND]
III.
. . . . NOT FINDING THAT MERE SOLICITATION OF A LOAN IS PROHIBITED
UNDER SECTION 7(D) OF R.A. 6713.[28]
Martinez argues that other than respondents bare allegations, respondent failed to prove that
she actually applied, and was duly admitted, for membership at CABMPCI. Martinez claims that the

CA erred in giving probative value to a mere photocopy of the cover page of Passbook No. 7716
allegedly issued to respondent as evidence of her membership. Martinez argues that respondent should
have submitted a copy of her application form duly accepted by the Board of Directors, together with
the official receipt evidencing the payment of membership fee and paid-up share capital. Martinez adds
that pursuant to CABMPCIs by-laws, respondent is not at all qualified to become a member.
As respondent never became a member, Martinez insists that it was only because of
respondents position and authority as Assistant Regional Director of the CDA that she went out of the
cooperatives policies in order to accommodate respondents loan applications.

Specifically, she

allowed respondent to obtain a loan despite the fact that the latter was not eligible for membership.
Indeed, Martinez points out that even if respondent was eligible for membership, the cooperatives
policy is to allow new members to avail of a loan only after two months of membership and to a
maximum loanable amount of only twice the membership capital/deposit.[29]
Martinez also disagrees with the CAs observation which seems to imply that respondents full
payment of the loan exonerates her from administrative liability. Martinez contends that the issue of
whether the loans were paid is immaterial to the charge of violation of Section 7(d) of R.A. No. 6713
since said law prohibits the mere solicitation of a loan. Martinez points out that from the very start,
respondent never denied obtaining a loan from CABMPCI.
Lastly, Martinez also urges the Court to set aside the October 30, 2002 CA decision in CA-G.R.
SP No. 71002 nullifying the October 16, 2001 RTC decision and the corresponding writ of execution
issued against respondents husband.
Respondent, for her part, manifests in her one-page comment that she is of the considered view
that the assailed CA decision and resolution are supported by law and jurisprudence. She submits that
the petitions present no cogent reasons to warrant reversal of assailed decision and resolution.
The petitions are partly meritorious.

It is worthy to note at the outset that the reasoning of the CA suffers from
inconsistency. On the one hand, the CA ruled that the only prohibition applicable to

CDA officials and employees is the prohibition stated in Article 28 of R.A. No. 6938,
and that the Deputy Ombudsman for Luzon erred in applying R.A. 6713 without
recognizing the fact of membership and its privileges. Implicit in the CAs statements
is a finding that the prohibition in Section 7(d) of R.A. No. 6713, which applies to all
public officials and employees, has been repealed by R.A. No. 6938. Yet, in the same
breath, the CA also ruled that there exists no substantial evidence to warrant a finding
that respondent violated Section 7(d) of R.A. No. 6713, thereby implying that the
prohibition still stands. Whichever way the CA decision is read, however, the error on
the part of the CA is clear.
First, the Court notes that nothing in R.A. No. 6938 shows that it repealed the
provisions of R.A. No. 6713 as regards the prohibitions on CDA officials and
employees. R.A. No. 6938 does not contain any provision categorically and expressly
repealing the provisions of R.A. No. 6713 pertaining to prohibitions on government
officials and employees, even at least for those belonging to the CDA. Laws are
presumed to be passed with deliberation and full knowledge of all laws existing on the
subject. Hence, a law cannot be deemed repealed unless it is clearly manifest that the
legislature intended it. The failure to add a specific repealing clause indicates that the
intent was not to repeal any existing law, unless an irreconcilable inconsistency and
repugnancy exist in the terms of the new and old laws. [30] Here, Article 127 of R.A. No.
6938 simply reads:
ART. 127. Repeals. Except as expressly provided by this Code, Presidential
Decree No. 175 and all other laws, or parts thereof inconsistent with any provision of
this Code shall be deemed repealed: Provided, however, That nothing in this Code shall
be interpreted to mean the amendment or repeal of any provision of Presidential Decree
No. 269: Provided further, That the electric cooperatives which qualify as such under
this Code shall fall under the coverage thereof.

Also, our reading of the provisions of R.A. No. 6938 fails to reveal to us any
inconsistency or repugnancy between the pertinent provisions of R.A. No. 6938 and

R.A. No. 6713. Thus, neither can there be any implied repeal. The ban on CDA
officials holding a position in a cooperative provided in R.A. No. 6938 should therefore
be taken for what it is, that is, it is a prohibition in addition to those provided in R.A. No.
6713 and specifically applicable to CDA officials and employees. True, R.A. No. 6938
allows CDA officials and employees to become members of cooperatives and enjoy the
privileges and benefits attendant to membership. However, R.A. No. 6938 should not be
taken as creating in favor of CDA officials and employees an exemption from the
coverage of Section 7(d), R.A. No. 6713 considering that the benefits and privileges
attendant to membership in a cooperative are not confined solely to availing of loans and
not all cooperatives are established for the sole purpose of providing credit facilities to
their members.[31] Thus, the limitation on the benefits which respondent may enjoy in
connection with her alleged membership in CABMPCI does not lead to absurd results
and does not render naught membership in the cooperative or render R.A. No. 6938
ineffectual, contrary to respondents assertions. We find that such limitation is but a
necessary consequence of the privilege of holding a public office and is akin to the other
limitations that, although interfering with a public servants private rights, are
nonetheless deemed valid in light of the public trust nature of public employment.
Second, the ratiocination of the CA that respondent should not have been held liable for grave
misconduct because of the supposed failure of Martinez to show undue influence is mistaken. The
relevant provision under which respondent was charged is Section 7(d) of R.A. No. 6713 which reads:
SEC. 7. Prohibited Acts and Transactions.- In addition to acts and omissions of
public officials and employees now prescribed in the Constitution and existing laws, the
following shall constitute prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
(d) Solicitation or acceptance of gifts. - Public officials and employees shall
not solicit or accept, directly or indirectly, any gift, gratuity, favor,
entertainment, loan or anything of monetary value from any person in the
course of their official duties or in connection with any operation being
regulated by, or any transaction which may be affected by the functions of
their office.

xxxx
The Ombudsman shall prescribe such regulations as may be necessary to carry
out the purpose of this subsection, including pertinent reporting and disclosure
requirements.
Nothing in this Act shall be construed to restrict or prohibit any educational,
scientific or cultural exchange programs subject to national security requirements.
(Emphasis supplied.)
Said prohibition in Section 7(d) is malum prohibitum.

It is the commission of that act as

defined by the law, and not the character or effect thereof, that determines whether or
not the provision has been violated. Therefore, it is immaterial whether respondent has fully
paid her loans since the law prohibits the mere act of soliciting a loan under the circumstances provided
in Section 7(d) of R.A. No. 6713. Neither is undue influence on respondents part required to be proven
as held by the CA. Whether respondent used her position or authority as a CDA official is of no
consequence in the determination of her administrative liability. And considering that respondent
admitted having taken two loans from CABMPCI, which is a cooperative whose operations are directly
regulated by respondents office, respondent was correctly meted the penalty of suspension by the
Deputy Ombudsman for Luzon for violation of Section 7(d). The CA committed reversible error when
it granted respondents petition for review which should have been dismissed for lack of merit.

One last note. Aside from the reversal of the appellate courts decision which
exonerated respondent from administrative liability, Martinez also prays, in the interest
of justice, that the October 30, 2002 CA decision nullifying the October 16, 2001 RTC
decision and the corresponding writ of execution issued against respondents husband,
be reversed and set aside.
This we cannot grant.
The CA decision has already attained finality on November 13, 2003 after this
Court denied the petition for review on certiorari assailing such decision. As held in the
case of Mocorro, Jr. v. Ramirez:[32]

x x x A definitive final judgment, however erroneous, is no longer subject to change or

revision.
A decision that has acquired finality becomes immutable and unalterable. This
quality of immutability precludes the modification of a final judgment, even if the
modification is meant to correct erroneous conclusions of fact and law. And this
postulate holds true whether the modification is made by the court that rendered it or by
the highest court in the land. The orderly administration of justice requires that, at the
risk of occasional errors, the judgments/resolutions of a court must reach a point of
finality set by the law. The noble purpose is to write finis to dispute once and for all.
This is a fundamental principle in our justice system, without which there would be no
end to litigations. Utmost respect and adherence to this principle must always be
maintained by those who exercise the power of adjudication. Any act, which violates
such principle, must immediately be struck down. Indeed, the principle of
conclusiveness of prior adjudications is not confined in its operation to the judgments of
what are ordinarily known as courts, but extends to all bodies upon which judicial
powers had been conferred.[33]
WHEREFORE, the May 6, 2005 Decision and August 8, 2005 Resolution of the Court of
Appeals in CA-G.R. SP No. 86896 are REVERSED and SET ASIDE. The September 15, 2004 Order
of the Office of the Deputy Ombudsman for Luzon in OMB-L-A-02-0803-L is REINSTATED and
UPHELD.
No costs.
SO ORDERED.
EN BANC

A.M. No. P-91-650 July 21, 1993

DOMINICA C. TADEO, complainant,
vs.
NELIA F. DAQUIZ, also known as Nelia D. Enrile, Staff Assistant I, Regional Trial Court,
Branch 105, Quezon City, respondent.
RESOLUTION

PER CURIAM:

In a sworn-letter complaint 1 filed 27 November 1991, Dominica C. Tadeo charged Nelia F.

Daquiz, Staff Assistant I, Regional Trial Court, Branch 105, Quezon City, with grave
misconduct and dishonesty.
Complaint alleged that pursuant to A.O. No. 83-91 dated 2 September 1991, respondent
Nelia F. Daquiz was ordered detailed to the Office of Court of Appeals Justice Cesar D.
Francisco effective immediately until the end of October 1991; that notwithstanding such
detail, respondent often visited the Regional Trial Court, Branch 105, during office hours and
made that office a center for her ready-to-wear (RTW) business; that she uttered statements
casting aspersions on complainant's children; that in the aforesaid A.O. No. 83-91,
respondent was directed to report, after her stint at the Court of Appeals, to the Office of the
Executive Judge, Regional Trial Court, Baguio City, effective 2 November 1991; and, that
despite the fact that she was overdue at the Regional Trial Court of Baguio City, she still kept
reporting to the Court of Appeals.
On 17 February 1992, then Court Administrator Josue N. Bellosillo (now Associate Justice of
this Court) forwarded the aforesaid complaint to Executive Judge Pedro T. Santiago, Regional
Trial Court, Quezon City, for appropriate action. 2
On 16 March 1992, the Leave Section of the Office of Administrative Services of this Court
sent respondent through Acting Presiding Judge Ildefonso E. Gascon, Regional trial Court,
Branch 105, a warning letter, followed with a second warning letter dated 15 April 1992,
concerning her absence without official leave (AWOL) since 2 November 1991, and directed
her to explain in writing why no disciplinary action should be taken against her for such
unauthorized absence. 3 Respondent did not comply.
On 31 March 1992, Executive Judge Pedro T. Santiago endorsed 4 to Court Administrator
Ernani Cruz Pao the letter-request of respondent dated 5 March 1992, for permission to
return to her regular assignment in the Regional Trial Court, Branch 105, Quezon City, in lieu
of her detail to Baguio City, alleging that such detail would separate her from her children and
would interrupt her studies at San Sebastian College where she was taking up law.
On 15 April 1992, the Office of Administrative Services sent a letter 5 to Judge Ildefonso E.
Gascon, requesting a recommendation as to whether respondent should be dropped from the
service as she was on AWOL since 2 November 1991. Judge Gascon did not respond to this
letter.
On 13 May 1992, complainant sent a letter 6 to the Chief Justice dated 27 April 1992 calling
his attention to the grave misconduct, dishonesty and viciously defiant acts of respondent, to
wit: (a) willful defiance of A.O. No.
83-91 dated 2 September 1991 by failing to report for work at the Regional Trial Court in
Baguio City; (b) AWOL since 23 December 1991, the date her official leave of absence
expired; (c) frequent visits at the Regional Trial Court branches at the Children's Museum and
Library, Quezon City, in search of "Padreous" (presumably "padrinos") to support her
application for transfer to
the Bureau of Internal Revenue and her reinstatement at the Regional Trial Court, Branch
105; and, (d) withdrawing salaries from 2 November to 15 March 1992 despite her being

AWOL.
On 18 May 1992, Deputy Court Administrator Reynaldo L. Suarez submitted a Memorandum
of even date for the Chief Justice on respondent's non-compliance with A.O. No. 83-91 and
the directive of the Office of the Administrative Services, and recommending that: (a)
respondent be directed to SHOW CAUSE within five (5) days why no disciplinary action
should be taken against her for defying A.O. No. 83-91, dated 2 September 1991; (b) she be
required to explain her failure to comply with the directive of the Office of the Administrative
Services; and, (c) A.O. 83-91 be REVOKED and respondent directed to return to her official
station at Regional Trial Court, Branch 105, Quezon City, pending the outcome of this case.

Acting on such Memorandum, the First Division of this Court issued on 15 July 1992, a
resolution 8 stating that
In view of the report sated May 18, 1992 of Deputy Court Administrator Reynaldo L. Suarez that
respondent Nelia Daquiz-Enrile, Clerk III, Regional Trial Court, Branch 105, Quezon City, has
not fully complied with Administrative Order No. 83-91 dated September 2, 1991 which reads as
follows:
In the interest of the service . . . Ms. NELIA D. ENRILE . . . is hereby DETAILED
to the Office of Associate Justice Cesar D. Francisco, Court of Appeals, Manila,
effective September 2, 1991, for a period of two (2) months and thereafter, to
the office of the Executive Judge, Regional Trial Court, Baguio City, to report
thereat until further orders from this Court.
Under this detail, Ms. Nelia D. Enrile is not entitled to any additional
compensation nor reimbursement for any expenses incident thereto . . . .
because she has not reported for work in the Office of the Executive Judge of the Regional Trial
Court in Baguio City up to this time, and, as the Court finds her explanation for her failure to do
so unsatisfactory, she is hereby ordered to SHOW CAUSE why no disciplinary action should be
taken against her.
The Court REITERATES its Adm. Order No. 83-91 and DIRECTS her to REPORT immediately
to the Executive Judge of the Regional Trial Court in Baguio City for duty pending the outcome
of the administrative complaint filed against her by Mrs. Dominica Tadeo. Proof of compliance
with this order should be submitted by her within ten (10) days from notice.

Subsequently, complainant filed a Supplemental Letter-Complaint 9 dated 20 July 1992

against respondent and prayed for the latter's dismissal from the service.
On 3 August 1992, the First Division noted 10 the aforementioned supplemental lettercomplaint pending compliance by respondent with the SHOW CAUSE resolution of 15 July
1992 for failure to report to the Regional Trial Court, Baguio City.
On 6 August 1992, Acting Presiding Judge Ildefonso E. Gascon
endorsed 11 to the Court Administrator the letter of respondent dated 1 July 1992, submitting
her irrevocable resignation because she could not comply with the Administrative Order No.
83-91 since she would be separated from her family and be forced to stop her studies.

On 9 December 1992, the First Division referred this case to the Court En Banc en consulta.
12

On 8 January 1993, complainant filed a letter 13 addressed to the Chief Justice stating, among
other matters, that respondent was already working as Clerk III, Law Division, Main Bldg.,
Bureau of Internal Revenue, and raising a query as to the whether such employment was
possible under Civil Service Rules considering the pendency of this case. Complainant
reiterated her prayer for the dismissal of respondent from the service.
On 15 January 1993, respondent wrote Court Administrator Pao informing him that she was
already employed with the Bureau of Internal Revenue, Head Office, Quezon City, since
August 1992, and requesting a certification of last salary received and leave credits as Staff
Assistant I, RTC, Branch 105, Quezon City. 14
On 5 March 1993, the Fiscal Management and Budget Office, in a Memorandum 15 for justice
Josue N. Bellosillo, stated that the salaries of respondent were only withheld effective April
1992, and that respondent's salaries as well as personal economic relief allowances (PERA)
from November 1991 to March 1992 amounting to P11,526.15 were released to the Regional
Trial Court, Quezon City.
Respondent's flagrant disregard of our SHOW CAUSE resolution of 15 July 1992 cannot be
condoned. Notwithstanding her resignation, respondent ought to be reminded that
acceptance thereof is indispensably necessary to be operative and effective. In Gamboa v.
Court of Appeals, 16 We ruled
To constitute a complete and operative resignation of public office, there must be an intention to
relinquish a part of the term, accompanied by the act of relinquishment and a resignation implies
an expression of the incumbent in some form, express or implied, of the intention to surrender,
renounce, and relinquish the office and the acceptance by competent and lawful authority
(Emphasis supplied).

Our acceptance of respondent's resignation becomes even more imperative in view of this
case against her of which she is well aware. A public office is a public trust and all public
officers must at all times be accountable to the people 17 Moreover, the conduct and behavior
of every one connected with an office charged with the dispensation of justice, like the
Regional Trial Court, from the presiding judge to the lowliest clerk should be circumscribed
with the heavy burden of responsibility. 18 The actuations of respondent do not measure up to
the standard criterion of a public servant.
Consider the following facts on record: (a) respondent has been absent without leave (AWOL)
since 2 November 1991; (b) she pressed for her return to the Regional Trial Court, Branch
105, Quezon City, instead of explaining her AWOL status as directed by the Office of
Administrative Services of this Court; (c) respondent pointed to her children and law studies
as reasons for her failure to comply with A.O. No. 83-91; (d) our resolution of 15 July 1992
found such reasons unsatisfactory; (e) in the same resolution, we reiterated our directive in A.
O. No. 83-91 and ordered respondent to SHOW CAUSE for her failure to report to the
Regional Trial Court in Baguio City; (f) respondent filed her resignation letter of 1 July 1992
and sought favorable consideration therefor;
(g) she did not comply with our directives contained in aforesaid resolution;

(h) respondent continued to receive her salary checks and personal economic relief
allowances (PERA) from November 1991 to March 1992 amounting to P11,526.15 despite
her prolonged and unauthorized leave of absence; and (i) she did not wait for the acceptance
of her resignation before she transferred in August 1992 to the Bureau of Interval Revenue.
These enumerated facts clearly reflect respondent's perception of her duties as dependent
upon her whim and convenience. She treated her position as though owed to her rather than
being beholden to the citizenry who employed her services for their benefit. Her undesirable
traits run counter to the mandate of Sec. 4. par. (a), of R.A. No. 6713 19 which states that
public officials and employees shall always uphold the public interest over and above
personal interest.
Furthermore, Sec. 2, Rule VI, of the Rules on Personnel Actions and Policies implementing
P.D. 807, otherwise known as the Civil Service Decree of the Philippines, provides
Sec. 2. An employee who seeks appointment by transfer or promotion to another office shall
first secure permission from the head of the Department or Agency where he is employed
(Emphasis supplied).

Again, respondent was remiss in her duty as a public servant in not obtaining permission from
this Court, her employer, before seeking transfer to another government agency. She
certainly lacks the faithfulness, devotion and dedication to duty required of public officials and
employees from the moment of their entrance to public service. 20
In the light of the foregoing, we hold that respondent's resignation is inoperative and
ineffective for lack of acceptance. Her unexplained and unauthorized absence without leave
constitutes an abandonment of her position as Staff I of the Regional Trial Court, Branch 105,
at Quezon City, to the detriment of the service. Likewise, respondent's brazen disregard of
our orders renders her unfit to continue serving in the judiciary.
In The Court Administrator v. Marilou T. Alejo, 21 we dismissed Court Interpreter Marilou T.
Alejo for abandonment of her position with forfeiture of her salaries and other benefits due her
as of 30 September 1989. In that case, respondent failed to comply with our Resolutions: (a)
dated 20 Mach 1990 requiring her to comment on the complaint against her for
incompetence, dishonesty and absence without leave since September 1989; (b) dated 21
November 1990 directing her to show cause why she should not be disciplinary dealt with for
failure to comply with the Resolution of 20 March 1990; and, (c) dated 4 March 1991 ordering
her to pay a fine of P500.00 and show cause why her failure to comment on the complaint
should not be deemed a tacit admission of the truth of the charges, and why she should not
be dropped from the rolls.
We can do no less in the present case.
We find it opportune to once again remind court officials and employees that the
administration of justice is a sacred and onerous task. All those who are involved in this work
must serve with utmost dedication, loyalty and devotion to achieve a speedy, fair and efficient
justice for all.

WHEREFORE, NELIA F. DAQUIZ, also known as NELIA D. ENRILE, is hereby DISMISSED

from the judicial service effective 2 November 1991 when her last leave of absence expired,
with forfeiture of all retirement benefits and privileges, if any, and with prejudice to her
reinstatement or reemployment in any branch of the government or any of its agencies or
instrumentalities, including government owned or controlled corporation.
She is further directed to REFUND to this Court immediately the sum of P11,526.15
corresponding to the amount of salary checks and personal economic relief allowances
(PERA) received by her during the period of her unauthorized absence from work.
SO ORDERED.
EN BANC
[P.E.T. Case No. 001. February 13, 1996]
MIRIAM DEFENSOR-SANTIAGO, protestant, vs. FIDEL VALDEZ RAMOS, protestee.
SYLLABUS
1.
POLITICAL LAW; PRESIDENTIAL ELECTORAL TRIBUNAL; ELECTION
PROTEST; IN ASSUMING THE OFFICE OF SENATOR, THE PROTESTANT HAS
EFFECTIVELY ABAN-DONED OR WITHDRAWN HER ELECTION PROTEST, THEREBY
MAKING IT MOOT. - The term of office of the Senators elected in the 8 May 1995 election is six
years, the first three of which coincides with the last three years of the term of the President elected in
the 11 May 1992 synchronized elections. The latter would be Protestant Santiagos term if she would
succeed in proving in the instant protest that she was the true winer in the 1992 elections. In assuming
the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the
very least, in the language of Moraleja, abandoned her determination to protect and pursue the public
interest involved in the matter of who is the real choice of the electorate. Such abandonment or
withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest would
serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992
presidential election, thereby enhancing the all-to crucial political stability of the nation during this
period of national recovery. It must also be stressed that under the Rules of the Presidential Electoral
Tribunal, an election protest may be summarily dismissed, regardless of the public policy and public
interest implications thereof, on the following grounds: (1) The petition is insufficient in form and
substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof; (3) The
filing fee is not paid within the periods provided for in these Rules; (4) The cash deposit, or the first P
100,000.00 thereof, is not paid within 10 days after the filing of the protest; and (5) The petition or
copies thereof and the annexes thereto filed with the Tribunal are not clearly legible. Other grounds for
a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character,
may likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its
discretion, hold a preliminary hearing on such grounds. In sum, if an election be dismissed on technical
grounds, then it must be, for a decidedly stronger reason, if it has become moot due to its abandonment
by the Protestant.
2.
ID.; ID.; ID.; THE PROTESTANT ABANDONED HER ELECTION PROTEST WHEN
SHE WAIVED THE REVISION OF THE REMAINING BALLOTS AND FAILED TO

INFORM THE TRIBUNAL WHETHER SHE STILL INTENDS TO PRESENT ADDITIONAL

EVIDENCE AFTER THE COMPLETION OF THE REVISION OF THE BALLOTS FROM
THE PILOT AREAS. - This Tribunal cannot close its eyes to the fact that the Protestant has decided
to waive the revision of the remaining unrevised ballots from 4,017 precincts out of the 17,527
precincts of the designated three pilot areas. This is an unabashed reversal from her original stand in
her Motion and Manifestation dated 18 October 1993. Taking this into account, this Tribunal declared
in its resolution of 21 October 1993: After deliberating on the foregoing pleadings and the arguments of
the parties, the Tribunal rules for the Protestant insofar as the revision of the remaining ballot boxes
from her pilot areas are concerned, and against the immediate application of Rule 61 of the Rules of the
Tribunal to the Protestee in respect of the Counter-Protest. At this stage of the proceedings in this case
it cannot be reasonably determined whether the revised ballots are considerable enough to establish a
trend either in favor of or against the Protestant as would justify an appropriate action contemplated in
Rule 61 of the Rules of the Tribunal, or whether the unrevised ballots from said areas would not, in the
language of the Protestant, materially affect the result of the representative sample of the ballot boxes
so far revised. As to the 1,300 ballot boxes from Makati, the proper time to raise the objections to the
ballot boxes and its contents would be during the revision stage. Consequently, we resolved therein to:
A. ORDER the revision of the remaining unrevised ballot boxes enumerated in the aforequoted
paragraph A to the 5 October 1995 Resolution and for the purpose to DiRECT the Acting Clerk of
Court of the Tribunal to collect said ballot boxes and other election documents and paraphernalia from
their respective custodians in the event that their revisions in connection with other election protests in
which they are involved have been terminated, and if such revisions are not yet completed, to
coordinate with the appropriate tribunal or court in which such other election protests are pending and
which have already obtained custody of the ballot boxes and started revision with the end in view of
either seeking expeditious revisions in such other election protests or obtaining the custody of the ballot
boxes and related election documents and paraphernalia for their immediate delivery to the Tribunal;
and B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt hereof, if
after the completion of the revision of the ballots from her pilot areas she would present evidence in
connection therewith. Until the present,however, the Protestant has not informed the Tribunal whether
after the completion of the revision of the ballots from her pilot areas, she still intends to present
evidence in connection therewith. This failure then, is nothing short of a manifest indication that she
no longer intends to do so.
3.
ID.; ID.; ID.; IT IS IRRELEVANT AT THIS STAGE OF THE PROCEEDINGS THAT
THE PROTESTANTS REVISORS DISCOVERED ALLEGED IRREGULARITIES IN 13,510
OUT OF THE 17,525 CONSTESTED PRECINCTS IN THE PILOT AREAS. - It is entirely
irrelevant at this stage of the proceedings that the Protestants revisors discovered in the course of the
revisions alleged irregularities in 13,510 out of the 17,525 contested precincts in the pilot areas and
have objected to thousands of ballots cast in favor of the Protestee. Revision is merely the first stage,
and not the alpha and omega, of an election contest. In no uncertain terms then, this Tribunal declared
in its resolution of 18 March 1993 that: Protestant knows only too well, being a lawyer and a former
judge herself, that the revision phase of her protest is but the first stage in the resolution of her electoral
protest and that the function of the revisors is very limited. In her 12 February 1993 Comment on
Protestees 5 February 1993 Urgent Motion for the issuance of a resolution which, inter alia,
would clarify that revisors may observe the objections and/or claims made by the revisors of the other
party as well as the ballots subject thereof, and record such observations in a form to be provided for
that purpose. Protestant unequivocally stated: 8. Further, the principle and plan of the RPET [Rules
of the Presidential Electoral Tribulal is to subdivide the entire election contests into various stages.
Thus, the first stage is the Revision Proper. Second is the technical examination if so desired by either

party. Third, is the reception of evidence. And fourth, is the filing of parties memoranda. and
described the function of the revisors as solely to examine and segregate the ballots according to
which ballots they would like to contest or object (contested ballots) and those which they admit or
have no objections (uncontested ballots). Indeed, revisors do not have any judicial discretion; their
duties are merely clerical in nature ( Hontiveros vs. Altavas, 24 Phil. 632 [1913]). In fact, their opinion
or decision on the more crucial or critical matter of what ballots are to be contested or not does not
even bind the Tribunal (Yalung vs. Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168
[1929]). Thus, no undue importance may be given to the revision phase of an election contest. It can
never serve as a logical or an acceptable basis for the conclusion that massive fraud or irregularities
were committed during an election or that a Protestatnt had won in said election. If that were so, a
Protestant may contest all ballot boxes and, in the course of the revision thereof, object - for any
imagined ground whatsoever, even if the same be totally unfounded and ridiculous - to all ballots
credited to the Protestee; and then, at the end of the day, said Protestant may even announce to the
whole world that contrary to what is reflected in the election returns, Protestee had actually lost the
elections.
4.
ID.; ONLY ONE REASON WHY THE PROTEST HAD BEEN RENDERED MOOT
AND ACADEMIC - IT HAS BEEN ABANDONED OR WITHDRAWN. - Mr. Justice Punos
perception that the majority would dismiss this election protest as moot and academic on two (2)
grounds: first, that the findings of irregularities made by the revisors of the protestant in the course of
the revision of ballots in 13,510 contested precincts are entirely irrelevant; and second, she abandoned
her protests when she filed her certificate of candidacy in the 8 May 1995 senatorial elections, is
inaccurate. The dispositive portion of this resolution leaves no room for any doubt or
miscomprehension that the dismissal is based on the ground that the protest has been rendered moot
and academic by its abandonement or withdrawal by the Protestant as a consequence of her election
and assumption of office as Senator and her discharge of the duties and functions thereof There is,
therefore, ONLY ONE reason or ground why the protest has been rendered moot and academic, i.e., it
has been abandoned or withdrawn. This was the very issue upon which the parties were required, in
the resolution of 26 September 1994, to submit their respective memoranda.
5.
ID.; ID.; ID.; IT WAS NEVER THE VIEW OF THE MAJORITY THAT THE
PROTESTANTS FILING OF THE CERTIFICATE OF CANDIDACY FOR A SEAT IN THE
SENATE IN THE 8 MAY 1995 ELECTION WAS THE SOLE OPERATIVE ACT WHY THE
PRESENT PROTEST HAS BECOME MOOT AND ACADEMIC. - Then too, it was never the
view of the majority that the Protestants filing of the certificate of candidacy for a seat in the Senate in
the 8 May 1995 election was the sole and exclusive operative act for what Mr. Justice Puno perceives
to be the majoritys second ground why this protest has become moot and academic. To the majority,
such filing was only the initial step in a series of acts performed by the Protestant to convincingly
evince her abandonment of this protest, viz., campaigning for the office of Senator, assumption of such
office after her election, and her discharge of the duties and functons of the said office. Precisely, in
the resolution of 26 September 1995, this Court directed the Protestant and the Protestee to submit their
respective memoranda on the issue [of] whether or not the protest has not been rendered moot and
academic by the election of the Protestant as Senator and her subsequent assumption of office as such
on 30 June 1995. As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite
Blacks Law Dictionary and the cases of Roebuck vs. Mecosta County Road Commission, Dober vs.
Ukase Inv. Co., and McCall vs. Cull, cited therein. We have turned to the primary sources of these
cases, meticulously perused them, and found none materially significant to this protest.

6.
ID.; ID.; ID.; IN SUM, WHAT APPEARS TO BE THE CORRECT VIEW IN THE
DISSENT IS, IN THE FINAL, ANALYSIS, MISPLACED; REASON. - What initially appears to
be the correct view in the dissent is, in the final analysis, misplaced. This must also be the verdict upon
the following pronouncements of Mr. Justice Puno: A more fundamental reason prevents me from
joining the majority. With due respect, I submit that the majority ruling on abandonment is inconsistent
with the doctrine that an election contest is concerned less with the private interest of the candidates
but more with public interest. Under a republican regime of government, the overarching object of an
election contest is to seek and enforce the judgment of the people on who should govern them. It is not
a happenstance that the first declaration of policy of our Constitution underlines in bright that
sovereignty resides in the people and all government authority emanates from them. The first duty of
a citizen as a particle of sovereignty just as the first duty of any reigning government is to uphold the
sovereignity of the people at all cost. Thus, in Moraleja vs. Relova, we emphatically held that x x x
once the court has acquired jurisdiction over an election contests, the public interest involved demands
that the true winner be known without regard to the wishes or acts of the parties so much so that there
can be no default, compromise nor stipulation of facts in this kind of cases. Wisely, this Tribunal has
consistently demurred from dismissing election contests even on the ground of death of the protestee or
the protestant. The majority appears to stray away from this lodestar of our Constitution. It will
dismiss the case at bar even while the protestee and the protestant are yet alive, even while the term of
the 1992 president-elect has yet to expire, and even while the protestee and the protestant together
plead that the Tribunal should determine the true will of the people by deciding their dispute on the
merits] and not on technicalities that trifle with the truth. I submit that it is the better stance for the
Tribunal to decide this election contest on the merits] and vindicate the political judgment of the people
which far surpasses in significance all other considerations. Our duty to tell the people who have the
right to govern them cannot depend on the uncertain oscillations of politics of the litigants as often
times they are directed by the wind of convenience, and not by the weal of the public. For one, the
minority has, in no uncertain terms, demonstrated the dissimilarities in the factual settings of the instant
protest vis-a-vis the earlier cases that enunciated the doctrine relied on by Mr. Justice Puno. Then, too,
it must be reitereated, to avoid further miscomprehension, that the Moraleja ruling even conceded that
the matter of abandonment could be different if the petitioner therein had accepted a permanent
appointment to a regular office during the pendency of his protest. In short Moraleja in fact intimates
abandonment of an election protest if, in the meantime, the Protestant accepts a permanent appointment
to a regular office. If that can be so, then would it be, and for weightier reasons, against a protestant
who voluntarily sought election to an office whose term of the contested office, and after winning the
said election, took her oath and assumed office and thereafter continuously serves it. In Moraleja, the
Supreme Court was meticulous in excluding abandonment from the enumeration of specific acts or
wishes of the parties which must be disregarded because of the public interest component of an
election protest. As reflected in the above quotation from Mr. Justice Punos dissent, only default,
compromise, or stipulation of facts are included.
7.
ID.; ID.; ID.; THE DISSENT FORGETS THAT THE RULES OF THE TRIBUNAL
ALLOW SUMMARY DISMISSAL OF ELECTION PROTEST EVEN FOR LESS
IMPORTANT GROUNDS. - With all due respect, the above pronouncement of Mr. Justice Puno
forgets that. as distinctly pointed out in the early part of this Resolution, the Rules of the Tribunal allow
summary dismissal of election protests even for less important grounds, to repeat, such as the petition
filed with the Tribunal or the annexes attached thereto are not clearly legible, or the filing fees and cash
deposits were not filed within the periods fixed in the Rules, and the additional provision for dismissal
under Rule 61. All these provisions of the Rules would then be put to naught or, at the very least,
modified or amended in a way not authorized by the Rules, if the theory of Mr. Justice Puno be

accepted. Such theory would unreasonably bind the Tribunal to the technical minutiae of trial on the
merits to bring to their ultimate end all protests or contests filed before it - including those filed by
candidates who even forgot to vote for themselves and obtained no votes in the final count, but, unable
to accept defeat, filed a protest claiming massive fraud and irregularities, vote-buying, and terrorism.
Consequently, all the time and energy of the Justices of the Supreme Court would be spent appreciating
millions of revised ballots to the prejudice of their regular judicial functions in the Court, as the
electoral protest of every Juan, Pedro, and Jose who lost in the presidential elections would have to be
heard on the merits. Public policy abhors such a scenario and no public good stands to be thereby
served.
PADILLA, J., concurring and dissenting:
PROTESTANTS CANDIDACY FOR SENATOR IN THE MAY 1995 ELECTIONS, HER
ELECTION TO SAID OFFICE AND HER ACTUAL ASSUMPTION AND DISCHARGE OF
THE OFFICE COMBINED TO CONSTITUTE A SUPERVENING FACT THAT RENDERED
MOOT AND ACADEMIC HER PRESENT PROTEST. - Protestants candidacy for Senator in the
8 May 1995 elections, her election to said office and her actual assumption and discharge of the office,
combined to constitute, in my view, a supervening fact that rendered moot and academic her present
protest because, if she were to pursue her present protest (without such supervening fact) and, she were
to win the protest, her term of office as President of the Philippine would in any case expire on 30 June
1998. When she, however, chose to run for Senator in the 8 May 1995 elections, which was after her
filing of the present protest, she knew that, if elected, her term of office as Senator would expire only
on 30 June 2001. Therefore, as a successful protestant in this case, she could be President only up to
30 June 1998. What happens then to the last three (3) years of her term as Senator, i.e., 30 June 1998 to
30 June 2001? There would be a void, a hiatus, or vacuum because after serving as President up to 30
June 1998 she can no longer assume the office of Senator from 30 June 1998 to 30 June 2001. There
would likewise be a void, a hiatus or vacuum in her term of office as Senator from the time she
assumes the presidency to 30 June 1998 (assuming she were to win the present protest). Thus, by
continuing this protest, there could result an ensuing vacuum in the office of Senator, to which position
protestant has been duly elected subsequent to the filing of her present protest. And yet, natura vacuum
abhorret. (Nature abhors a vacuum).
PUNO, J., dissenting:
1.
ONLY AFTER THE PROTESTANT HAS BEEN AFFORDED THE OPPORTUNITY
TO ADDUCE FURTHER EVIDENCE TO PROVE HER CASE CAN THE TRIBUNAL
PROCEED TO EXAMINE THE CONTESTED BALLOTS AND RULE WHETHER OR NOT
THE PROTESTANT HAS FAILED TO MAKE A CASE. - I will not dismiss as entirely irrelevant
the allegations of the revisors of the protestant that they discovered in the course of the revision
irregularities in 13,510 precincts in the pilot areas. The protestant still has the opportunity to adduce
further evidence to prove her case. She can still undertake to make a technical examination of the
ballots through handwriting experts. She can still present the testimonies of witnesses like voters,
watchers, inspectors and others who have knowledge of the alleged fraud and irregularities. She can
still submit a memorandum of facts and law to clinch her case. It is only after the protestant has been
afforded the opportunity to exercise these rights that the Tribunal can proceed to examine the contested
ballots. Then and only then can the Tribunal rule whether or not the protestant failed to make a case.

2.
ID.; THE TRIBUNAL CANNOT EVADE THE DUTY TO EXAMINE THE
PROTESTED BALLOTS, FOR THE BALLOTS ARE THE BEST EVIDENCE TO ENABLE
THE COURT TO DETERMINE THE VOTES OBTAINED BY THE PROTESTANT AND THE
PROTESTEE. It can be assumed arguendo that the protestant has lost her right to present additional
evidence by her failure to invoke it within a reasonable time. Even then, I submit that the nonpresentation of further evidence is not necessarily fatal. Certain types of fraud and irregularities can
be proved without the testimonies of handwriting experts or the testimonies of voters, watchers,
inspectors and others who witnessed the same. There are fraud and irregularities which are patent on
the face of the ballots and other election documents and paraphernalia. Ballots that are marked, ballots
that are spurious, ballots written by the same hand, a ballot written by different hands, tampered tally
sheets, false list of voters, falsified election returns, and other election documents can be appreciated
without need of evidence aliunde. For this reason. the Tribunal cannot evade the duty to examine the
protested ballots for the ballots are the best evidence to enable the court to determine the votes
obtained by the protestant and the protestee. Needless to state, until the Tribunal examines and
appreciates the protested ballots it cannot dismiss the protest.
3.
ID.; MR. JUSTICE PUNO DOES NOT SUBSCRIBE TO THE RULING OF THE
MAJORITY THAT THE PROTESTANT ABANDONED HER PROTEST WHEN SHE RAN
FOR SENATOR AND DISCHARGED HER DUTIES. - I do not also subscribe to the ruling of the
majority that the protestant abandoned her protest when she ran for Senator and discharged her duties.
Abandonment in law means, voluntary relinquishment of all right, title, claim x x x with the intention
of not reclaiming it. In ascertaining abandonment, whether in election, property, or criminal
litigations, x x x intention is the first and paramount object of inquiry for there can be no
abandonment without the intent to abandon. Intention is subjective and can be inferred from the acts
and conduct of a person. It is a question of fact. In the case at bar, the Tribunal cannot resolve this
question of fact for lack of competent evidence. The protestee has not adduced evidence to prove acts
and omissions of the protestant which can be the basis for a finding that she intentionally abandoned
her protest. Indeed, the protestee does not want the protest to be dismissed on a technicality but prays
that it be decided on the merits. The lack of competent evidence on record notwithstanding, the
majority ruled, to wit: x x x She knew that the term of office of the Senators who would then be
elected would be six (6) years, to commence at noon on the thirtieth day of June next following their
election and to end at noon of 30 June 2001. Knowing her high sense of integrity and candor, it is
most unlikely that during her campaign she promised to serve the electorate as Senator, subject to the
outcome of this protest. In short, she filed her certificate of candidacy for the Senate without any
qualification, condition, or reservation.
4.
ID.; THE MAJORITY RULING ON ABANDONMENT IS INCONSISTENT WITH THE
DOCTRINE THAT AN ELECTION CONTEST IS CONCERNED LESS WITH THE PRIVATE
INTEREST OF THE CANDIDATES BUT MORE OF PUBLIC INTEREST. A more
fundamental reason prevents me from joining the majority. With due respect, I submit that the
majority ruling on abandonment is inconsistent with the doctrine that an election contest is concerned
less with the private interest of the candidates but more with public interest. Under a republican
regime of government, the overarching object of an election contest is to seek and enforce the judgment
of the people on who should govern them. It is not a happenstance that the first declaration of policy of
our Constitution underlines in bright that sovereignty resides in the people and all government
authority emanates from them. The first duty of a citizen as a particle of sovereignty in a democracy is
to exercise his sovereignty just as the first duty of any reigning government is to uphold the sovereignty
of the people at all cost. Thus, in Moraleja vs. Relova, we emphatically held that x x x once the court

has acquired jurisdiction over an election contest, the public interest involved demands that the true
winner be known without regard to the wishes or acts of the parties so much so that there can be no
default, compromise nor stipulation of facts in this kind of cases. Wisely, this Tribunal has
consistently demurred from dismissing election contests even on the ground of death of the protestee or
the protestant. The majority appears to stray away from this lodestar of our Constitution. It will
dismiss the case at bar even while the protestee and the protestant are yet alive, even while the term of
the 1992 presidential-elect has yet to expire, and even while the protestee and the protestant together
plead that the Tribunal should determine the true will of the people by deciding their dispute on the
merit and not on technicalities that trifle with the truth. I submit that it is the better stance for the
Tribunal to decide this election contest on the merit and vindicate the political judgment of the people
which far surpasses in significance all other considerations. Our duty to tell the people who have the
right to govern them cannot depend on the uncertain oscillations of politics of the litigants as often
times they are directed by the wind of convenience, and not by the weal of the public. Even the
protestee has pleaded that the protest be tried on its merit as it involves a matter of paramount and
grave public interest. Considering these distinct facts, the Tribunal should not dismiss the protest on
the ground of mootness.
KAPUNAN, J., dissenting:
1.
MR. JUSTICE KAPUNAN DISAGREES THAT AS A CONSEQUENCE OF THE
PROTESTANTS ELECTION AND ASSUMPTION OF OFFICE AS SENATOR, SHE HAS
EFFECTIVELY ABANDONED HER ELECTION PROTEST. - When the protestant ran for the
Senate last year, she was not the President of the country and there was nothing to relinquish.
Abandonment is the giving up of a thing absolutely, indicating intention to forsake or relinquish the
same. In relation to public office, abandonment must be total and under such circumstance as clearly
to indicate an absolute relinquishment. That is not the situation here, because when the protestant ran
for presidency, she was not even an elective official and there was no position to abandon.
2.
ID.; MR. J. KAPUNAN DOES NOT SUBSCRIBE TO THE MAJORITYS THEORY
THAT BY FILING THE CERTIFICATE OF CANDIDACY FOR THE SENATE,
CAMPAIGNING FOR SAID OFFICE AND SUBMITTING HERSELF TO BE VOTED UPON
IN THE ELECTIONS, THE PROTESTANT HAD ENTERED INTO A POLITICAL
CONTRACT WITH THE ELECTORATE THAT IF ELECTED SHE WOULD ASSUME THE
OFFICE OF SENATOR, DISCHARGE ITS FUNCTIONS, AND SERVE HER
CONSTITUENCY AS SUCH FOR THE TERM FOR WHICH SHE WAS ENTITLED. - First,
there is no evidence that she made such promise. On the contrary, I believe, she had made herself clear
during the 1995 Senatorial campaign that she was not abandoning her protest, meaning that in the event
she would be declared the winner in the 1992 Presidential elections, she may opt to assume the
Presidency, thus shortening her term of office as Senator. When the voters made their choice for the
Senate, they were fully aware that the protestant may not serve the full term of her office if she wins
her protest. Despite this, the voters elected her as Senator. Second, if by filing her certificate of
candidacy as Senator and campaigning for said office, she entered into a contract with the electorate
that she will serve the full term of her office as Senator, in the same token, by filing her certificate of
candidacy for the Presidency and campaigning for that office, she must necessarily have entered into a
contract with the electorate that she will serve the full term of the Presidency if elected. Third, there
has been several cases where members of Congress gave up their positions before their terms of office
expired to accept appointments in the cabinet or other high-profile positions. To mention a few, the
present Secretary of Justice Teofisto Guingona gave up his Senate seat a few years ago to become

Executive Secretary. Congressman Salvador Escudero has just been named the new Secretary of
Agriculture. Yet, there has not been any murmur that said officials have violated any political contract
with the electorate that elected them to Congress.
3.
ID.; MR. J. KAPUNAN WOULD NOT THEREFORE CONCLUDE THAT THE
PROTESTANT ABANDONED HER ELECTION PROTEST WHEN SHE WAIVED THE
REVISION OF THE REMAINING BALLOTS, AND FAILED TO INFORM THE TRIBUNAL
WHETHER SHE STILL INTENDS TO PRESENT ADDITIONAL EVIDENCE AFTER THE
COMPLETION OF THE REVISION OF THE BALLOTS FROM THE PILOT AREAS. - Her
waiver could have been due to reasons other than that the majority speculatively imputes to her. It
could have been based on her belief that the contested ballots in the 13,500 precincts, if and when
properly appreciated, would sufficiently substantiate the allegations in her petition. Or she could have
been impelled by the desire to expedite the electoral proceedings and minimize her expenses. With
regard to the protestants failure to inform the Tribunal whether she still intends to present additional
evidence after the completion of the revision of the ballots from the pilot areas (as embodied in the
resolution dated 21 October 1993), her omission, likewise does not amount to a waiver or
abandonment of her election protest. Resolution of election cases, it must be stressed, is a Continuous
process albeit divided into various stages. These stages - revision, technical examination, presentation
of evidence and submission of memoranda - are but parts of one whole procedure. Except for the
technical examination of the ballots, wherein the parties are expressly given discretion whether or not
to move for one after completion of each stage, the proceedings necessarily move to the next step. The
procedure will run its natural course pursuant to the rules of the Presidential Electoral Tribunal (PET).
Since the phases or stages in the electoral protest are laid down in the rules, the parties are supposed to
act in accordance with the sequential order of the proceedings without being required to manifest
formally at each stage if they are willing to proceed to the next one. Hence, waiver of one stage or the
remaining stages cannot he impliedly imputed to a party unless there is a manifest intentional and
unequivocal statement or action to this effect. The least the Tribunal should have done was to direct
the protestant to show cause why her protest should not be dismissed for failure to file the required
information, which liberal process the Tribunal customarily accords the parties to find out the reasons
for the omission.
4.
ID.; THE PROTEST CANNOT BE LAWFULLY DISMISSED UNDER SECTION 61 OF
THE P.E.T. RULES; REASON. - The protest cannot, therefore, be lawfully dismissed under Section
61 of the PET rules. Bear in mind that not only revision of the ballots but also reception of evidence is
required before the Tribunal can dismiss an election protest on the grounds that the protestant will
most probably fail to make out his case. In the instant protest, the revision of the ballots has hardly
been completed and presentation of evidence, undoubtedly the most crucial aspect of the proceedings,
has yet to commence. To utilize Section 61 of the PET rules to justify dismissal of the instant case at
this early stage of the proceedings is to jump the gun on both the protestant and the protestee. Having
granted the protestants motion of August 16, 1995 to dispense with the revision of ballots and other
election documents in the remaining precincts of the pilot areas where fraud was allegedly rampant, we
ought to proceed to the next step, by giving both parties a chance to present their evidence. Under Rule
61 of the Rules of the Presidential Electoral Tribunal, if, after examination and proof of such evidence
we would be convinced that the protestant would most probably fail to make out her case, then the case
could be dismissed at once. This process would take a little more time, but it is solution which is fair
and just to everyone and is the best way to finally resolve the doubt surrounding the 1992 presidential
elections, thus help pave the way to true political stability and national recovery.

VITUG, J., separate opinion:

MR. JUSTICE VITUG IS UNABLE TO SHARE THE CONCLUSION OF THE MAJORITY
THAT THE PROTESTANT IS DEEMED TO HAVE ABANDONED HIS PROTEST WHEN
SHE RAN IN THE MAY 1995 ELECTIONS FOR, AND WAS PROCLAIMED AND TOOK
OFFICE AS, SENATOR OF THE REPUBLIC. - The submission that the protestant is deemed to
have abandoned her protest because she ran in the May 1995 elections for the position of, and was
proclaimed and so eventually took office as, Senator of the Republic is a conclusion, I fear, I am unable
to share. Abandonment is personal, and it must be manifested in unequivocal terms by the person
charged with it. If, as it so appears, the protestant has not to date informed the tribunal whether (or
not) after the completion of the revision of the ballots from her pilot areas she would present evidence
in connection therewith, then the tribunal must act on this basis and decide on whatever it may have
on hand with equal opportunity to the protestee to make his own submission of evidence if still desired.
Considering that there appears to be no constitutional proscriptions involved, I vote to allow the
Tribunal to proceed with a final determination on the merits of the protest rather than a dismissal on the
mere ground of abandonment.
APPEARANCES OF COUNSEL
Leonardo C. Aguilar for protestant.
Former Justice Lino Patajo, Avelino J. Cruz, Jr., Renato L. Cayetano, Emerito M. Salva, and Simeon
V. Marcelo for protestee.
RESOLUTION
In her motion of 16 August 1995, reiterated in her Comment of 29 August 1995, Protestant Miriam
Defensor-Santiago prayed that the revision of ballots in the remaining precincts of the pilot areas be
dispensed with and the revision process in the pilot areas be deemed completed.
We deferred action on that motion and required the Protestant and the Protestee to submit their
respective memoranda on the issue of whether this case had been rendered moot by the election of the
Protestant as a Senator in the May 1995 election and her assumption of office as such on 30 June 1995.
The Protestant answers this issue in the negative. Relying on Sibulo vda. de De Mesa vs. Mencias,[1]
Lomugdang vs. Javier,[2] and De Castro vs. Ginete,[3] she asserts that an election contest involves not
only an adjudication and settlement of the private interests of the rival candidates, but more
importantly, the paramount need to dispel, once and for all, the uncertainty that beclouds the true
choice of the electorate. Hence, it is imbued with, public interest and should be pursued to its final
conclusion to determine the bona fide winner. She further asserts that an election case may be rendered
moot only if the term of the contested office has expired,[4] thus her election as Senator and assumption
of office as such cannot, under the rule laid down in Moraleja vs. Relova,[5] be construed as an
abandonment of the instant protest. Finally, she alleges that this Court has departed from the orthodox
view that a case should be dismissed if it has been mooted.[6]
For his part, the Protestee submits that there is strong legal basis for this Tribunal to rule that the
Protestant is deemed to have abandoned the instant protest, in light of the ruling in Dimaporo vs.
Mitra[7] which construed Section 67, Article IX of B.P. Blg. 881 (Omnibus Election Code).[8] He

submits, however, that public interest requires that this protest be resolved on the merits considering
that: (a) it involves a matter of paramount and grave public interest; and (b) it was filed merely to keep
Protestant Santiago in the limelight in preparation for her Senatorial campaign. He likewise claims that
a resolution on the merits would confirm his victory in the 11 May 1992 presidential election and prove
that the instant protest is unfounded. Furthermore, it would establish guiding and controlling principles
or doctrines with respect to presidential election protest cases, thereby educating the bench and the bar
and preventing the indiscriminate filing of baseless protest cases.
We cannot subscribe to the view of the Protestee that by filing her certificate of candidacy for Senator
Protestant Santiago ipso facto forfeited her claim to the office of President pursuant to Section 67 of
B.P. Blg. 881. Plainly, the said section applies exclusively to an incumbent elective official who files a
certificate of candidacy for any office other than the one he is holding in a permanent capacity. Even
more plain is that the Protestant was not the incumbent President at the time she filed her certificate of
candidacy for Senator nor at any time before that. Thus, the holding in Dimaporo does not apply to the
Protestant.
Neither do we find any convincing logic to the Protestees proposition that this case should
nevertheless be resolved on the merits because its filing was done in bad faith, i.e., merely to keep the
Protestant in the limelight in preparation for her Senatorial campaign. If that were so, then public
interest would be served if this case were put to an abrupt end after the Protestant won a seat in the
Senate. Finally, neither do we find any cogent nor compelling reason to proceed with this case, in the
event that we find it to be moot, simply to establish guiding and controlling principles or doctrines with
respect to election protests involving the office of the President or the Vice- President.
I.
The key then to the resolution of the aforestated issue is the consideration of public interest and public
policy and their encompassing effects on election cases which have been unequivocally expressed in
the cases cited by the Protestant.
In Sibulo vda. de De Mesa vs. Mencias,[9] this Court stated:
It is axiomatic that an election contest involving as it does not only the adjudication settlement of the
private interests of the rival candidates but also the paramount need of dispellling once and for all the
uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the
prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it
onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy
impose upon courts the imperative duty to ascertain by all means within their command who is the real
candidate elected in as expeditious a manner as possible, without being fettered by technicalities and
procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al.,
G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So
inextricably intertwined are the interests of the contestants and those of the public that there can be no
gainsaying the logic of the proposition that even the voluntary cessation in office of the protestee not
only does not ipso facto divest him of the character of an adversary in the contest inasmuch as he
retains a party interest to keep his political opponent out of the office and maintain therein his
successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue
the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs.
Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206).

Upon the same principle, the death of the protestee De Mesa did not abate the proceedings in the
election protest filed against him, and it may be stated as a rule that an election contest survives and
must be prosecuted to final judgment despite the death of the protestee. (In Silverio vs. Castro, 19
SCRA 520 [1967], where the trial court proceeded with the trial of an election protest and decided it
even if the protestee had already died and his Vice-Mayor had assumed office by succession, this
Court, instead of dismissing the appeal brought on behalf of the deceased protestee, required the ViceMayor to intervene on the side of the appellant).
In Lomugdang vs. Javier,[10] this Court declared:
Determination of what candidate has been in fact elected is a matter clothed with public interest,
wherefore, public policy demands that an election contest, duly commenced, be not abated by the death
of the contestant. We have squarely so ruled in Sibulo vda. de Mesa vs. Judge Mencias, G.R. No. L24583, October 26, 1966, in the same spirit that led this Court to hold that the ineligibility of the
protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestees cessation in office
is not a ground for the dismissal of the contest nor detract the Courts jurisdiction to decide the case
(Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584).
In the same Sibulo case, already cited, this Court likewise ruled that by virtue of Section 7, Republic
Act 2264, the vice-mayor elect has the status of a real party in interest in the continuation of the
proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is
unseated, the vice mayor succeeds to the office of mayor that becomes vacant if the duly elected cannot
assume the post.
In Moraleja vs. Relova,[11] this Court ruled:
As to the contention that by accepting such appointment as Technical Assistant, protestant has
abandoned his protest, all that need be said is that once the court has acquired jurisdiction over an
election contest, the public interest involved demands that the true winner be known without regard to
the wishes or acts of the parties, so much so that there can be no default, compromise nor stipulation of
facts in this kind of cases. (Francisco, How To Try Election Cases, p. 163, citing Civilio v. Tomacruz,
62 Phil. 689). In the same manner that the acceptance by the protestee of an appointment to another
position is not a ground for dismissal of the protest (Philippine Law on Elections by Martin, 1970 ed.,
pp. 258-259, citing Calvo v. Maramba, G.R. No. L-13206, January 7, 1918) like the resignation of the
protestee from the contested office (Angeles v. Rodriguez, 46 Phil. 595), simply because it is of public
interest that the real winner be known, neither can the acceptance of a more or less temporary
employment, such as that of a technical assistant of the Vice-Governor, which is a primarily
confidential position, be considered as inconsistent with protestants determination to protect and
pursue the public interest involved in the matter of who is the real choice of the electorate. In such
instances, the plight of protestant may be viewed in the same light as that of an employee who has been
illegally dismissed and who, to find means to support himself and family while he prosecutes his case
for reinstatement, accepts a temporary employment elsewhere. Such employee is not deemed to have
abandoned the position he seeks to recover. (Tan v. Gimenez, et al. G.R. No. L-12525, February 19,
1960, 107 Phil. 17; Potot v. Bagano, G.R. No. L-2456, January 25, 1949, 82 Phil. 679). Of course, the
case of protestant who accepts a permanent appointment to a regular office could be different, but We
are not ruling on it here.
In De Castro vs. Ginete,[12] this Court stated:

The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board
of canvassers is really the lawful choice of the electorate. What is sought in an election protest is the
correction of the canvass of the votes, which is the basis of the proclamation of the winning candidate.
An election contest involves a public office in which the public has an interest. Certainly, the act of a
losing candidate of recognizing the one who is proclaimed the winner should not bar the losing
candidate from questioning the validity of the election of the winner in the manner provided by law.
The factual milieu in these cases is not on all fours with the instant protest.
In Sibulo vda. de De Mesa, as in the later case of Silverio vs. Castro,[13] the protestee had been
proclaimed the winning mayoralty candidate and had assumed office, and then died during the
pendency of the election protest. While in Lomugdang, it was the protestant who died during the
pendency of the protest.
In Moraleja, the election protest survived the protestants acceptance of temporary employment during
the pendency of his election protest. Likewise, in De los Angeles vs. Rodriguez,[14] cited in Sibulo vda.
de De Mesa, an election protest was continued despite the resignation from office of the protestee.
Finally, in De Castro, the only issue presented was whether the protest should be dismissed on the
ground of estoppel. In this proceeding, the protestant congratulated the protestee after the latter was
proclaimed the winner by the board of canvassers and even exhorted those present during the
inauguration and installation into office of the protestee to support the latters administration.
May the above dicta apply to the case of Protestant Santiago who assumed the office of Senator after
her election as such in the 8 May 1995 election? This question was impliedly raised but not resolved in
Moraleja. For after holding that the acceptance by the protestant therein of a temporary appointment
during the pendency of his protest did not amount to an abandonment thereof, nor could it be
considered inconsistent with his determination to protect and pursue the public interest involved in the
election protest, this Court noted: Of course, the case of a protestant who accepts a permanent
appointment to a regular office could be different, but We are not ruling on it here.[15]
Indeed, it would be entirely different where the protestant pursued the new position through a popular
election, as in the case of Protestant Santiago who filed a certificate of candidacy for Senator in the 8
May 1995 election, campaigned for such office, and submitted herself to be voted upon. She knew that
the term of office of the Senators who would then be elected would be six years, to commence at noon
on the thirtieth day of June next following their election[16] and to end at noon of 30 June 2001.
Knowing her high sense of integrity and candor, it is most unlikely that during her campaign, she
promised to serve the electorate as Senator, subject to the outcome of this protest. In short, she filed
her certificate of candidacy for the Senate without any qualification, condition, or reservation.
In so doing, she entered into a political contract with the electorate that if elected, she would assume
the office of Senator, discharge its functions and serve her constituency as such for the term for which
she was elected. These are givens which are in full accord with the principle enshrined in the
Constitution that public office is a public trust, and public officers and employees must at all times be
accountable to the people and serve them with utmost responsibility, integrity, loyalty and efficiency.
[17]

Indeed, it has been aptly said:

It is impossible that government shall be carried on, and the functions of civil society exercised,
without the aid and intervention of public servants or officers, and every person, therefore, who enters
into civil society and avails himself of the benefits and protection of the government, must owe to this
society, or, in other words, to the public, at least a social duty to bear his share of the public burdens, by
accepting and performing, under reasonable circumstances, the duties of those public offices to which
he may be lawfully chosen.[18]
In this jurisdiction, an elected public official may even be held criminally liable should he refuse to
discharge an elective office.[19]
The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of
which coincides with the last three years of the term of the President elected in the 11 May 1992
synchronized elections. The latter would be Protestant Santiagos term if she would succeed in proving
in the instant protest that she was the true winner in the 1992 elections. In assuming the office of
Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in
the language of Moraleja, abandoned her determination to protect and pursue the public interest
involved in the matter of who is the real choice of the electorate. Such abandonment or withdrawal
operates to render moot the instant protest. Moreover, the dismissal of this protest would serve public
interest as it would dissipate the aura of uncertainty as to the results of the 1992 presidential election,
thereby enhancing the all-too crucial political stability of the nation during this period of national
recovery.
It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest
may be summarily dismissed, regardless of the public policy and public interest implications thereof,
on the following grounds:
(1)

The petition is insufficient in form and substance;

(2)

The petition is filed beyond the periods provided in Rules 14 and 15 hereof;

(3)

The filing fee is not paid within the periods provided for in these Rules;

(4)

The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing
of the protest; and

(5)

The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly
legible.[20]

Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a
suppletory character,[21] may likewise be pleaded as affirmative defenses in the answer. After which,
the Tribunal may, in its discretion, hold a preliminary hearing on such grounds.[22] In sum, if an
election protest may be dismissed on technical grounds, then it must be, for a decidedly stronger
reason, if it has become moot due to its abandonment by the Protestant.
II.
There is yet another reason why this case should now be dismissed.

This Tribunal cannot close its eyes to the fact that the Protestant has decided to waive the revision of
the remaining unrevised ballots from 4,017 precincts out of the 17,527 precincts of the designated three
pilot areas. This is an unabashed reversal from her original stand in her Motion and Manifestation
dated 18 October 1993. Taking this into account, this Tribunal declared in its resolution of 21 October
1993:
After deliberating on the foregoing pleadings and the arguments of the parties, the Tribunal rules for
the Protestant insofar as the revision of the remaining ballot boxes from her pilot areas are concerned,
and against the immediate application of Rule 61 of the Rules of the Tribunal to the Protestee in respect
of the Counter-Protest.
At this stage of the proceedings in this case it cannot be reasonably determined whether the revised
ballots are considerable enough to establish a trend either in favor of or against the Protestant as
would justify an appropriate action contemplated in Rule 61 of the Rules of the Tribunal, or whether
the unrevised ballots from said areas would not, in the language of the Protestant, materially affect the
result of the representative sample of the ballot boxes so far revised. As to the 1,300 ballot boxes from
Makati, the proper time to raise the objections to the ballot boxes and its contents would be during the
revision stage.
Consequently, we resolved therein to:
A.
ORDER the revision of the remaining unrevised ballot boxes enumerated in the aforequoted
paragraph A of the 5 October 1993 Resolution and for that purpose to DIRECT the Acting Clerk of
Court of the Tribunal to collect said ballot boxes and other election documents and paraphernalia from
their respective custodians in the event that their revisions in connection with other election protests in
which they are involved have been terminated, and if such revisions are not yet completed, to
coordinate with the appropriate tribunal or court in which such other election protests are pending and
which have already obtained custody of the ballot boxes and started revision with the end in view of
either seeking expeditious revisions in such other election protests or obtaining the custody of the ballot
boxes and related election documents and paraphernalia for their immediate delivery to the Tribunal;
and
B.
REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt hereof, if
after the completion of the revision of the ballots from her pilot areas she would present evidence in
connection therewith.
Until the present, however, the Protestant has not informed the Tribunal whether after the completion
of the revision of the ballots from her pilot areas, she still intends to present evidence in connection
therewith. This failure then, is nothing short of a manifest indication that she no longer intends to do
so.
It is entirely irrelevant at this stage of the proceedings that the Protestants revisors discovered in the
course of the revisions alleged irregularities in 13,510 out of the 17,525 contested precincts in the pilot
areas and have objected to thousands of ballots cast in favor of the Protestee. Revision is merely the
first stage, and not the alpha and omega, of an election contest. In no uncertain terms then, this Tribunal
declared in its resolution of 18 March 1993 that:

Protestant knows only too well, being a lawyer and a former judge herself, that the revision phase of
her protest is but the first stage in the resolution of her electoral protest and that the function of the
revisors is very limited. In her 12 February 1993 Comment on Protestees 5 February 1993 Urgent
Motion for the issuance of a resolution which, inter alia, would clarify that revisors may observe the
objections and/or claims made by the revisors of the other party as welt as the ballots subject thereof,
and record such observations in a form to be provided for that purpose, Protestant unequivocally stated:
8.
Further, the principle and plan of the RPET [Rules of the Presidential Electoral Tribunal] is to
subdivide the entire election contest into various stages. Thus, the first stage is the Revision Proper.
Second is the technical examination if so desired by either party. Third is the reception of evidence.
And Fourth, is the filing of parties memoranda.
and described the function of the revisors as solely to examine and segregate the ballots according to
which ballots they would like to contest or object (contested ballots) and those which they admit or
have no objections (uncontested ballots). Indeed, revisors do not have any judicial discretion; their
duties are merely clerical in nature (Hontiveros vs. Altavas, 24 Phil. 632 [1913]). In fact, their opinion
or decision on the more crucial or critical matter of what ballots are to be contested or not does not
even bind the Tribunal (Yalung vs. Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168
[1929]). Thus, no undue importance may be given to the revision phase of an election contest. It can
never serve as a logical or an acceptable basis for the conclusion that massive fraud or irregularities
were committed during an election or that a Protestant had won in said election. If that were so, a
Protestant may contest all ballot boxes and, in the course of the revision thereof, object - for any
imagined ground whatsoever, even if the same be totally unfounded and ridiculous - to all ballots
credited to the Protestee; and then, at the end of the day, said Protestant may even announce to the
whole world that contrary to what is reflected in the election returns, Protestee had actually lost the
elections.
All told, a dismissal of this election protest is inevitable.
III.
However, three Members of the Tribunal outrightly disagree with the foregoing disquisitions. Hence, a
reply to the important points they raise is in order.
Mr. Justice Punos perception that the majority would dismiss this election protest as moot and
academic on two (2) grounds: first, that the findings of irregularities made by the revisors of the
protestant in the course of the revision of ballots in 13,510 contested precincts are entirely irrelevant;
and second, she abandoned her protest when she filed her certificate of candidacy in the 8 May 1995
senatorial elections, is inaccurate. The dispositive portion of this resolution leaves no room for any
doubt or miscomprehension that the dismissal is based on the ground that the protest has been
rendered moot and academic by its abandonment or withdrawal by the Protestant as a consequence of
her election and assumption of office as Senator and her discharge of the duties and functions
thereof. There is, therefore, ONLY ONE reason or ground why the protest has been rendered moot
and academic, i.e., it has been abandoned or withdrawn. This was the very issue upon which the parties
were required, in the resolution of 26 September 1995, to submit their respective memoranda.
The majority neither conveyed, asserted nor even suggested, as Mr. Justice Puno has apparently
understood, that this protest has become moot and academic because the finding of irregularities by the

Protestants revisors in the course of the revision of the ballots in 13,510 contested precincts in the pilot
areas are entirely irrelevant, and that the Protestant has abandoned this protest by filing a certificate
of candidacy for the office of Senator in the 8 May 1995 elections. The majoritys views on
irrelevancy and on the filing of the certificate of candidacy are not the grounds themselves, but
parts only of the arguments to strengthen the conclusion reached, i.e., abandonment. Otherwise stated,
in order to make the point crystal clear, the majority never held that the irrelevancy of the finding of
irregularities is a ground why this protest has become moot and academic. It only declared that the
Protestants: (a) waiver of revision of the unrevised ballots from the remaining 4,017 contested
precincts in the pilot areas; and (b) failure to comply with the resolution of 21 October 1995 requiring
her to inform the Tribunal within ten days from notice if she would still present evidence after
completion of the revision of the ballots from her pilot areas - rendered such findings of irregularities
entirely irrelevant considering the Tribunals disquisitions on what revision is in its 18 March 1993
resolution.
In his dissent, Mr. Justice Puno lifted the words entirely irrelevant from the fourth paragraph under
the heading II of this Resolution. It must, however, be stressed that the said paragraph is inexorably
linked to the preceding two paragraphs relating to the above-mentioned waiver and non-compliance,
which provide the major premises for the fourth paragraph; more concretely, the latter is nothing more
than the logical conclusion which the major premises support.
The reasons adduced by Mr. Justice Puno for the Protestants turn-around are mere speculations. In any
event, the Protestants possible belief that the contested ballots in 13,500 precincts when properly
appreciated will sufficiently establish her electoral victory, cannot stand against her previous
insistence to proceed with the revision of the remaining unrevised ballots and the aforementioned
finding of the Tribunal in its resolution of 21 October 1993. The Tribunal is not to blame for the slow
pace of the protest, if at all she so believes in such a state of things. Neither can the thought of cutting
costs be a valid reason. The Protestant knew from the outset that the revision of the ballots in the pilot
areas was a crucial phase of this protest because, under Rule 61 of the Rules of the Tribunal, the protest
could forthwith be dismissed if the Tribunal were convinced that she would probably fail to make out a
case but only after examination of the ballots from the pilot areas and the evaluation of the evidence
offered in connection therewith. It goes without saying that every ballot then in the pilot areas counts.
Then too, it was never the view of the majority that the Protestants filing of the certificate of
candidacy for a seat in the Senate in the 8 May 1995 election was the sole and exclusive operative act
for what Mr. Justice Puno perceives to be the majoritys second ground why this protest has become
moot and academic. To the majority, such filing was only the initial step in a series of acts performed
by the Protestant to convincingly evince her abandonment of this protest, viz., campaigning for the
office of Senator, assumption of such office after her election, and her discharge of the duties and
functions of the said office. Precisely, in the resolution of 26 September 1995, this Court directed the
Protestant and the Protestee to submit their respective memoranda on the issue.
[o]f whether or not the protest has not been rendered moot and academic by the election of the
Protestant as Senator and her subsequent assumption of office as such on 30 June 1995. (italics
supplied)
As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite Blacks Law
Dictionary and the cases of Roebuck vs. Mecosta Country Road Commission,[23] Dober vs. Ukase Inv.
Co.,[24] and McCall vs. Cull,[25] cited therein. We have turned to the primary sources of these cases,

meticulously perused them, and found none materially significant to this protest.
The first two cases above refer to abandonment of property. Roebuck involved the issue of whether a
roadway had been abandoned by the Mecosta Road Commission. The Court therein held that in order
for there to be an abandonment of land dedicated to public use, two elements must concur, viz., (a)
intention to relinquish the right or property, but without intending to transfer title to any particular
person; and (b) the external act which such intention is carried into effect. While Dober, on the issue of
whether the plaintiff therein abandoned a certain property, quoted Corpus Juris that the intention to
abandon must be determined from the facts and circumstances of the case. There must be a clear,
unequivocal and decisive act of the party to constitute abandonment in respect of a right secured - an
act done which shows a determination in the individual not to have a benefit which is designed for him.
It is, of course, settled that a public office is not deemed property.[26]
Only McCall involved the issue of abandonment of office. It is stated therein as follows:
Abandonment is a matter of intention and, when thought of in connection with an office, implies that
the occupant has quit the office and ceased to perform its duties. As long as he continues to discharge
the duties of the office, even though his source of title is two appointments, one valid and the other
invalid, it cannot be said he has abandoned it. It was said in Steingruber v. City of San Antonio, Tex.
Corn. App., 220 S.W. 77, 78: A public office may be abandoned. Abandonment is a species of
resignation. Resignation and abandonment are voluntary acts. The former is a formal relinquishment;
the latter a relinquishment through non-user. Abandonment implies non-user, but non-user does not, of
itself, constitute abandonment. The failure to perform the duties pertaining to the office must be with
actual or imputed intention on the part of the officer to abandon and relinquish the office. The
intention may be inferred from the acts and conduct of the party, and is a question of fact.
Abandonment may result from an acquiescence by the officer in his wrongful removal or discharge,
but, as in other cases of abandonment, the question of intention is involved.
Strictly speaking, McCall is inapplicable to this protest for, as correctly stated in the dissent of Mr.
Justice Kapunan, the Protestant could not abandon the office of President which she was not holding at
the time she filed the certificate of candidacy for Senator. But the majority of the Tribunal never
declared, nor even implied, that she abandoned the office of President because it knew that she had yet
nothing to abandon. Precisely, she filed this protest to be declared the winner for that office, to
thereafter assume and perform the duties thereof, and exercise the powers appertaining thereto. What
the Tribunal explicitly states is that the Protestant abandoned this Protest, thereby rendering this
protest moot.
Mr. Justice Puno also insists that abandonment raises a question of fact and that the Tribunal cannot
resolve it for lack of competent evidence; moreover, he notes that the Protestee has not adduced
evidence which can be the basis for a finding that she intentionally abandoned her protest; on the
contrary, the Protestee does not want the protest to be dismissed on a technicality but prays that it be
decided on the merits. Suffice it to say that the Protestant herself has not denied nor questioned the
following facts, which by themselves, constitute overwhelming proof of the intention to abandon the
protest:
(a)

Filling of a certificate of candidacy for Senator for the 8 May 1995 elections;

(b)

Campaigning for the office of Senator in such election,

(c)

Taking her oath of office as Senator upon the commencement of the term therefor;

(d)

Assumption of office as Senator; and

(e)

Discharge and performance of the duties appertaining to the office of Senator.

These acts speak for themselves - res ipsa loquitur - to negate any proposition that the Protestant has
not abandoned this protest.
Thus, what initially appears to be the correct view in the dissent is, in the final analysis, misplaced.
This must also be the verdict upon the following pronouncements of Mr. Justice Puno:
A more fundamental reason prevents me from joining the majority. With due respect, I submit that the
majority ruling on abandonment is inconsistent with the doctrine that an election contest is concerned
less with the private interest of the candidates but more with public interest. Under a republican regime
of government, the overarching object of an election contest is to seek and enforce the judgment of the
people on who should govern them. It is not a happenstance that the first declaration of policy of our
Constitution underlines in bright that sovereignty resides in the people and all government authority
emanates from them. The first duty of a citizen as a particle of sovereignty in a democracy is to
exercise his sovereignty just as the first duty of any reigning government is to uphold the sovereignty
of the people at all cost. Thus, in Moraleja vs. Relova, we emphatically held that x x x once the court
has acquired jurisdiction over an election contest, the public interest involved demands that the true
winner be known without regard to the wishes or acts of the parties so much so that there can be no
default, compromise nor stipulation of facts in this kind of cases. Wisely, this Tribunal has
consistently demurred from dismissing election contests even on the ground of death of the protestee or
the protestant.
The majority appears to stray away from this lodestar of our Constitution. It will dismiss the case at
bar even while the protestee and the protestant are yet alive, even while the term of the 1992 presidentelect has yet to expire, and even while the protestee and the protestant together plead that the Tribunal
should determine the true will of the people by deciding their dispute on the merit[s] and not on
technicalities that trifle with the truth. I submit that it is the better stance for the Tribunal to decide this
election contest on the merit[s] and vindicate the political judgment of the people which far surpasses
in significance all other considerations. Our duty to tell the people who have the right to govern them
cannot depend on the uncertain oscillations of politics of the litigants as often times they are directed
by the wind of convenience, and not by the weal of the public.
For one, the majority has, in no uncertain terms. demonstrated the dissimilarities in the factual settings
of the instant protest vis-a-vis the earlier cases that enunciated the doctrine relied on by Mr. Justice
Puno. Then, too, it must be reiterated, to avoid further miscomprehension, that the Moraleja ruling
even conceded that the matter of abandonment could be different if the petitioner therein had
accepted a permanent appointment to a regular office during the pendency of his protest. In short,
Moraleja in fact intimates abandonment of an election protest if, in the meantime, the Protestant
accepts a permanent appointment to a regular office. If that be so, then would it be, and for weightier
reasons, against a protestant who voluntarily sought election to an office whose term would extend
beyond the expiry date of the term of the contested office, and after winning the said election, took her

oath and assumed office and thereafter continuously serves it.

In Moraleja, the Supreme Court was meticulous in excluding abandonment from the enumeration of
specific acts or wishes of the parties which must he disregarded because of the public interest
component of an election protest. As reflected in the above quotation from Mr. Justice Punos dissent,
only default, compromise, or stipulation of facts are included.
Finally, with all due respect, the above pronouncement of Mr. Justice Puno forgets that, as distinctly
pointed out in the early part of this Resolution, the Rules of the Tribunal allow summary dismissal of
election protests even for less important grounds, to repeat, such as the petition filed with the Tribunal
or the annexes attached thereto are not clearly legible, or the filing fees and cash deposits were not filed
within the periods fixed in the Rules,[27] and the additional provision for dismissal under Rule 61. All
these provisions of the Rules would then be put to naught or, at the very least, modified or amended in
a way not authorized by the Rules, if the theory of. Mr. Justice Puno be accepted. Such theory would
unreasonably bind the Tribunal to the technical minutiae of trial on the merits to bring to their ultimate
end all protests or contests filed before it - including those filed by candidates who even forgot to vote
for themselves and obtained no votes in the final count, but, unable to accept defeat, filed a protest
claiming massive fraud and irregularities, vote-buying, and terrorism. Consequently, all the time and
energy of the Justices of the Supreme Court would be spent appreciating millions of revised ballots to
the prejudice of their regular judicial functions in the Court, as, the electoral protest of every Juan,
Pedro, and Jose who lost in the presidential elections would have to be heard on the merits. Public
policy abhors such a scenario and no public good stands to be thereby served.
WHEREFORE, the Tribunal hereby resolved to
(1)
GRANT the Protestants Motion of 16 August 1995 to dispense with the revision of ballots and
other election documents in the remaining precincts of the pilot areas:
(2)
DISMISS the instant election protest, since it has been rendered moot and academic by its
abandonment or withdrawal by the Protestant as a consequence of her election and assumption of office
as Senator and her discharge of the duties and functions thereof; and
(3)

DISMISS, as a consequence, the Protestees Counter-Protest.

No pronouncements as to costs.
SO ORDERED.

THIRD DIVISION
[G.R. No. 118883. January 16, 1998]

SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE

MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO, petitioner, vs. COURT OF
APPEALS and AUGUSTO T. ANTONIO, respondents.
DECISION
PANGANIBAN, J.:
Although a resignation is not complete without an acceptance thereof by the proper authority,
an office may still be deemed relinquished through voluntary abandonment which needs no
acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of the
Decision[1] of the Court of Appeals[2] promulgated on January 31, 1995 in CA-G.R. SP No.
34158, which modified the Decision dated February 18, 1994 of the Regional Trial Court [3] of
Virac, Catanduanes, Branch 42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:
WHEREFORE, the judgment appealed from is hereby MODIFIED such that paragraphs 1, 2
and 4 thereof are deleted. Paragraph 3 is AFFIRMED. No pronouncement as to costs. [4]
Antecedent Facts
Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay, San
Andres, Catanduanes in March 1989. He was later elected president of the Association of
Barangay Councils (ABC)[5] for the Municipality of San Andres, Catanduanes. In that capacity
and pursuant to the Local Government Code of 1983, he was appointed by the President as
member of the Sangguniang Bayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local
Government (DILG) declared the election for the president of the Federation of the
Association of Barangay Councils (FABC) of the same province, in which private respondent
was a voting member, void for want of a quorum. Hence, a reorganization of the provincial
council became necessary. Conformably, the DILG secretary designated private respondent
as a temporary member of the Sangguniang Panlalawigan of the Province of Catanduanes,
effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the Sangguniang
Bayan. He tendered his resignation[6] dated June 14, 1990 to Mayor Lydia T. Romano of San
Andres, Catanduanes, with copies furnished to the provincial governor, the DILG and the
municipal treasurer. Pursuant to Section 50 of the 1983 Local Government Code [7] (B.P. Blg.
337), Nenito F. Aquino, then vice-president of the ABC, was subsequently appointed by the
provincial governor as member of the Sangguniang Bayan [8] in place of private respondent.
Aquino assumed office on July 18, 1990 after taking his oath. [9]

Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC
president was reversed by the Supreme Court in Taule vs. Santos. [10] In the same case, the
appointment of Private Respondent Antonio as sectoral representative to the Sangguniang
Panlalawigan was declared void, because he did not possess the basic qualification that he
should be president of the federation of barangay councils. [11] This ruling of the Court became
final and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of
San Andres advising them of his re-assumption of his original position, duties and
responsibilities as sectoral representative[12] therein. In response thereto, the Sanggunian
issued Resolution No. 6, Series of 1992, declaring that Antonio had no legal basis to resume
office as a member of the Sangguniang Bayan. [13]
On August 13, 1992, private respondent sought from the DILG a definite ruling relative to his
right to resume his office as member of the Sangguniang Bayan. [14] Director Jacob F.
Montesa, department legal counsel of the DILG, clarified Antonios status in this wise:
Having been elected President of the ABC in accordance with the Departments
Memorandum Circular No. 89-09,[15] you became an ex-officio member in the sanggunian.
Such position has not been vacated inasmuch as you did not resign nor abandon said office
when you were designated as temporary representative of the Federation to the Sangguniang
Panlalawigan of Catanduanes on June 7, 1990. The Supreme Court in Triste vs. Leyte State
College Board of Trustees (192 SCRA 327), declared that: designation implies
temporariness. Thus, to designate a public officer to another position may mean to vest him
with additional duties while he performs the functions of his permanent office. In some cases,
a public officer may be designated to a position in an acting capacity as when an
undersecretary is designated to discharge the functions of the Secretary pending the
appointment of a permanent Secretary.
Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations
Implementing the 1991 Local Government Code to continue to act as president of the
association and to serve as ex-officio members of the sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep. Act No.
7160, provides that:
The incumbent presidents of the municipal, city and provincial chapters of the liga shall
continue to serve as ex-officio members of the sanggunian concerned until the expiration of
their term of office, unless sooner removed for cause.
(f) x x x Pending election of the presidents of the municipal, city, provincial and metropolitan
chapters of the liga, the incumbent presidents of the association of barangay councils in the
municipality, city, province and Metropolitan Manila, shall continue to act as president of the
corresponding liga chapters under this Rule.
In view of the foregoing, considering that the annuled designation is only an additional duty to
your primary function, which is the ABC President, we find no legal obstacle if you re-assume
your representation in the sanggunian bayan as ex-officio member.[16]

Despite this clarification, the local legislative body issued another resolution [17] reiterating its
previous stand.
In response to private respondents request, [18] Director Montesa opined that Antonio did not
relinquish or abandon his office; and that since he was the duly elected ABC president, he
could re-assume his position in the Sanggunian. [19] A copy of said reply was sent to the
members of the local legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to
re-assume office as sectoral representative.
On December 10, 1992, private respondent filed a petition for certiorari and mandamus with
preliminary mandatory injunction and/or restraining order before the RTC. On February 18,
1994, the trial court rendered its decision holding that Augusto T. Antonios resignation from
the Sangguniang Bayan was ineffective and inoperative, since there was no acceptance
thereof by the proper authorities. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the
petitioner and against the respondents and ordering the latter:
(1)

to pay the petitioner jointly and severally the amount of P10,000.00 as attorneys
fees and the cost of the suit;

(2)

to allow petitioner to assume his position as sectoral representative of the

Sangguniang Bayan of San Andres, Catanduanes;

(3)

to pay the petitioner jointly and severally his uncollected salaries similar to those
received by the other members of the Sangguniang Bayan of San Andres,
Catanduanes as certified to by the Municipal Budget Officer and Municipal
Treasurer of the same municipality from April 8, 1992 up to the date of this
judgment; and

(4)

declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no
effect.[20]

Petitioners appealed this judgment to the Court of Appeals.

Appellate Courts Ruling
Respondent Court of Appeals affirmed the trial courts ruling but deleted the first, second and
fourth paragraphs of its dispositive portion. It held that private respondents resignation was
not accepted by the proper authority, who is the President of the Philippines. While the old
Local Government Code is silent as to who should accept and act on the resignation of any
member of the Sanggunian, the law vests in the President the power to appoint members of
the local legislative unit. Thus, resignations must be addressed to and accepted by him. It
added that, though the secretary of the DILG is the alter ego of the President and notice to
him may be considered notice to the President, the records are bereft of any evidence
showing that the DILG secretary received and accepted the resignation letter of Antonio.

Moreover, granting that there was complete and effective resignation, private respondent was
still the president of the ABC and, as such, he was qualified to sit in the Sangguniang Bayan
in an ex officio capacity by virtue of Section 494[21] of R.A. 7160[22] and Memorandum Circular
No. 92-38.[23] In view, however, of the May 1994 elections in which a new set of barangay
officials was elected, Antonios reassumption of office as barangay representative to the
Sangguniang Bayan was no longer legally feasible.
The appellate court added that private respondent could not be considered to have
abandoned his office. His designation as member of the Sangguniang Panlalawigan was
merely temporary and not incompatible with his position as president of the ABC of San
Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorneys fees for being without basis, and
held that Resolution Nos. 6 and 28 of the Sangguniang Bayan of San Andres involved a valid
exercise of the powers of said local body. It thus modified the trial courts judgment by
affirming paragraph 3 and deleting the other items. Unsatisfied, petitioners brought the
present recourse.[24]
Issues
The petitioner, in its memorandum,[25] submits before this Court the following issues:
I. Whether or not respondents resignation as ex-officio member of Petitioner Sangguniang
Bayan ng San Andres, Catanduanes is deemed complete so as to terminate his official
relation thereto;
II.
Whether or not respondent had totally abandoned his ex-officio membership in
Petitioner Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries similar to those received by other
members of Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this
case by the Regional Trial Court of Virac, Catanduanes. [26]
In sum, was there a complete and effective resignation? If not, was there an abandonment of
office?
This Courts Ruling
The petition is meritorious. Although the terms of office of barangay captains, including
private respondent, elected in March 1989 have expired, the Court deemed it necessary to
resolve this case, as the Court of Appeals had ordered the payment of the uncollected
salaries allegedly due prior to the expiration of Respondent Antonios term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid and effective
despite the absence of an express acceptance by the President of the Philippines. The letter

of resignation was submitted to the secretary of the DILG, an alter ego of the President, the
appointing authority. The acceptance of respondents resignation may be inferred from the
fact that the DILG secretary himself appointed him a member of the Sangguniang
Panlalawigan of Catanduanes.[27]
In Ortiz vs. COMELEC,[28] we defined resignation as the act of giving up or the act of an
officer by which he declines his office and renounces the further right to use it. It is an
expression of the incumbent in some form, express or implied, of the intention to surrender,
renounce, and relinquish the office and the acceptance by competent and lawful authority.
To constitute a complete and operative resignation from public office, there must be: (a) an
intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance
by the proper authority.[29] The last one is required by reason of Article 238 of the Revised
Penal Code.[30]
The records are bereft of any evidence that private respondents resignation was accepted by
the proper authority. From the time that he was elected as punong barangay up to the time
he resigned as a member of Sangguniang Bayan, the governing law was B.P. 337 or the
Local Government Code of 1983. While said law was silent as to who specifically should
accept the resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule
XIX of its implementing rules states that the [r]esignation of sanggunian members shall be
acted upon by the sanggunian concerned, and a copy of the action taken shall be furnished
the official responsible for appointing a replacement and the Ministry of Local Government.
The position shall be deemed vacated only upon acceptance of the resignation.
It is not disputed that private respondents resignation letter was addressed only to the
municipal mayor of San Andres, Catanduanes. It is indicated thereon that copies were
furnished the provincial governor, the municipal treasurer and the DILG. Neither the mayor
nor the officers who had been furnished copies of said letter expressly acted on it. On
hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and
applicable, the mayor should have referred or endorsed the latter to the Sangguniang Bayan
for proper action. In any event, there is no evidence that the resignation was accepted by any
government functionary or office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative body of the
municipality and shall be composed of the municipal mayor, who shall be the presiding officer,
the vice-mayor, who shall be the presiding officer pro tempore, eight members elected at
large, and the members appointed by the President consisting of the president of the
katipunang bayan and the president of the kabataang barangay municipal federation. x x x.
(Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory provisions as to
whom they should be submitted, should be tendered to the appointing person or body. [31]
Private respondent, therefore, should have submitted his letter of resignation to the President
or to his alter ego, the DILG secretary. Although he supposedly furnished the latter a copy of
his letter, there is no showing that it was duly received, much less, that it was acted upon.
The third requisite being absent, there was therefore no valid and complete resignation.

Second Issue: Abandonment of Office

While we agree with Respondent Court that the resignation was not valid absent any
acceptance thereof by the proper authority, we nonetheless hold that Private Respondent
Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his
voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an office by
the holder, with the intention of terminating his possession and control thereof. [32] Indeed,
abandonment of office is a species of resignation; while resignation in general is a formal
relinquishment, abandonment is a voluntary relinquishment through nonuser. [33] Nonuser
refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to
exercise an easement or an office (Blacks Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of choice. [34] Its
concomitant effect is that the former holder of an office can no longer legally repossess it
even by forcible reoccupancy.[35]
Clear intention to abandon should be manifested by the officer concerned. Such intention
may be express or inferred from his own conduct. [36] Thus, the failure to perform the duties
pertaining to the office must be with the officers actual or imputed intention to abandon and
relinquish the office.[37] Abandonment of an office is not wholly a matter of intention; it results
from a complete abandonment of duties of such a continuance that the law will infer a
relinquishment.[38] Therefore, there are two essential elements of abandonment: first, an
intention to abandon and, second, an overt or external act by which the intention is carried
into effect. [39]
Petitioner argues that the following clearly demonstrate private respondents abandonment of
his post in the Sangguniang Bayan:
Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of
Catanduanes was worded temporary, but his acts more than clearly established his intention
to totally abandon his office, indicating an absolute relinquishment thereof. It bears to
emphasize that respondent actually tendered his resignation and subsequently accepted an
ex-officio membership in the Sangguniang Panlalawigan of Catanduanes. He performed his
duties and functions of said office for almost two (2) years, and was completely aware of the
appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then VicePresident of the Association of Barangay Councils (ABC) of San Andres, Catanduanes, as
ex-officio member of petitioner Sangguniang Bayan representing the ABC.
xxx xxx xxx
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed
respondents former position for twenty (20) months, without him questioning the term of
office of the former if indeed respondents designation as ex-officio member of the
Sangguniang Panlalawigan was only temporary. Likewise, for almost eight (8) months after
knowledge of the decision in Taule vs. Santos, et. al., Ibid., nullifying his designation as
representative to the Sangguniang Panlalawigan, respondent opted to remain silent, and in

fact failed to seasonably act for the purpose of reassuming his former position. Evidently,
respondent had clearly abandoned his former position by voluntary relinquishment of his
office through non-user.[40] [Underscoring supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention of private
respondent to abandon his position: (1) his failure to perform his function as member of the
Sangguniang Bayan, (2) his failure to collect the corresponding remuneration for the position,
(3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang
Bayan, (4) his prolonged failure to initiate any act to reassume his post in the Sangguniang
Bayan after the Supreme Court had nullified his designation to the Sangguniang
Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his intention: (1)
his letter of resignation from the Sangguniang Bayan; [41] (2) his assumption of office as
member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties and
functions as member of said Sanggunian, and (4) his receipt of the remuneration for such
post.
It must be stressed that when an officer is designated to another post, he is usually called
upon to discharge duties in addition to his regular responsibilities. Indeed, his additional
responsibilities are prescribed by law to inhere, as it were, to his original position. A Supreme
Court justice, for instance, may be designated member of the House of Representatives
Electoral Tribunal. In some cases, a public officer may be designated to a position in an
acting capacity, as when an undersecretary is tasked to discharge the functions of a secretary
for a temporary period.[42] In all cases, however, the law does not require the public servant to
resign from his original post. Rather, the law allows him to concurrently discharge the
functions of both offices.
Private respondent, however, did not simultaneously discharge the duties and obligations of
both positions. Neither did he, at that time, express an intention to resume his office as
member of the Sangguniang Bayan. His overt acts, silence, inaction and acquiescence,
when Aquino succeeded him to his original position, show that Antonio had abandoned the
contested office. His immediate and natural reaction upon Aquinos appointment should have
been to object or, failing to do that, to file appropriate legal action or proceeding. But he did
neither. It is significant that he expressed his intention to resume office only on March 31,
1992, after Aquino had been deemed resigned on March 23, 1992, and months after this
Court had nullified his designation on August 12, 1991. From his passivity, he is deemed to
have recognized the validity of Aquinos appointment and the latters discharge of his duties
as a member of the Sangguniang Bayan.
In all, private respondents failure to promptly assert his alleged right implies his loss of
interest in the position. His overt acts plainly show that he really meant his resignation and
understood its effects. As pointed out by the eminent American commentator, Mechem: [43]
Public offices are held upon the implied condition that the officer will diligently and faithfully
execute the duties belonging to them, and while a temporary or accidental failure to perform
them in a single instance or during a short period will not operate as an abandonment, yet if
the officer refuses or neglects to exercise the functions of the office for so long a period as to

reasonably warrant the presumption that he does not desire or intend to perform the duties of
the office at all, he will be held to have abandoned it, not only when his refusal to perform was
wilful, but also where, while he intended to vacate the office, it was because he in good faith
but mistakenly supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal right to be a
member of the Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337. However, his
right thereto is not self-executory, for the law itself requires another positive act -- an
appointment by the President or the secretary of local government per E.O. 342. [44] What
private respondent could have done in order to be able to reassume his post after Aquinos
resignation was to seek a reappointment from the President or the secretary of local
government. By and large, private respondent cannot claim an absolute right to the office
which, by his own actuations, he is deemed to have relinquished. [45]
We reiterate our ruling in Aparri vs. Court of Appeals:

[46]

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 x x x. 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 x x x. 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 x x x.
Third Issue: Salary
Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang
Bayan, he cannot be entitled to any back salaries. Basic is the no work, no pay [47] rule. A
public officer is entitled to receive compensation for services actually rendered for as long as
he has the right to the office being claimed. [48] When the act or conduct of a public servant
constitutes a relinquishment of his office, he has no right to receive any salary incident to the
office he had abandoned.[49]
WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and SET
ASIDE. No costs.
SO ORDERED.
EN BANC
DECISION
April 9, 1987

G.R. No. 70953

EMILIE J. QUEZON, petitioner,
vs.
HON. JESUS N. BORROMEO, in his capacity as Chairman, Civil Service Commission, joined
by ALEJANDRO A. MADAMBA, and MARIO D. YANGCO, in their official capacities as
Commissioners of the Civil Service Commission; ALFREDO B. DEZA, in his capacity as
Commissioner, Merit Systems Board, Civil Service Commission; RAYMUNDO B. VILLONES
and BELLA A. AMILHASAN, in their capacities as Associate Commissioners, Merit Systems
Board, Civil Service Commission; and DR. ORLANDO B. ALAGAR in his capacity as Chief of I
Iligan City Hospital, I Iligan City, respondents.
Arturo A. Cabides for petitioner.
Feliciano, J.:
In this petition for certiorari, petitioner seeks the annulment of Resolution No. 85-015 dated 14
February 1985 of the Civil Service Conmmission; she also seeks reinstatement in the government
service as Chief Nurse in the Iligan City Hospital, Regional Health Office No. 12.
In 1977, petitioner Emilie J. Quezon was a Chief Nurse II of the Iligan City Hospital. By Department
Order No. 125-A, s. 1977, dated 25 April 1977, the Secretary of Health authorized petitioner to go on a
special study detail to take up or complete a degree course in nursing (BSN) during the academic year
1977-1978, for a period of not more than 12 months. Department Order No. 125-A expressly provided,
among other things, that Mrs. Quezon "shall not be allowed any extension of the twelve (1 2) months
study grant." 1 On 1 June 1977, petitioner availed of the one-year special study detail and went on
study leave.
On 10 February 1978, she requested a one-year extension of her study leave, counted from the expiry
date of her original study leave (i.e., from 31 May 1978). Notwithstanding the provisions of
Department Order No. 125-A, petitioner's request was approved by the Chief of the Iligan City
Hospital in his second indorsement dated 27 February 1978, and approved as well by the Chief of the
Office of Health Education and Personnel Training, Department of Health, subject to the following
conditions:
1) The Hospital will no longer pay petitioner's training allowance at the rate of P 300 a month;
2) The Hospital will pay Mrs. Quezon's salary up to the extent of her leave credits;
3) Mrs. Quezon will continue her studies at her own personal expense and will be on leave without pay
after her accumulated leave credits shall have been used. 2
As of 1 June 1978, petitioner's accumulated leave credits amounted to 19.7 days of vacation leave and
26.8 days of sick leave, which leave credits were consumed or utilized by 18 July 1978.
On 9 May 1979, she requested a second extension of her original study leave of an additional seven
months, counted from expiration of her first extension, i.e., from 31 May 1979 to 31 December 1979.
The Chief of the Iligan City Hospital forwarded her request for a second extension to the Regional
Director of Regional Health Office No. 12, inviting attention to the first extension which had been

approved and went on to state that:

Apparently [Mrs. Quezon], now pursuing her masters degree in public administration, a course which
is not stipulated in said Department Order [125-A] for which she was granted special study detail.
It may be worthy [of] note that her services is (sic) urgently needed and any further extension would be
detrimental to the hospital service.
Notwithstanding the above comment, petitioner's request for a second extension of seven months was
apparently approved, presumably by the Regional Director of Regional Health Of- fice No.12. 3 In any
case, she continued to stay away from her post at the Iligan City Hospital.
Petitioner then sought a third extension of leave, this time for five months or up to May 1980. No
action thereon was taken by the authorities of the Iligan City Hospital nor by the Regional Health
Office No. 12. Notwithstanding this lack of approval, petitioner remained on leave or, more precisely,
did rot report back for work. Instead, on 24 June 1980, she submitted a request for a fourth extension of
her leave for twelve months, or from July 1980 to June 1981. By a fourth indorsement dated 5 January
1981, the Regional Director of Regional Office No. 12 disapproved the petitioner's request for a fourth
extension, stating that:
The continuous leave of absence of Mrs. Quezon is in violation of Section 33, Rule XVI of Civil
Service Rules, which states: ...
It is, therefore, understood that since Mrs. Quezon has been on leave without pay for the past three (3)
years, any application for extension of the same shall no more (sic) be granted by this office. (Emphasis
supplied)
A few months earlier, on 27 October 1980, the Regional Health Director had issued an appointment to
Lourdes Crisol as acting Chief Nurse II, Iligan City Hospital "vice Emilie Quezon, dropped from the
service." On 1 July 1981, the Regional Health Director issued another appointment to Lourdes Crisol,
this time as Chief Nurse II, "vice Emilie Quezon, dropped." The second appointment of Lourdes Crisol
was approved as a permanent one by the Civil Service Regional Office No. 12, subject to the condition,
among others, "that the separation/promotion/resignation of the former incumbent [was] in order."
On 6 March, 1982, four years and nine months after she first went on study leave, and two years and
two months after expiration of her last approved leave extension, petitioner reported for duty at the
Iligan City Hospital. There, she was informed that she had been dropped from the government service.
By a letter dated 8 March 1982 to the Regional Director of Civil Service Regional Office No. 12,
petitioner questioned her being dropped from the service. The Regional Director of CSRO No. 12
referred petitioner's letter to the Regional Health Director. The Regional Health Director in tum
explained that because petitioner, in violation of Civil Service Rules, failed to report back for duty after
completion of her Bachelor of Science in Nursing (BSN) course and to file leave applications, she was
considered absent without leave (AWOL) "up to 1981 " and that it had become necessary to designate
an acting Chief Nurse at the Iligan City Hospital.
On 16 March 1982, and again on 3 May 1982, petitioner asked the Civil Service Regional Director for
reinstatement. Petitioner's request was forwarded by the CSRO No. 12 to the Civil Service Merit
Systems Board for appropriate action.

Initially, the Merit Systems Board found the request of petitioner meritorious and on 22 February 1983,
directed her reinstatement as Chief Nurse II in the Iligan City Hospital. On 16 May 1983, however, the
Director of the Regional Health Office No. 12 moved for reconsideration. By a decision dated 30 July
1984, the Merit Systems Board reconsidered and set aside its previous decision and held that the
"dropping from the rolls [of Mrs, Quezon] [was] in order." The Board noted that no requests for leave
of absence had been filed by Mrs. Quezon in respect of the extensions of her leave, certainly after the
second extension, and that no approvals had been given for such subsequent extensions of leave. In
effect, the Board considered Mrs. Quezon as "being absent without leave [AWOL]. 4
The petitioner appealed to the Civil Service Commission. On 14 February 1985, the Civil Service
Commission dismissed the appeal and affirmed the 30 July 1984 decision of the Merit Systems Board.
It is this decision of the Civil Service Commission that petitioner seeks to set aside and annul in the
present petition for certiorari.
Petitioner asserts two principal grounds for annulment or reversal of the decision of the Civil Service
Commission. Firstly, petitioner asserts that the decision of the Merit Systems Board dated 22 February
1983 had already become final and executory when the motion for reconsideration dated 16 May 1983
was filed by the Regional Health Office, Region 12, through counsel, and that the Merit Systems Board
had lost jurisdiction over the case with the supposed result that the subsequent decision of the Merit
Systems Board dated 30 July 1984 was null and void. Petitioner asserts, secondly, that she was denied
her right to procedural due process.
We consider these grounds seriatim.
Turning to the first ground, petitioner claims that the 22 February 1983 decision of the Merit Systems
Board was actually received by the Civil Service Regional Office, Region 12, Cotabato City, on 1
March 1983 and that a copy of the said decision was actually received by the Chief of the Iligan City
Hospital on 15 March 1983. Petitioner concludes that the motion for reconsideration filed by the
Regional Health Director dated 16 May 1983 was filed 84 or more days after receipt of the decision by
the Chief of the I Iligan City Hospital.
Section 39 of Presidential Decree No. 807, dated 6 October 1975 (the "Civil Service Decree of the
Philippines") reads as follows:
SECTION 39. Appeals.-(a) Appeals, where allowable, shall be made by the party adversely affected by
the decision within fifteen (15) days from receipt of the decision unless a petition for reconsideration is
seasonably filed, which petition shall be decided within fifteen (15) days. Notice of the appeal shall be
filed with the disciplining office, which shall forward the records of the case, together with the notice
of appeal to the appellate authority within fifteen (15) days from filing of the notice of appeal with its
comment, if any. The notice of appeal shall specifically state the date of the decision appealed from the
date of receipt thereol It shall also specifically set forth clearly the grounds relied upon for excepting
from the decision.
(b) A petition for reconsideration shall be based only on any of the following grounds: (1) new
evidence has been discovered which materially affects the decision rendered; (2) the decision is not
supported by the evidence on record; or (3) errors of law or irregularities have been committed
prejudicial to the interest of the respondent: Provided, That only one petition for reconsideration shall
be entertained, " (Emphasis supplied)

Under Section 39 (a), quoted above, a petition for reconsideration may be filed by "the party adversely
affected by the decision" within the period for filing an appeal from the decision, within fifteen (1 5)
days from receipt of the decision by the "party adversely affected by [it]." The party adversely affected
by the decision of 22 February 1983 of the Merit Systems Board was not the Civil Service Regional
Office, Region 12, nor was it the Chief of the Iligan City Hospital. It was rather the Director of the
Regional Health Office, Region 12, who had issued the appointments dated 27 October 1982 and 1 July
1981 to Lourdes Crisol as "Acting Chief Nurse II" and as "Chief Nurse II," respectively, in both cases
"vice Emilie Quezon, dropped." In his Comment on the Petition for Review, the Solicitor General
stated that the Regional Health Director was never served a copy of the decision. 5 If so, then we agree
with the Solicitor General that that decision of the Merit Systems Board never became final and
executory as to the Regional Health Director. Upon the other hand, petitioner claims that the lawyer
who had represented the Regional Health Director in the proceedings before the Merit Systems Board,
was furnished a copy of that decision. The records of this case are, however, bereft of any indication
(apart from the simple assertion of petitioner's counsel) that counsel for the Regional Health Director
had received a copy of the 22 February 1983 decision and of the date of such receipt. We are, hence,
entitled to rely upon the presumption of regularity (which includes the timeliness) of performance of
official functions both on the part of the Merit Systems Board when it reconsidered the 22 February
1983 decision and on the part of the Civil Service Commission when it upheld the second decision of
the Board. The Regional Health Director was similarly entitled to the benefit of the same presumption
when he filed the motion for reconsideration. 6 Petitioner has not overcome this presumption.
We turn to the second contention of the petitioner: that the petitioner was dropped from the government
service without notice and without affording her an investigation where she could explain her side, and
without the prior warning con. templated in Section 33, Rule XVI of the Revised Civil Service Rules.
Section 33 of Rule XVI reads as follows:
Under no circumstances shall leave without pay be granted for more than one year. If an employee who
is on leave without pay for any reason fails to return to duty at the expiration of one year from the
effective date of such leave, he shall be considered automatically separated from the service; Provided
That he shall within a reasonable time before the expiration of his one year leave of absence without
pay, be notified in writing of the expiration thereof with a warning that if he fails to report for duty on
said date, he will be dropped from the service. (Emphasis supplied)

In the present case, as noted earlier, petitioner was given a one-year extension of her special study
leave, subject to certain conditions, commencing from June 1978. Petitioner's leave credits were
exhausted by 18 July 1978. If we assume, under the view of this case most favorable to the petitioner,
that the restriction in Department Order No. 125- A prohibiting any extension of the original 12-month
study grant was waived by the Department of Health, and assuming further (but arguendo, merely) that
both the first extension of twelve months and the second extension of seven months of her leave
without pay (i.e., from June 1978 to June 1979, and from June 1979 to December 1979, respectively)
were validly approved, then, under Section 33 of Rule XVI, petitioner was automatically dropped from
the service as of January 1980 when she failed to return to work at the end of her approved leave
without pay which then already totalled nineteen (19) months.
In the present case, it does not appear that petitioner was, at some "reasonable time" before expiration
of her approved leave without pay, notified in writing of the impending expiration of such leave and

warned that petitioner will be dropped from the service if she failed to report for duty upon such
expiration. What was the effect of the Department of Health's failure to notify the petitioner in writing
of the approaching expiration of the maximum permissible leave without pay? Fortunately, this is not a
question of first impression. In Isberto vs. Raquiza, 7 'the Court had occasion to consider and pass upon
Rule XVI, Section 33 of the Revised Civil Service Rules:
But it may be argued that plaintiff-appellee was not ever given a written notice within a reasonable
period before the date of the expiration of his leave of absence without pay, warning him that if he fails
to report for duty on the date his leave of absence without pay expires, he will be dropped from the
service. The [purpose of the] proviso in Section 33 of Rule XVI of the Revised Civil Service Rules ... is
to remind the officer concerned of his impending separation from the service so he could prepare for
such an eventuality. In the case before Us, however, the plaintiff-appellee did not even have the proper
leave of absence without pay because his leave of absence without pay was only up to April 30, 1958
and he did not extend it. He went AWOL (absence without official leave) beginning May 1, 1958 and
applied for reinstatement only on June 20, 1961. The failure of plantiff-appellee to claim for
reinstatement for a period of two and a half years from January 29, 1959 when he was deemed
automatically separated from the service is a clear case of abandonment. He ought to have known that
he was automatically separated from the service on January 29, 1959. His ignorance of the provision of
Rule XVI, Section 33 of the Revised Civil Service rules, providing for automatic separation from the
service of an [employee] who fails to return to work after the expiration of his leave of absence without
pay did not excuse him ... 8
Ramo v. Elefano, 9 is also helpful in this connection. There, the Court noted that respondent Elefano
had requested an extension of her leave of absence without pay for another year, 27 days before her one
year leave expired. The Regional Civil Service Director did not approve the request for extension and
in- stead invited attention to Section 33, Rule XVI. The letter of the Regional Director was
communicated to respondent Elefano after expiration of her one year leave without pay "for her
information and compliance." Elefanio nonetheless failed to return to her position and continued her
efforts to secure extension of her leave of absence without pay but without success. Elefano returned to
her position approximately 11 months after expiration of her one year leave of absence without pay.
The Court sustained the action of the Board of Trustees of Leyte State College in dropping Elefano
from the service of the college "for having failed to return to duty after the expiration of her one year
leave of absence" and reversed the judgment of the lower court which had ordered the Board of
Trustees to reinstate Elefano.
We read Isberto and Ramo to have held, and in any case we now so hold, that the written notice
contemplated in Rule XVI, Section 33 is not jurisdictional in nature and that the failure to give such
notice by the appropriate government office does not prevent the dropping of the employee concerned
from the government service. In the nature of things, staying away from one's regular employment in
the government or remaining on leave without pay is something that an employee can scarcely be
unaware of, In the instant case, the petitioner was clearly aware that she was on an extended leave
without pay. Her repeated requests for extensions of her original special study leave are evidence of her
awareness that she needed official approval for such continued leave. When approval of her requests
for the third and fourth extensions of her original study leave was not forthcoming, petitioner resorted
to a request on 13 September 1980 that she be detailed to the Zamboanga General Hospital. This too
was not approved by the Regional Health Office, Region 12.
Here, as in Isberto and Ramo, there is not only violation of Rule XVI, Section 33 but also abandonment
of her position on the part of petitioner. From January 1980, when she was automatically dropped from

the service pursuant to Rule XVI, Section 33, up to 6 January 1982 when petitioner reported for duty
and in effect asked for reinstatement, a period of two years had elapsed, during which time petitioner
must be regarded as having been absent without leave (AWOL). Petitioner completely disregarded the
fact that her requests for extensions and for detail to Zamboanga were never approved by the
Department of Health authorities, and continued to stay away until it suited her to return and demand
reinstatement at the Iligan City Hospital. She was of course not entitled to assume that her requests
would be approved, as they could not be approved, being in direct contravention of Rule XVI, Section
33. 10
Petitioner also complains that no investigation was held by the Department of Health authorities before
she was in fact regarded as dropped from the service and Lourdes Crisol appointed to petitioner's
former position. Even so, we do not believe that she has been denied procedural due process. Rule
XVI, Section 33 speaks of automatic dropping from the government service and thus clearly does not
require prior hearing before an employee may be dropped from the government service. The
requirements of procedural due process do frequently include a prior hearing before adverse
consequences may be visited by the government upon individuals. 11 There are, however, exceptions
and what we have here is an exception. There appears no way by which the government can compel an
unwilling employee to return to his post; the instant case affords ample illustration of his incapacity.
The automatically of the sanction of dropping or removal from the government service under Rule
XVI, Section 33 is precisely one of the means by which return to an employee's post is sought to be
achieved. That automatically also enables the government to fill the office in effect abandoned by the
employee involved, as the exigencies of the service may demand. The requirements of government
service, especially the needs of a government hospital for the services of nurses, cannot be made to
wait upon the convenience of an employee who insists on being "AWOL. " The demands of procedural
due process are satisfied by giving an employee who has been "AWOL" the opportunity to contest the
legality of his being dropped from the government service upon his return to his post. Indeed, as a
purely practical matter, it is very difficult to see how hearing can be had and due process extended to
the employee unless he first reports for work. Here, petitioner was given a full hearing and full
opportunity to present her side before the Merit Systems Board and the Civil Service Commission after
she had reported for work and demanded reinstatement. Here, the requirements of procedural due
process were fully met.
The petitioner having failed to show any grave abuse of discretion or any act done without or in excess
of jurisdiction on the part of the Civil Service Commission, the petition for certiorari is DENIED. The
decision of the Civil Service Commission is AFFIRMED. Costs against the petitioner.
SO ORDERED.

EN BANC

[A.M. No. 98-8-246-RTC. February 15, 1999]

RE: ABSENCE WITHOUT OFFICIAL LEAVE (AWOL) OF DARLENE A. JACOBA,
STENOGRAPHER III, REGIONAL TRIAL COURT, BRANCH 14, MANILA
RESOLUTION
QUISUMBING, J.:
This administrative matter concerns Darlene Jacoba, Stenographer III of Branch 14, Regional Trial
Court, Manila. Records at the Administrative Services Division of the Office of the Court
Administrator (OCA) reveal that she began incurring unauthorized absences on July 1, 1997. Through
the presiding judge of Branch 14, Judge Inocencio D. Maliaman, OCA asked her to explain why she
should not be dealt with administratively, in a letter dated October 9, 1997, which reads:
Ms. Darlene A. Jacoba
Thru Judge Inocencio D. Maliaman
RTC, Br. 14
Manila
Sir/Madam:
Our records show that you have been continuously absent from office since July 1, 1997 up to the
present without any approved application for leave of absence, a conduct prejudicial to the best interest
of the service and punishable under the Civil Service Law.
You are, therefore, directed to explain in writing within five (5) days from receipt hereof, why you
should not be dealt with administratively. Otherwise, this Office will be constrained to recommend
that you be dropped from the roll.
Very truly yours,
(SGD.) MA. CORAZON M. MOLO
Officer-in-Charge
Office of the Administrative Services
OCAD[1]

At the same time, Jacobas salaries were ordered withheld.[2]

Jacoba did not respond to the letter of the OCA so a follow-up letter was sent to Judge Maliaman. The
OCA also asked for Judge Maliamans recommendation regarding this matter. Specifically, Judge
Maliaman was asked whether or not Jacoba should be dropped from the service for having been absent
without official leave.[3]
Judge Maliaman informed the OCA that Jacoba had, indeed, been absent starting August 7, 1997. She
told Judge Maliaman that she would be filing a letter of resignation but she had not done so.[4] In a
letter dated December 19, 1997, Judge Maliaman recommended that Jacoba be dropped from the
service.[5]
There is no doubt that Jacoba has been remiss in her duties as court stenographer, to the detriment of
the service. This falls within the purview of Section 35, Rule XVI of the Omnibus Rules on Civil
Service, which provides:
Officers and employees who are absent for at least thirty (30) days without approved leave are
considered on Absence Without Leave (AWOL) and shall be dropped from the service after due notice.
x x x
Under the present Omnibus Rules on Appointments and Other Personnel Actions, an employee who is
absent without approved leave for at least 30 calendar days shall be separated from the service or
dropped from the rolls even without prior notice.[6]
We have repeatedly held that the conduct and behavior of everyone connected with an office charged
with the dispensation of justice is circumscribed with the heavy burden of responsibility.[7] This Court
cannot countenance any act or omission on the part of all those involved in the administration of justice
which would violate the norm of public accountability and diminish or even just tend to diminish the
faith of the people in the Judiciary.[8]
WHEREFORE, in view of the foregoing, Darlene A. Jacoba, Court Stenographer III, Regional Trial
Court, Branch 14, Manila is hereby DROPPED from the service.
SO ORDERED.

FIRST DIVISION
G.R. No. 78853 November 8, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROEL PUNZALAN, JOSE BESIDA @ "JOSE VESIDOR", MARIETA MENDOZA and
DOMINGO MENDOZA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellants.

FELICIANO, J.:p
The accused, Marieta Mendoza, appeals from the decision of the Regional Trial Court, Fourth
Judicial Region, Branch 30, San Pablo City, convicting her of the crime of robbery with
homicide and imposing on her the penalty of reclusion perpetua.
The appellant, together with Roel Punzalan, Jose Besida, and Domingo Mendoza, were
charged in Criminal Case No. 4578-SP in an information which read as follows:
That on or about July 11, 1986 at Poblacion, Alaminos, Laguna and within the jurisdiction of this
Honorable Court, accused MARIETA MENDOZA, in conspiracy with her husband DOMINGO
MENDOZA and ROEL PUNZALAN and JOSE BESIDA alias "Jose Vecido" who are also still at
large and whose case is still pending in the Municipal Trial Court, except Domingo V. Mendoza,
were all employed as domestic helpers in the house of Judge Conrado Fule an Mrs. Lourdes
Fule located in aforesaid municipality, while conveniently provided with bladed weapons, taking
advantage of night time with treachery and evident premeditation, with abused of superior
strength, in disregard of the respect due the offended party and dwelling, conspiring,
confederating and mutually helping one another, forcibly entered the bedroom of Mrs. Lourdes
Fule where the latter was sleeping and once inside therein, with intent to kill, did then and there
wilfully, unlawfully and feloniously jointly attack assault and stab Mrs. Lourdes Fule with the
weapons they were provided, inflicting upon the latters mortal stab wounds on different parts of
her body which caused her instantaneous death and on the same occasion and by reason
thereof, with intent to gain, ransacked the bedroom of the victim, Mrs. Lourdes Fule and did then
and there wilfully, unlawfully, and feloniously, take steal and carry away cash money in the sum
of TEN THOUSAND (P10,000.00) PESOS and assorted pieces of jewelry worth ONE MILLION
SIX HUNDRED THIRTY SIX THOUSAND (P1,636,000.00) PESOS, belonging to the victim
Lourdes Fule, to the damage and prejudice of the victim and the surviving heirs, in the amount
of ONE MILLION SIX HUNDRED FORTY SIX THOUSAND (P1,646,000.00) PESOS,
representing the total amount unlawfully taken and carried away and damages by reason of the
death of aforenamed victim.
Contrary to law. 1

Appellant's co-accused have remained at large up to the present time. Consequently, the
prosecution of the case proceeded only against appellant; the case was archived by the trial
court with respect to her co-accused. 2
Appellant proceeded to trial after entering a plea of not guilty on 7 May 1986. 3 On 17
September 1986, after the prosecution had presented four (4) of its six (6) witnesses, Judge
Benedicto Paz inhibited himself on the ground that his landlady was the sister-in-law of the
victim. 4 The case was then re-raffled to the sala of Judge Salvador P. de Guzman Jr. From
there the case was re-raffled again to another sala because Judge de Guzman could not
maintain a weekly schedule of trial hearings for the case. 5 The case was eventually assigned
to the sala of Judge J. Ausberto Jaramillo, Jr., who tried the case to completion and wrote the
judgment of conviction dated 22 May 1987. 6

The dispositive portion of the decision states:

WHEREFORE, in view of all the foregoing, the court finds accused Marieta Mendoza guilty
beyond reasonable doubt of the crime of robbery with homicide punishable from reclusion
perpetua to death aggravated by the circumstances of dwelling, in disregard of the respect due
to the offended party, abuse of superior strength, evident premeditation, nighttime and abuse of
confidence without any mitigating circumstance, and hereby sentences her to the applicable
penalty of death. Fortunately, for accused Marieta Mendoza, however, the death penalty has to
be reduced to life imprisonment in accordance with Article III, Section 19(1) of the 1987
Philippine Constitution.
Accused Marieta Mendoza shall indemnify the heirs of Mrs. Lourdes Fule the sum of P30,000 as
civil liability for her death and shall also indemnify them the peso equivalent of the US$5,000,
P70,000 and P1,500,000.00 representing the stolen items, without subsidiary imprisonment in
case of insolvency and to pay the costs of the proceedings.
xxx xxx xxx
SO ORDERED. 7

The facts of the case as found by the trial court are as follows:
The accused Marieta is married to accused Domingo Mendoza. Since two years prior to the
incident in question, the former, was employed on an off-and-on basis with the family of the
Fules until the time when the daughter of the family cook Nieves Garcia Santos left when
accused Marieta became a permanent househelp. Accused Marieta's primary duty was to attend
to the needs of Mrs. Lourdes Fule who was then 66 years old, sick with hypertension. To be
able to promptly administer to the needs of her mistress, the accused Marieta was made to
sleep immediately outside the door of her mistress so that medicines could be given to her as
the need arises. The accused Roel Punzalan was one of the houseboys of the Fules since
about 4 to 5 months prior to the incident while accused Jose Besida alias "Jose Vecidor" was
hired two months prior, at the instance and effort of accused Domingo Mendoza. A week prior to
the incident all the accused plotted to rob Mrs. Fule who had a collection of jewelries and certain
amount of cash.
On 9 July 1985 accused Domingo Mendoza arrived at 9:00 a.m. and stayed at the servants'
quarters of the Fule compound located at corner Del Pilar and Rizal Avenue, Alaminos, Laguna.
He was seen in close huddle with the other said accused. He spent the night until the next day
of July 10, 1985 (sic). After the master of the house, Judge Conrado Fule left for Manila at about
4:00 p.m. all the accused were seen to be in secret and close conversation. Accused Domingo
Mendoza was heard to have uttered "Ituloy na natin wala si Judge Fule". Accused Domingo
Mendoza left at 6:30 p.m. that day. At about 7:30 p.m. Gregorio Fule had supper at his mother's
house while being served by Nieves Garcia Santos and accused Marieta. After eating, mother
and son were talking about their health while the son was fixing the betamax unit. After fixing the
betamax, the son, Gregorio Fule left his mother watching a betamax tape together with the
accused Marieta, Roel Punzalan, Jose Besida, a child of Marieta and Nieves Garcia Santos. At
about 11:30 p.m. of July 10, 1985, accused Roel Punzalan and Jose Besida went out of the
house for their servants' quarters while the victim, Lourdes Fule and accused Marieta locked up
all the doors to the house. At 12:30 a.m. of July 11, 1985 accused Marieta was seen at the door
of the servant's quarters calling (sutsot) for Roel Punzalan and Jose Besida after which the three
of the accused went up to the house. Accused Marieta Mendoza knocked on the door of the
victim and woke her up on some pretext. When the door was opened by the victim, accused
Roel Punzalan and Jose Besida went rushing in and inflicted the injuries and stab wounds on
the victim. They put cloth on her mouth to prevent her from making an outcry. When the victim
was still lying on her bed bleeding to death, the accused Roel Punzalan and Jose Besida

ransacked her drawers and scooped up the jewelries and cash money. At this juncture, accused
Domingo Mendoza was waiting in a parked jeep outside the Fule compound. While all these
were going on accused Marieta did not do anything to help the victim. She did not also prevent
the killing of the victim. When the crime was consummated, the accused Roel Punzalan and
Jose Besida told accused Marieta that they would meet at Del Remedio, changed their bloodied
clothes at the staircase and under the oliva (sic) tree on the ground of the Fule compound.
At 6:00 a.m. of July 11, 1985, accused Marieta woke up June Murillo, another houseboy and
Nieves Garcia Santos without telling any of them about anything unusual that transpired
previously or what had happened to the victim. Murillo started cleaning the Fule compound until
he noticed that the front iron gate of the Fule compound was open. He reported this to accused
Marieta and Nieves Garcia Santos and the three of them went up to the adjoining house of
Gregorio Fule to report the matter. Accused Marieta informed Gregorio Fule that "Napasukan
tayo ng magnanakaw". Murillo was instructed to fetch the police. Gregorio Fule saw the
bloodstained clothing near the oliva (sic) tree and other personal items on the stairs leading to
her mothers room. When he went up, he saw the sleeping mat, pillow and blanket of the
accused Marieta immediately outside the door of her mother's room and when he was already
inside he saw [his] mother already covered with blood, blood was all over the room, in pillows,
boxes, etc. The drawer where the valuables were kept was open emptied of the $5,000.00,
P70,000.00 cash and P1.5 million worth of assorted jewelries. He went out of his mother's room
and confronted accused Marieta on what happened. Accused Marieta responded that she knew
nothing allegedly because "Tulog na tulog po ako". The police arrived and an investigation was
conducted. Accused Marieta was initially treated as a possible witness until later on when she
was suspected of having an involvement in the crime. 8

Appellant Marieta Mendoza narrated in court a different story. Her story, as set out in her
Brief, was the following:
She "had been working as a housemaid of Mrs. Lourdes Fule for five (5) years at the time the
incident happened although not on a continuous basis. There was (sic) times when she was
borrowed by Mrs. Fule's daughter, Marilou. On the first week of July, 1985, she was with Marilou
but on the second week thereof, she was with Mrs. Fule. On the night of July 10, 1985, after all
the members of the household had taken their supper and after fixing the kitchen, Marieta joined
Mrs. Fule in watching a television program together with two children, one of whom was her son.
Roel Punzalan and Jose Besida also came and joined them. After a while, she noticed Jose
Besida went to the kitchen and inside her room. She did not notice Roel Punzalan left (sic) the
place where they were watching television. The doors were then all open including the door at
the room of Mrs. Fule and the door at her room. They have finished watching television at
around 11:00 o'clock in the evening of July 10, 1985 after which Mrs. Fule and she locked all the
doors. She was the one who put up the mosquito net on the bed of Mrs. Fule and she did not
notice anybody inside the room. She slept with her son outside the room of Mrs. Fule, around
three meters from the door of Mrs. Fule's room outside of the white mark, shown in Exhibit "F-1".
When lying down, the cabinet in her room was at her right side and so with the way leading to
the comfort room. At her left side was the aparador and the room where rice and iron (sic)
clothes are kept. The door of the room of Mrs. Fule has a lock both inside and outside. Until the
time she went to sleep, she did not notice Besida went out of the room. Mrs. Fule's schedule of
taking her medicine was after each meal, thus she does not have to wake up Mrs. Fule for the
medicines.
At around 2:00 o'clock in the morning of July 11, 1985, Marieta was awakened by sounds of
moaning from Mrs. Fule but when she stood up, she was blocked by Roel Punzalan and was
told to just lie down or else she will be killed at the same time poking something at her back
which she presumed to be a bladed instrument because it pierced through her skin. Because of
the threat, Marieta just lay down facing the cabinet. After around three minutes, Punzalan went
out of the room but she did not notice whether he was carrying something or whether his shirt
had bloodstain. After three minutes, another person passed by and because of fear for her life,

she just lay down facing sidewise towards the cabinet with her back against the passage from
the door of the room of Mrs. Fule to the other door. It was about 2:15 to 2:30 o'clock in the
morning that these two persons went out of the room of Mrs. Fule and her room. The door of the
room of Mrs. Fule was slightly open and she saw scattered things but she did not see Mrs. Fule.
From the time she was ordered to lie dawn by Punzalan, she did not sleep, she just lay down.
Much as she wanted to inform the other occupants of the house, she was not able to do so
because of fear that Punzalan might still be in the house, so she waited until around 6:00 o'clock
in the morning. She crawled going to Nieves Santos and inquired about Roel Punzalan whom
she saw at the room of Mrs. Fule. She told Nieves that she heard Mrs. Fule moaning and that
she saw Roel Punzalan in the room of Mrs. Fule at around 2:00 o'clock that morning. Upon
knowing that Roel Punzalan and Jose Besida were not there, she and Nieves together with Jun
Murillo went to Gregorio Fule who is just living in the house adjacent to the house of Judge Fule.
When they told Gregorio that Roel Punzalan and Jose Besida were no longer there, they were
told by Gregorio to call a (sic) police and Gregorio went directly to the room of his mother. Until
such time, she had no knowledge of what actually happened to Mrs. Fule because the first thing
she did in the morning was to inquire from Nieves Santos the whereabouts of Punzalan because
of what she had witnessed a few hours ago and later she was told by Gregorio to report the
incident to the police.
Marieta further testified that her husband, Domingo visited her days before the incident. They
talked about the children and his drinking and nothing else. When Judge Fule left for Manila on
July 10, 1985, Domingo was no longer there having left that day at around 4:00 o'clock in the
afternoon. She did not notice her husband talked (sic) with Roel Punzalan and Jose Besida. She
knew nothing of the plans of Punzalan and Besida. Neither did she knew (sic) of the presence of
these jewelries and money inside the room of Mrs. Fule.
Marieta was investigated several times. The first statement was in her own handwriting which
was dictated to her by Ma Ading (Nieves Santos' nickname) and Francisco Fule (Gregorio's
brother) with a threat to kill every member of her family if shell make a mistake. Another
statement was in typewritten form prepared by the police when she was interrogated at the
police station on July 11, 1985 (Exh."H"). She did not fully understand every question asked of
her by the police officer. She signed said statement because she was told that there was
nothing wrong in signing said statement. On July 15, 1985, another statement was prepared at
the police station of Alaminos, Laguna with her signature appearing thereon (Exh. "C"). 9

Appellant, in her Brief, made the following assignment of errors:

I
The trial court gravely erred in giving much weight and credence to the evidence for the
prosecution and in disregarding totally the evidence for the defense.
II
The trial court gravely erred in finding accused-appellant as a conspirator granting without
admitting that conspiracy existed in the commission of the offense.
III
The trial court gravely erred in finding accused-appellant guilty beyond reasonable doubt of the
crime as charged in the information.
IV

The trial court gravely erred in appreciating the aggravating circumstance of nighttime, abuse of
superior strength, disregard of the respect due the offended party on account of his rank, age or
sex, dwelling and evident premeditation. 10

Appellant maintains that the prosecution failed to establish that she was a conspirator in
respect of the robbery or the slaying.
To this end, she seeks to impugn the credibility of some prosecution witnesses who gave
testimony indicating her adherence to the plan of robbing the victim. She points out that since
the Judge who had observed the demeanor of witnesses Nieves Santos and Pepito
Hernandez in court was not the same Judge who wrote the decision under review, the
Supreme Court is not bound by the latter judge's findings on the credibility of these witnesses.
The general rule is that findings of the trial court on the credibility of witnesses are accorded
great weight and will not lightly be disturbed by an appellate court. The underlying reason for
this rule is that the trial judge had an opportunity to observe the demeanor of witnesses while
testifying, an advantage not enjoyed by an appellate court. Appellant's contention has merit in
the sense that the Court cannot rely solely on the aforestated rule with respect to the two
witnesses mentioned, (Nieves Santos and Pepito Hernandez) and must make its own
evaluation of the testimony of these witnesses. 11
But the Court must also emphasize that the circumstance pointed out by appellant, taken
alone, does not render erroneous the trial court's reliance upon the testimony given by Santos
and Hernandez. 12 The continuity of a court and the efficacy of its proceedings are not
affected by interruptions in the service of the judge(s) presiding over it. 13 In this case, the
Judge who wrote the decision had presided over the latter half of the trial. 14
Appellant contends that the trial court should not have found Nieves Santos and Pepito
Hernandez as credible witnesses, considering that both were employees of the victim's
husband and considering further that their sworn statements tending to incriminate the
appellant were submitted to the Fiscal's Office only three (3) months after the commission of
the crime. Appellant suggests that Judge Fule exercised considerable influence over these
two witnesses.
It may well be true that Judge Fule had asked and persuaded Santos and Hernandez to
testify for the prosecution. However, this Court is not prepared to believe, for that reason
alone, that Judge Fule led those two witnesses to testify falsely against appellant. There
simply is no basis for such an insinuation.
The fact that witnesses Nieves Santos and Pepito Hernandez were brought to the Fiscal's
Office by counsel of the heirs of the victim three (3) months after the killing of the victim, does
not by itself impair their credibility. An obvious explanation for this delay, if delay it was, is that
it took sometime before those two (2) individuals overcame their natural reluctance to become
involved in the investigation of a brutal crime and to testify in court when co-accused Roel
Punzalan and Jose Besida were, and are, still at large.
Appellant then contends that the testimony of Santos and Hernandez was incredible in itself.
Appellant's claim is that it was improbable that Pepito Hernandez saw Domingo Mendoza

(husband of appellant Marieta) in front of Fule's house at 4:30 A.M. on 11 July 1985 because
this would place him (Domingo Mendoza) approximately 2 1/2 hours behind the time when
Roel Punzalan and Jose Besida left the room of the victim. It does not seem to the Court
necessary to deal with this contention. That particular statement of Hernandez is not directly
relevant to the establishment of Marieta's culpability. Whether or not Domingo Mendoza had
furnished the getaway vehicle for Roel Punzalan and Jose Besida, does not impact upon
other evidence on record tending to show that Marieta had indeed conspired to rob the victim.
Marieta impugns the testimony of Nieves Santos as improbable. Marieta claims, first, that it is
unlikely that Nieves had chanced upon and heard a discussion among the several accused
relating to a plan to perpetrate the robbery during the absence of Judge Fule, considering that
the accused would, (if they were true conspirators) have taken great pains to conceal their
criminal plan from a third party who might denounce them. Secondly, Marieta questions why
Nieves Santos was able to hear and recall only incriminating remarks from the alleged
discussion. Finally, Marieta asks why, if Nieves Santos had indeed seen her (Marieta)
summon Roel Punzalan and Jose Besida from the servants' quarters an hour or so before the
crime was committed, Nieves found nothing unusual in such summons and chose casually to
go back to sleep.
Once more, we consider that it is unnecessary to deal with these speculative arguments in
any detail. We do not think it impossible that Nieves Santos should have overheard only
fragments of a discussion among the co-accused who, presumably, were not interested in
broadcasting their intentions to the whole world. The summons by Marieta of her co-accused
did not alarm Nieves Santos who thought that the house boys had been called for by the
victim. That Nieves Santos did not volunteer to get up and help in whatever chore may have
been needed to be done for Mrs. Fule, does not appear unusual at all when one recalls that
Nieves Santos was a cook rather than a house-girl or an all-purpose domestic servant.
Further, the acts and words that Nieves Santos testified she had seen and overheard do not
appear unambiguous indications of some evil intent or act. Only after the discovery of the
bloody killing of Mrs. Fule and the taking away of valuable jewelry in addition to cash, did
those acts and words appear significant.
Appellant next seeks to assail the testimony of prosecution witness Gregorio Fule, son of
Judge Fule and the victim Mrs. Lourdes Fule. Marieta contends it was unnatural that Gregorio
Fule had failed to mention having discovered some pieces of jewelry belonging to his mother
in or under appellant's pillow on her sleeping mat in the corridor immediately outside Mrs.
Fule's bedroom on the morning that he found his mother's body. Gregorio Fule first made
written mention of such pieces of jewelry three months after the killing and robbery. Marieta
also contends that Gregorio contradicted himself when he stated in court that he had placed
the jewelry he accidentally found on the floor outside the bedroom in a bank vault, considering
that Gregorio also testified that Judge Fule had refused to permit the opening of Mrs. Fule's or
the family's vault or safety deposit box in the Prudential Bank branch in Alaminos. Marieta
asks why, if she was indeed involved in the crime, she would conceal the fruits thereof in a
place so open to discovery.
Once more, we do not think these arguments significantly affect the testimony of Gregorio
Fule. An ordinary person suddenly confronted with the bloodly corpse of his mother would be
so shocked and disoriented, as Gregorio Fule was, as to forget or overlooked confronting

appellant Marieta about the stray pieces of jewelry on the floor near her sleeping mat. That he
had executed his statement referring, among other things, to such stray pieces of jewelry only
three (3) months later does not necessarily imply that he had merely fabricated such
statement. Moreover, whether or not the said pieces of jewelry were in fact placed by
Gregorio Fule in the bank vault (possibly in a vault of the Rural Bank of Alaminos, whose
offices were on the first floor of Judge Fule's house) has no necessary bearing on the truth or
falsity of his statement concerning his inadvertent discovery of such stray pieces of jewelry on
the floor. As for the supposed improbability of Marieta ineffectually hiding those pieces of
jewelry in or near her pillow, it seems sufficient to note that she may well have been unable to
think of a more secure hiding place for the stray pieces of jewelry on the spur of the moment
that brutal and bloody night. In any case, Judge Jaramillo who wrote the decision of the trial
court had in fact observed witness Gregorio Fule as he testified in court and Judge Jaramillo
found his testimony worthy of credence.
Since there was no direct evidence that appellant Marieta had actually participated in the
physical assault and stabbing of the victim Mrs. Lourdes Fule, her conviction rests upon the
conclusion of the trial court that she had participated in a conspiracy to commit the robbery in
the course of which the homicide had occurred. The factors which lead the trial court to this
conclusion are set out in repetitive detail in the following portion of the trial court's decision:
It is undisputed that accused Marieta was already aware that Lourdes Fule was moaning that
fateful night and had glimpsed inside the victim's room seeing scattered things. But she did not
do anything to assist her or prevent her killing. Neither did the accused Marieta relate what she
witnessed that night to Nieves Garcia Santos and Gregorio Fule. Her suppression of such
information is highly auspicious, to say the least.
Her claim that Roel Punzalan prevented her from entering the room of the deceased is
unbelievable. If it was really true that Roel Punzalan blocked her way at the door and ordered
her to lie down otherwise she would be killed, accused Marieta could have rushed out of her
room and summoned help. Her excuse that she was allegedly paralyzed by her fear is not
worthy of credence because of her allegation that from 2:00 a.m. to 6:00 a.m. she was awake
lying down on her sleeping mat while the victim was already dead or perhaps bleeding to death.
No person who is only three (3) meters away from the body of another, a victim of foul play
could have the nerve to stay alone at night for four hours. An innocent person under such
circumstances would have not lasted five (5) minutes staying in that room for four (4) hours
without doing anything. The fact that accused Marieta was able to show how coldblooded she is
and suggested her complicity. She knew Mrs. Lourdes Fule moaned that night and could have
reasonably thought that she was hurt and needed help. But when Roel Punzalan and Jose
Besida left the victim's room, she did not even bother to check and see why her mistress was
moaning so strong enough to have awakened her. Moreover, the fact that she suppressed the
information about what happened to her mistress to Nieves Santos and Gregorio Fule was
obviously intended to feign innocence. But if she was really innocent and was not a coconspirator, she could have easily told Nieves Santos and Gregorio Fule what happened to her
mistress at the first opportunity. At that particular time Jose Besida and Roel Punzalan were
already gone and the members of the Fule family were there to offer her protection. She had
nothing to fear from Jose Besida and Roel Punzalan since they were already gone. Instead, she
only told Gregorio Fule that "Napasukan tayo ng magnanakaw" when they reported to him about
the open front iron gate.
If it was also true that while watching TV she saw Jose Besida enter her room leading to the
victim's room, her failure to report this to the victim, to Gregorio Fule or others leads one to
believe that she was part of the conspiracy and lends support to the existence of a criminal plan.

xxx xxx xxx

[S]he was not tied or bound by the other two accused, if the accused Marieta was not a
conspirator, since she was an eye witness to the heinous crime she could have been killed by
the said two accused to eliminate an eye witness. Or, at least they could have tied and gagged
her to immobilize her to give them ample time to escape in the darkness of the night. She was
not hurt by them. The fact that she was not tied, gagged, hurt or killed by accused Roel
Punzalan and Jose Besida militates against her claim of innocence.
The room of the victim is such that no one can enter inside without passing through accused
Marieta. The victim had jewelries and cash inside her room, for which reason she would not just
open her door to anybody especially in the middle of the night. Anyone planning to rob her must
contend with the presence of accused Marieta who slept outside the room of the victim. Roel
Punzalan and Jose Besida could not have consummated the crime without the involvement and
indispensable cooperation of accused Marieta. If she was not involved or a co-conspirator she
would have been eliminated first, immobilized or neutralized before the other accused could
break-in the door of the victim. It is significant to note that the door of the victim can not be
opened by a false key from the outside. It could only be opened from the inside by releasing or
sliding the iron bolt which is installed inside. The fact that the victim's door was not forcibly
opened shows that the victim opened the door herself. The victim would not have opened for
accused Roel Punzalan and Jose Besida who were relatively newly hired househelpers. But she
would have opened the door for accused Marieta, her sort of nursemaid and security.
xxx xxx xxx
She could not explain how come Roel Punzalan was found inside the room of the victim inspire
of the fact that she, together with the victim, closed and locked all the door prior to retiring to
bed. The only persons that night in the house were the victim and accused Marieta. The victim
could not have opened the doors leading to her room. The accused Marieta admitted that the
victim never allowed any of the househelpers to enter the house at night. Accused Marieta
expressed ignorance on how the other accused were able to enter the room of the victim. All
these circumstances put together definitely established the guilt of the accused Marieta. 15

Examining the above excerpt, the elements consisting either of affirmative acts or failure to
act which led the court to conclude that appellant had acted in concert with Roel Punzalan
and Jose Besida, may be summarized as follows:
1. She had participated in the discussion among her husband Domingo Mendoza, Roel
Punzalan and Jose Besida in the afternoon before the robbery and the killing, when Domingo
Mendoza had declared that the time to carry out their plan had arrived with Judge Fule gone;
2. Marieta had unlocked doors and summoned Roel Punzalan and Jose Besida from the
servants' quarters and brought them inside Judge Fule's house an hour or so before the robbery
and the killing were committed;
3. Appellant Marieta had, by her own testimony, seen Jose Besida enter her room leading to
Mrs. Fule's room while Mrs. Fule and others were watching a video film, but failed to report that
fact to Mrs. Fule or to anyone else in the household then watching the video film;
4. After hearing the moaning of Mr. Fule through the open bedroom door and after she was
aware that Roel Punzalan and another person had left Mrs. Fule's room in the corridor in which
Marieta slept, she, per her own testimony, stayed in the floor for four hours without attempting to
find out what had happened to Mrs. Fule and without attempting to awaken Nieves Santos or
any body else and to raise the alarm;

5. Marieta had not been harmed in any way by Roel Punzalan and Jose Besida although she
obviously recognized them; they had not even tied or gagged her to prevent her from raising an
alarm.

We believe that the above multiple factors, when considered together, lead to the conclusion,
constituting moral certainty, that appellant Marieta had acted in concert with Roel Punzalan
and Jose Besida at least in respect of the robbery. It is possible that the conspiracy did not
originally extend to the killing of Mrs. Fule, and that such killing was resorted on the spur of
the moment to counter unexpected resistance on the part of Mrs. Fule or to prevent any
outcry on her part. The general rule, however, is that where conspiracy or action in concert to
achieve a criminal design is shown, the act of one is the act of all and that the extent of the
specific participation of each individual conspirator becomes secondary, each being held
liable for the criminal deed(s) executed by another or others. 16
Appellant insists that she was unaware of any plan to rob the victim and that the fact that she
did not flee with her co-accused shows that she had not joined the conspiracy.
The simple refusal or failure to flee with her co-accused does not, by itself, necessarily imply
that she had never conspired to rob the victim. Taking the totality of the evidence presented
against appellant Marieta in the light most favorable to her, her failure to flee may be
considered as indication that she had been shocked that what had begun as a plan to rob
Mrs. Fule of her jewelry and money culminated in her brutal slaying, and that appellant
Marieta sought to disavow the conspiracy to rob which she had initially joined. So viewed, the
ultimate issue may be seen to be whether her "disavowal" or disengagement through failure
or refusal to flee was sufficient to extinguish or negate criminal liability for the robbery and the
killing.
We believe and so hold that such "disavowal" through failure to flee was not sufficient to
discharge appellant Marieta from liability for the robbery and the killing. One who joins a
criminal conspiracy in effect adopts as his own the criminal designs of his co-conspirators; he
merges his will into the common felonious intent. A person who embraces a criminal
conspiracy is properly held to have cast his lot with his fellow conspirators and to have taken
his chances that things may go awry and that the offended party may resist or third persons
may get killed in the course of implementing the basic criminal design. To free himself from
such criminal liability, the law requires some overt act on the part of the conspirator, to seek to
prevent commission of the second or related felony or to abandon or dissociate himself from
the conspiracy to commit the initial felony. 17
In the instant case, while the failure to flee may perhaps be regarded as a negative overt act,
such "disavowal" came too late, having manifested itself after, and not before or during, the
consummation of the robbery and the slaying. In legal contemplation, there was no longer a
conspiracy to be repudiated nor an unlawful killing which could have been prevented since
the conspiracy and the killing had already materialized. The locus penitentiae, i.e., appellant's
opportunity to purge herself of criminal liability, had already passed. Appellant insists that her
life was threatened by Roel Punzalan who poked into her back what she believed was a
sharp instrument, when she discovered the robbery and assault being carried out. She says
that that circumstance effectively prevented her from doing anything to forestall or prevent the
perpetration of the crime. The difficulty with this defense is not merely that there is nothing to

support it except Marieta's own word. That word, when taken in the context of all the other
circumstances, especially her failure to raise the alarm long after the doers of the crime had
left, is simply insufficient to nullify the prosecution's case. Appellant's word was not believed
by the trial judge. Judge Jaramillo, who was presiding when the defense presented its case
and who wrote the decision with the benefit of observing her demeanor in court, 18 was unable
to accept appellant's statement that she had been coerced into silence by Roel Punzalan.
There is no basis in the record for setting aside this conclusion on the part of the trial judge, a
conclusion to which we must accord appropriate deference.
We turn to the appreciation of the qualifying and aggravating circumstances attending the
commission of the crime. Marieta assails the finding by the trial court of the qualifying
circumstance of evident premeditation. However, the record shows not only the time when the
accused determined or at least last conferred on the commission of the crime, but also acts
which manifestly indicated that the appellant and her co-accused had clung to their
determination to commit the crime. An interval of seven (7) or eight (8) hours had taken place
between the meeting of the co-accused and Marieta's summoning of Roel Punzalan and Jose
Besida into the Fule house, an interval of time sufficient to allow appellant and her coconspirators to reflect upon the consequences of their acts.
Nocturnity was correctly appreciated because it was purposely sought by the conspirators to
afford impunity and to facilitate both the execution of the crime and their escape. 19 They not
only timed the robbery to coincide with the absence of Judge Fule; they also chose to strike
late that night to ensure that the victim would be alone in her bedroom and unable to resist or
to flee.
Abuse of superior strength was similarly correctly appreciated. There was great variance in
the relative physical condition of the assailants and of the victim: two adult males as against
an old lady suffering from hypertension; the assailants were armed with bladed and blunt
instruments while the victim was alone and unarmed and in no position to defend herself; and
the great violence inflicted upon the victim, as indicated by the number and location of her
wounds, all indicate the presence of the circumstance of abuse of superior strength.
Upon the other hand, disregard of age, rank, or sex was incorrectly appreciated by the trial
court. This circumstance was absorbed in abuse of superior strength. Moreover, disregard of
age, rank, or sex is relevant only in crimes against persons; the instant case involves robbery
with homicide, a felony classified as a crime against property, the homicide being regarded as
incidental to the robbery. 20
Dwelling should also have been disregarded because the accused (except Domingo
Mendoza) all resided in the servants' quarter of Mrs. Fule's residence. The servants' quarter
may be assimilated to the victim's house, the former being an appendage of, or attachment
to, the latter.
Under Article 294 of the Revised Penal Code, any person guilty of robbery with the use of
violence against or intimidation of persons shall suffer the penalty of reclusion perpetua to
death when, by reason or on the occasion of the robbery, the crime of homicide shall have
been committed. Article 63 paragraph 2 of the same Code provides, among other things, that
when there is at least one aggravating circumstance attending the commission of the crime,

the imposable penalty is death. Since death is not an enforceable penalty under our
Constitution, the appropriate penalty is reclusion perpetua.
WHEREFORE, the decision of the trial court dated 22 May 1987 is hereby AFFIRMED,
except that the civil indemnity for the victim's death is hereby increased to P50,000.00 in line
with recent jurisprudence of the Court. 21
SO ORDERED.
EN BANC

G.R. No. L-69576 November 19, 1985

CICERO J. PUNSALAN, etc., petitioner,

vs.
MINISTER ESTELITO P. MENDOZA, etc., respondent.

Cicero J. Punzalan and Juan T David Cesar C. Carreon and Diosdado Rongcal for petitioner.

Felix Q. Antonio Jose Africa and Eduardo Hernandez for respondent.

Wilfredo R. Mutuc for intervenor R. Nepomuceno.

DE LA FUENTE, J.:

Petition for quo warranto and prohibition seeking inter alia the ouster of the respondent, Hon. Estelito
P. Mendoza, from the governorship of Pampanga. It is alleged that petitioner Cicero J. Punsalan is the
rightful Governor and that he is suing the respondent as ex-governor . . . who returned to his old post
while being occupied by petitioner, 1 respondent having already lost his seat by his own acts. 2

A motion for intervention was filed by counsel for Robin Nepomuceno, 3 senior member of the
Sangguniang Panglalawigan who took his oath of office as Vice-Governor after the petitioner began
discharging the duties of the Governor. Petitioner subsequently manifested his conformity to said
motion 4 which was granted by this Court. 5 At the hearing of this case, petitioner appeared and argued
in his own behalf. Respondent likewise appeared, submitting personally his arguments on the issues
raised. 7 Counsel for the intervenor also briefly argued in his behalf. 8 Various pleadings and
memoranda were thereafter filed by the parties This case was deemed submitted for decision when the
petitioner filed on May 2, 1985, a manifestation that he will not file any rebuttal to the rejoinder in
order not to cause a delay in the speedy resolution of this case. 9

Brushing aside the minutiae the bare facts and circumstances are the following: As official KBL **
bets for Governor and Vice-Governor in the 1980 local elections, the respondent and the petitioner
easily vanquished the other aspirants. 10 Accepting the mandate from the people of Pampanga, they
took in due time their oaths of office, discharging thereafter the duties and responsibilities of Governor
and Vice-Governor, respectively. However, in the 1984 national elections for provincial/city/district
representatives to the Batasan, three opposition candidates received the blessings of the electorate. The
only KBL survivor placed fourth. Apparently jolted by the results, the respondent (who was KBL
campaign manager) tendered on May 17, 1984, his resignation from the Governorship and his Cabinet
post, 11 effective at the Presidents pleasure. 12 On June 30, 1984, or about six weeks later, the
President appointed the respondent Minister of Justice and, on July 14, 1984, concurrently Member of
the Batasang Pambansa, 13

On July 13, 1984, it appears, respondent again tendered his resignation as Governor of the Province of
Pampanga, effective at the pleasure of the President. 14 On July 16, 1984, he sent a letter 15 to the
Minister of local Government, Hon. Jose A. Roo, requesting that he be considered on leave of
absence while the matter was pending consideration by the President. On July 20, 1984, he received
the Ministers reply approving his request. 16 On July 21, 1984, According to the respondent, he
advised the petitioner to assume temporarily the performance of the duties and functions of the
Governor. 17 Whereupon the petitioner took his oath of office on July 23, 1984, before the Provincial
Attorney, as Gobernador ng Pampanga (not Acting Governor), 18 relying on an alleged press release
in the July 23, 1984-issue of Bulletin Today, that the inhibition against Batasan Members from
holding two elective positions is a constitutional provision which cannot be compromised, but it
allows the holding of two positions if the Batasan Member is appointed Prime Minister or Member of
the Batasan 19 Petitioner was able to discharge all the powers and functions of Governor until the
end of the year.

The controversy erupted on January 8, 1985, when petitioner was informed by his wife at about 2:00
oclock P.M., in Angeles City where he was the guest speaker at the induction ceremonies of a rural
bankers federation, that respondent unexpectedly appeared and occupied the [governor's] office . . .
20 Earlier, he already learned by radio, while inspecting an area razed by fire in Sexmoan Pampanga,
that soldiers had gathered at the Provincial Capitol grounds. 21 He immediately denounced the
takeover, alleging it was a forcible entry coup d etat style . . . without prior notice to petitioner. 22

The respondent avers, in his comment, that he reassumed the position of Governor . . . peacefully and .
. . without the use of force or pressure [and] . . . was welcomed by the employees, adding that it was
an implementation of the KBL caucus recommendation approved by the President. 23

At this point, it is pertinent to note that on January 7, 1985, soon after receipt of notice of the said
approval, the respondent immediately wrote Minister Roo to apprise him of his intention to reassume
the governorship and to request that the Ministrys Regional Director as well as the petitioner be
advised accordingly. 24 On the same day, Minister Rollo wrote three letters to notify them and also,
the intervenor that the respondent would reassume the governorship on January 8th 25 According to
the petitioner, the letter addressed to him was received by his office on January 8, 1985, at 1:35 p.m
26 Incidentally, respondent resigned from his Batasan membership on January 8, 1985, which
resignation was accepted by the President two days later. 27

We have carefully examined the pleadings and the lengthy memoranda and annexes thereof, in the light
of the submission and oral arguments ventilated at the hearing of this case. The issues presented to this
Court boil down to one determinative question: Can the respondent validly reassume the governorship
of Pampanga after having tendered his resignation therefrom and having accepted an appointment as
Minister of Justice as well as an appointive Batasan seat?

Petitioners contention. NO.-Reasons: (a) Respondent permanently vacated the Governors office as a
result of his resignation and its implied acceptance by the President, and of abandonment when he
failed to discharge the duties and responsibilities of the office from July 23, 1984 up to January 7,
1985; (b) Respondents reassumption is an unlawful usurpation of the powers and functions already
being exercised by the petitioner as Governor by right of succession; (c) Respondent had forfeited his
right and title to the office when he accepted his appointment as Minister of Justice and that of
appointive Batasan Member because of the incompatibility of the positions with the Governors
office (Section 10, Art. VIII of the Constitution).

Respondents submission.-YES because: (a) The resignation effective at the pleasure of the President
was not accepted expressly or impliedly by the President; it was implicitly rejected; (b) The alleged
abandonment of office is predicated on the erroneous assumption that he just left the Governors post
without any leave of absence. 28 He was granted such leave pending consideration of his
resignation; (c) It cannot be said that he clearly intended to absolutely relinquish the governorship
during his absence; he asked petitioner merely to exercise temporarily the Governors duties and
functions; (d) As Governor, respondent is eligible for appointment as Cabinet Member pursuant to
Section 4(l), Article XII-B. As such Cabinet Member, he may subsequently be chosen to serve in the
Batasan in accordance with Section 2, Art. VIII; and (e) The provision cited by the petitioner applies to
an elective Batasan Member, but not to a Cabinet Member whose membership in the Batasan is
temporary in nature. The disqualifications of a Cabinet Member are those specifically mentioned in
Section 7 of Article IX, as amended; it no longer includes by reference Section 10 . . . of Article VIII.

We find the petitioners conclusions factually and legally untenable.

To begin with, neither the alleged implied acceptance of the respondents resignation nor the imputed
abandonment of office has any factual support in the record. There was a tender of resignation
effective at the pleasure of the President. Obviously, it was not meant to be effective immediately;
acceptance was still necessary. 29 Abandonment by the incumbent of his office before acceptance of
his resignation is punishable under the Revised Penal Code. 30 Petitioner claims that there was
implied acceptance of said resignation. It appears, however, that action thereon was held in abeyance.
The President, apparently, needed more time to consider the validity of the view submitted by the
respondent in his memorandum, 31 and confidential letter. 32 As Governor, the respondent contended,
he can be appointed Cabinet Minister and, as such, assigned later to the Batasan without forfeiting the
governorship. When the President finally acted, he shelved the resignation, approving instead the KBL
caucus recommendation for the respondent to reassume the governorship. Plainly, abandonment cannot
be inferred from the conduct of the respondent. There was abandonment, petitioner believes, because
respondent failed to discharge the Governors duties for a period of more than five (5) months without
any leave of absence. 33 This is belied, however, by the Local Government Ministers approval of the
request of the respondent that he be considered on leave of absence while his resignation was
pending consideration by the President. 34 It now appears that the petitioner was totally unaware of
this important detail when he assumed office as Gobernador ng Pampanga, and even at the time of
the filing of the instant petition. His naked claim that the said approval of the respondents leave is
highly suspicious and dubious 35 is neither proof nor sufficient showing that the same is spurious.
Good faith and the regularity in the performance of official duty are always presumed, in the absence of
clear and convincing proof to the contrary.

This brings us to the pivotal legal issue.

As Provincial Governor, an elective official, respondent is eligible for appointment to the Cabinet
pursuant to Section 4(1), Article XII-B, to wit:

SEC. 4(1). Unless otherwise provided by law, no elective official shall be eligible for appointment to
any office or position during his tenure except as Member of the Cabinet. 36

But it is insisted by petitioner: If a cabinet member is appointed to the Batasan and becomes a member
thereof . . . Section 10 of Article VIII applies to him. It is that simple. 37

We do not agree.

The provision cited by the petitioner reads as follows:

SEC. 10. A Member of the Batasang Pambansa shall not hold any other office or employment in the
Government, or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations, during his tenure except that of Prime Minister, Member of the Cabinet or
Deputy Minister. Neither shall he, during the term for which he was elected, be appointed to any civil
office which may have been created or emoluments thereof increased while he was a Member of the
Batasang Pambansa.

The petitioner relies on the broad or general import of the first prohibition which provides that That
Member of the Batasan cannot hold any other office or employment in the Government, etc., except
the four positions therein specifically mentioned.

Taking into account its context, however, as well as the pertinent and related constitutional provisions,
it is quite clear that the said prohibition may not be construed and applied broadly or expansively. The
Constitution itself divided the Batasan membership into three categories: The elective
provincial/city/district representative; the sectoral representatives who are either elected or selected as
may be provided by law; and those chosen from Members of the Cabinet. 38 It is our opinion that
the prohibition in question does not extend to the third group of members, those chosen from the
Cabinet.

In the first place, the second prohibition in said Section 10, which also refers to the same member of
the Batasan forbidden by the first sentence from holding concurrently any other office or
employment, etc., is quite explicit:

. . . Neither shall he, during the term for which he was elected, be appointed to any civil office which
may have been created or emoluments thereof increased while he was a Member . . . (Emphasis
supplied.)

Both prohibitions, undoubtedly, deal with a Member who enters the Batasan primarily as a legislator
voted into office by the electorate of his constituency, the elected provincial or city or district
representative with a fixed term (6 years) of office. 39

Secondly, this conclusion is supported by the history of Section 10 (Art. VIII) and the constitutional
amendments adopted after 1973. The two prohibitions were intended by the framers of the 1973
Constitution to apply only to the members of the National Assembly, an all-elective parliamentary
body. Of course, said section was then made applicable also to Cabinet members by virtue of Section 8
(now 7) of Article IX, which expressly incorporated those prohibitions in the following tenor:

SEC. 8. The Prime Minister and the Members of the Cabinet shall be subject to the provisions of
Sections ten and eleven of Article VIII hereof and may not appear as counsel before any court or
administrative body or participate in the management of any business, or practice any profession.
(Emphasis supplied.)

But as amended in April 1981, such specific reference to section ten was deleted. In lieu thereof, the
phrase and shall also be subject to such other disqualifications . . .was added, to wit:

SEC. 7. The Prime Minister and the Members of the Cabinet shall be subject to the provisions of
Section 11, Article VIII hereof and may not appear . . . and shall also be subject to such other
disqualifications as may be provided by law. 40 (Emphasis supplied.)

It may be pointed out, parenthetically, that one of the 1976 amendments (which provided for an interim
Batasang Pambansa in lieu of the interim National Assembly) included this provision: the Cabinet
shall be subject only to such disqualifications as the President (Prime Minister) may prescribe . . .
Thus, even before 1981, Section 10 (Art. VIII) was not meant to apply ex proprio vigore to Cabinet
Members assigned to sit in the interim Batasan in accordance with Amendment 1. Such assignment was
not deemed equivalent to holding an office separate from and independent of their cabinet posts. The
1981 amendment, deleting from Section 8 (now 7) of Article IX the aforementioned reference to
section ten . . . of Article VIII hereof, makes it self-evident that it does not extend to, and cannot
embrace within its purview such Members of the Cabinet.

Thirdly, there are valid reasons for the distinction. The Cabinet representatives to the Batasan differ
in many respects from the regular Batasan Members: the elective provincial/city/district
representatives. The latter, inter alia, (a) are voted into office for a fixed term of 6 years by the

electorate of the political subdivisions or units thereof that they respectively represent; (b) the Speaker
is elected from among the elected provincial, city and district representatives; 41 (c) it is mandated
that a majority of the Members of the Cabinet who are heads of Ministries shall come from the
elective provincial, city or district representatives; 42 (d) they do not vacate their Batasan seats in
case of resignation from their Cabinet posts for any cause; 43 and (e) pursuant to the prohibitions in
Article VIII, these elective Batasan Members may appear before a court with appellate jurisdiction but
are forbidden from appearing as counsel before any court in any civil case wherein the government or
any subdivision, agency or instrumentality thereof is the adverse party, or in any criminal case wherein
any officer or employee of the government is accused of an offense committed in relation to his ffice,
or before any administrative body,

On the other hand: (a) Cabinet Members with Batasan assignments do not serve for a fixed term but at
the pleasure of the President and they simply represent the Cabinet instead of a province or similar
constituency; (b) they can not qualify for election to the Speakership; (c) they belong to the minority of
Cabinet Members who are heads of Ministries; (d) they ipso facto vacate their Batasan seats upon
resignation or separation from their Cabinet posts; and (e) a Cabinet Member cannot appear as counsel
before any court . . . or take part in the management of any business, or practice any profession, and is
also subject to such other disqualifications as may be prescribed by law, as explicitly provided in
Section 7, Article IX.

Fourthly, reciprocal representation in two branches the executive and the legislative-of the government
is a feature of our present modified Presidential or semi-parliamentary system, resulting in the
modification to a certain extent of the principle of separation of powers. At least half of the Cabinet
positions with Ministries are allocated to and occupied by the elective Batasan Members. Nonelective Cabinet Members, on the other hand, are assigned to Batasan seats to represent the Cabinet
(which is responsible to the Batasan for the program of government ) 44 Nonetheless, for purposes
of the disqualification clause, Cabinet Minister given such legislative assignment remains primarily a
Cabinet Member who serves in the Batasan in an ex officio capacity or as a mere incident of his
membership in the Cabinet.

Needless to state, we find it inadequate to consider just the broad connotation of the word member
found in the first prohibition of Section 10, Article VIII. Resolution of the issue raised calls for a
different approach, especially so because the respondent-unlike the elected provincial/city/district
representatives is one of several Cabinet Members who sit in the Batasan not because of an electoral
mandate but by reason of his Cabinet membership. One of the duties of a Cabinet Member is to serve in
the Batasan if so directed by the President. We see no other constitutional provision which would
operate to restrict or limit the Presidents choice as to such Cabinet representatives to the Batasan. A
local government executive drafted into the Cabinet because of competence may be given such
assignment if, in the judgment of the President, he can effectively espouse and defend in the Batasan
the Cabinets program of government. This is in consonance with the rule that constitutional
provisions should be coordinated, harmonized and so construed in order to give effect to all of them,
after reconciling apparent conflicts. 45

The root cause of this controversy may be traced to the oath taking of the petitioner as Gobernador ng
Pampanga (not Acting Governor) on July 23, 1984, without waiting for the formal acceptance of the
respondents resignation. Petitioner misread a newspaper item mentioned earlier and was misled into
believing that there was an implied acceptance thereof. The so-called press release, however, merely
attributed to the President a statement to the effect that a Governor (or City Mayor) who was elected to
the Batasan cannot hold two elective positions. This is correct as held recently by this Court in
Pacana us. Adaza 46 a case involving a Governor who got himself elected Mambabatas Pambansa and
qualified as such, and who wanted also to retain his elective governorship. It is not so in the instant
case.

WHEREFORE, the petition should be, as it is hereby, dismissed. No costs.

IT IS SO ORDERED.

Plana, Gutierrez, Jr., Cuevas, Alampay and Patajo, JJ., concur.

Makasiar, C.J. and A bad Santos, J., took no part.

Aquino, J., I concur. Minister Mendoza did not cease to be Governor because his resignation was not
accepted. His appointment to the Batasan did not mean his disqualification from continuing as
Governor because section 10 of Article VIII of the Constitution applies only to elected Batasan
members, not to appointive Members. Concepcion Jr., J., in the result.

Escolin J., I reserve my vote in a separate opinion.

Relova, J., is on leave.

Read case digest here.

Separate Opinions

TEEHANKEE, J., dissenting:

I am constrained to dissent from the majority decision in virtue of the imperative considerations that
militate against its validity and correctness, as follows:

1. Controlling precedent of Adaza vs.Pacan, Jr. 1 The majority decision is deafeningly silent (but for a
passing mention at the end) about this controlling precedent re the Misamis Oriental governorship
resolving the self-same issue per a unanimous court 2 just last March 18th of this year ruling that the
Constitution creates an incompatibility between the two positions of member of parliament and
provincial governor and consequently the governors assumption of his seat as MP in the Batasan
Pambansa operated to vacate his former post and he cannot now continue to occupy the same nor
attempt to discharge its functions. Therein respondent (former vice-governor) Pacanas assumption of
the governorship was upheld against therein petitioner MP Adaza who was held to have vacated the
governorship. The rationale of the said controlling precedent is clear and unambiguous and is fully
applicable to the case of the Pampanga governorship here in question, mutatis mutandis

The constitutional prohibition against a member of the Batasan Pambansa from holding any other
office or employment in the government during his tenure is clear and unambiguous. Section 10,
Article VIII of the 1973 Constitution provides as follows:

Section 10. A member of the National Assembly [now Batasan Pambansa) shall not hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, during his tenure, except that of prime
minister or member of the cabinet. . . .

The language used in the above-cited section is plain, certain and free from ambiguity. The only
exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom or
expediency of the said provision is a matter which is not within the province of the Court to determine.

A public office is a public trust. It is created for the interest and the benefit of the people. As such, a
holder thereof is subject to such regulations and conditions as the law may impose' and 'he cannot
complain of any restrictions which public policy may dictate on his holding of more than one office.' It
is therefore of no avail to petitioner that the system of government in other states allows a local elective
official to act as an elected member of the parliament at the same time. The dictate of the people in
whom legal sovereignty lies is explicit. It provides no exceptions save the two offices specifically cited
in the above-quoted constitutional provision. Thus, while it may be said that within the purely
parliamentary system of government no incompatibility exists in the nature of the two offices under
consideration, as incompatibility is understood in common law, the incompatibility herein present is
one created by no less than the constitution itself. In the case at bar, there is no question that petitioner
has taken his oath of office as an elected Mambabatas Pambansa and has been discharging his duties as
such. In the light of the oftmentioned constitutional provision, this fact operated to vacate his former
post and he cannot now continue to occupy the same, nor attempt to discharge its functions. 3

2. The President himself cited the constitutional inhibition and the case of respondent Mendoza "who
had to resign as governor of Pampanga in order to assume his cabinet position and his membership in
the Batasan. " This was duly reported in the established press which invariably reproduces in toto and
maintains close liaison with the government's Ministry of public information. Thus, the largest
circulation daily, the Bulletin Today reported in its issue of July 23, 1984 the President's confirmation
of the resignation of respondent Mendoza as governor:

President Marcos said yesterday that the inhibition against Batasan members from holding two elective
positions simultaneously is a constitutional revision which cannot be compromised.

The President said that this issue affects some members of both the ruling Kilusang Bagong Lipunan
(KBL) and the opposition parties.

The charter provision, however, allows the holding of two positions if the Batasan member is appointed
Prime Minister or member of the Cabinet, he said.

The President said: 'Let it be known that this position is dictated by law. It is not dictated by your
whims and caprices. I t is such that the law does riot allow one to hold two positions at the same time.

The President cited the case of Justice Minister Estelito Mendoza who had to resign as governor of
Pampanga in order to assume his Cabinety position and his membership in the Batasan. 4

Be it noted that such report of the unconditional and unqualified resignation of respondent in order to
assume his new national offices of Minister of Justice and MP (as per his letter of July 13, 1984 to the
President) was never denied nor repudiated much less was the claim made as now belatedly asserted
post litem motam, that he wrote three days later on July 16, 1984 to the Minister of Local Government
(not to the President) "requesting that he `be considered on leave of absence' while the matter [of his
resignation] was `pending consideration by the President. 5 Albeit, such resignation was forthwith
accepted by the President, as above stated.

3. The Presidents action accepting respondent Mendozas resignation is binding on all subordinates
and government entities.- All subsequent events bore this out. The President appointed Respondent on
June 30, 1984 as Minister of Justice. On July 13, 1984, respondent tendered his resignation as governor
and on the next day, July 14th, the President appointed respondent concurrently as Member of the
Batasan Pambansa. On July 21, 1984, respondent advised petitioner to assume the governorship of
Pampanga effective July 23, 1984, when the Batasan Pambansa would convene and respondent would
take his oath and assume the office of MP, saying that he would not want his Office of Ministry of
Justice to be involved in a controversy regarding dual positions, specially because it is his said office
which rules on said controversy and issues arising therefrom for administrative purposes. 6 On July 23,
1984, Respondent did assume office as member of parliament and was named chairman of the Batasan
Committee on Justice. On the same date, July 23, 1984, the President announced thru the established
press his acceptance of petitioners resignation from the governorship (as per the above-quoted press
item) in order to assume his cabinet position and his membership in the Batasan. On the same date
also, July 23, 1984, petitioner did assume the office of governor of Pampanga after taking his oath of
office and since then occupied and discharged the said office and functions of governor. On July 27,
1984, intervenor Robin Nepomuceno, as senior member of the Sangguniang Panlalawigan of
Pampanga, then took his oath and assumed the office of vice-governor, succeeding pursuant to law to
the said office vacated by petitioner Punsalan. In August 1984, the President, upon recommendation of
respondent, appointed Atty. Orlando Santiago as acting member of the Sangguniang Panlalawigan to
fill the resulting vacancy. They were all duly recognized as such by all the national officers including
respondent as well as in the province, particularly by the Ministry of Local Government. They
collected and were paid all emoluments and salaries appertaining to the new positions to which they
had succeeded. It is readily clear that respondent Mendoza had totally, unqualifiedly and
unconditionally vacated and resigned his old position of governor. Respondent had to so resign and
give up the governorship when he accepted and assumed the incompatible office of member of
parliament. The President himself so announced and such pronouncement binds all executive offices
and subordinates. Respondent could not validly and legally by the mere act of resigning his
membership from the Batasan Pambansa on January 8, 1985 claim to retake and reassume the position
of governor which he had long vacated, just like MP Adaza can not do so with respect to the Misamis
Oriental governorship which he had vacated. There is no office to take back or reassume. The mere fact
that respondent resigned his office of Member of Parliament when he took back the governorship on
January 8, 1985 without due process shows per se that he realized the constitutional incompatibility
between the two offices-ust as over six months earlier on July 13, 1984, he resigned as governor upon
his appointment as Member of Parliament.

4. The concave and convex distinctions sought to be drawn by respondent between elected and
appointed members of parliament are irrelevant and at any rate untenable.-We start from the
indubitable fact of the Presidents acceptance of respondents resignation as governor upon his
assumption of the office of the Minister of Justice and concurrently member of parliament. It is
elementary that such acceptance requires no particular formalities. The mere constitutional
incompatibility between the offices, as declared by the President himself, and confirmed by this Court
in Adaza is more than sufficient manifestation of such acceptance of respondents resignation from the
governorship. He thereby lost all title and right to the governorship, and could not claim at will to
reassume or take over from his legal successor, petitioner Punsalan. The distinctions drawn by the
majority decision between an elected and appointed member of parliament are irrelevant, by virtue of
the established fact of the Presidents publicly announced acceptance of his resignation as governor as
confirmed in the newspapers. Actually, such acceptance was unnecessary and even superfluous, since
the constitutionally incompatible position of MP and local governor cannot be validly held at the same
time by one man. Respondents resignation of the governorship was the manifestation of his choice to
serve as he did serve, as MP and Cabinet member. The forced interpretation given in the majority
decision which would emphasize irrelevant distinctions between an elected, an appointed and an
anointed (chosen) MP 7 in relation to Article VIII, Section 10 of the Constitution 8 does not carry
the day for respondent.

5. Respondent cannot be governor and MP at the same time-Petitioners submittal is simple. Under the
Constitution, there is a general ban against holding multiple offices by elective officials. No elective
official (governor) is eligible for appointment to any office except as cabinet member. 9

When respondent, as cabinet member, was appointed MP in the Batasan, he fell also under the general
ban in the Constitution against MPs holding any other office or employment except the then express
exemptions therein (Prime Minister, cabinet member or deputy minister). Under both prohibitons,
respondent could not be a governor and MP at the same time. Hence, he resigned permanently as
governor upon his appointment as MP and could not by afterwards resigning as MP ressume the
governorship he had vacated.

1. There is no factual and legal basis for the majority decisions non-agreement with petitioners
simple submittal. Its burden is that the Constitutional ban does not apply to an appointed MP, as
distinguished from an elected MP. But the Constitution makes no such distinction. The ban is against
any MP. Ubi lex non distinguit, nec nos distinguere debemus. 10 The citing of the second prohibition
in the second sentence that the MP may not during the term for which he was elected be appointed to
any civil office created or whose emoluments were increased while he was an MP does not justify any
distinction between elected and appointed MPs. Certainly, this second prohibition is equally applicable
to appointed MPs. The mention of the term for which he was elected merely delimits the duration of
the prohibition and equally applies to appointed MPs. At most if a distinction were to be insisted upon,
it would be to hold that the appointed MPs are not bound by the second prohibition, i.e. they may be
appointed to new civil offices created or with emoluments increased while they were MPs as soon as
they resign as MPs regardless of the non-expiration of the regular six-year term of MPs under Art.

VIII, section 3, which likewise makes no distinction between elected and appointed MPs. To so hold
would nullify the constitutional ban as against appointed MPs-a manifestly mischievous and absurb
interpretation. There is no conceivable reason why appointed MPs would have more privileges and
less restiction and public accountability than the elected MPs.

6. The extensive Melencio-Herrera dissenting opinion starlingly shows that contrary to the general
impression given the alleged 1984 amendment of the general ban against elective officials holding any
other office so as to allow appointment f to the cabinet was never proposed to nor approved by the
people.-Mme. Justice Melencio-Herrera in her detailed opinion (herein adopted and endorsed by
reference) shows beyond that his questionable amendment was nowhere included in BP Blg. 643
implementing the constituent power to propose constitutional amendments nor was it ever included in
the plebiscite ballot nor in the Comelecs certificate of canvass. he net result is to leave sec. 4(l) of
Article XII-B as it was after its amendment in the 1981 plebiscite allowing as an exception appointment
as member of the Executive Committee which would succeed the incumbent President). But since the
executive Committee had been dismantled and abolished with the January 27, 1984 amendments, the
end result was to leave The section in its original and pristine text banning without exemption
appointment of elective officials to any other office or position, including that of cabinet member.
Therefore, as per her vote, respondent minister of justice should be held as having technically
abandoned the position of governor of Pampanga [upon his acceptance of the office of justice minister,
rescinding from his resignation as governor] and . . .he cannot now replace petitioner in the
governorship. 11

7. Both under the Constitution and the law (the Civil Service Decree), the concurrent holding of
multiple government offices or positions (such as that of MP and governor) is prohibited, save for the
few exceptions already mentioned. The appointment in July, 1984 of respondent (then governor)
Mendoza as MP could not be validly effected, unless he vacated the first office of governor. The texts
of the constitutional prohibitions or creation of incompatibility of double or multiple positions are set
forth hereinabove. 12 The law itself per the Civil Service Decree (P.D. 807) likewise imposes such a
general ban:

SEC. 44.-Limitation on Appointment. (1) No elective official shall be eligible for appointment to any
office or position during his term of office.

8. By virtue of the constitutional, legal and physical incompatibility of the offices held by respondent
with that of governor, his acceptance in July, 1984 of the second and third offices of cabinet member
and MP vacated the first office of governor which he publicly yielded to petitioner. -This is settled in
American and Philippine jurisprudence. The constitutional and legal incompatibility of the offices in
question has already been hereinabove discussed.

The rule that physical impossibility to perform the functions of the two or more offices held constitutes
legal incompatibility. The rule is founded on logic common law and common sense.

It is based on public policy. Public policy requires that any one accepting and retaining a public office
should not place himself, by the accepting of another office, in such a position that it is physically
impossible for him properly to perform the duties of both offices, and if the nature of the two offices is
such that such impossibility does appear, the offices are incompatible and the acceptance of the
second office, ipso facto, vacates the first. Perkins vs. Manning, 122 p. 857.

. . . What, then, does constitute incompatibility in offices? In 5 Bac,-Abr Title Offices K, we find the
rule laid down, upon the authority of Lord Coke, in these words: Offices are said to be incompatible
and inconsistent, so as to be executed by the same person, when, from the multiplicity of business in
them, they cannot be executed with care and ability, . . .(Emphasis supplied)

This Court adopted this rule in Nacionalista Party vs. Bautista 13 wherein it was held that . . . the
permanent office of the respondent [referring to the position of Solicitor General] may not, from the
strict legal point of view, be incompatible with the temporary one [membership in the Commission on
Elections) which he has been designated, tested by the nature and character of the functions he has to
perform in both offices, but in a broad sense there is an incompatibility, because his duties and
functions as Solicitor General require that all his time be devoted to their efficient performance.
Nothing short of that is required and expected of him.

In Zandueta vs. de la Costa, 14 this Court likewise held that "when a judge of first instance, presiding
over a branch of a Court of First Instance of a judicial district by virtue of a legal and valid
appointment, accepts another appointment to preside over the same branch of the same Court of First
Instance, in addition to another court of the same category, both of which belong to a new judicial
district formed by the addition of another Court of First Instance to the old one, enters into the
discharge of the functions of his new office and receives the corresponding salary, he abandons his old
office and cannot claim to be entitled to repossess it.

The broader test holds that "incompatibility of offices exists where there is conflict in the duties of the
offices, so that the performance of the duties of the one interferes with the performance of the duties of
the other. They are generally considered incompatible where such duties and functions are inherently
inconsistent and repugnant, so that because of the contrariety and antagonism which would result from
the attempt of one person to discharge faithfully, impartially and efficiently the duties of both offices,
considerations of public policy render it improper for an incumbent to retain both, 15 Under this test,
respondent himself realized such conflict and contrariety when he told petitioner upon turning over the
governorship that "he would not want his Office of Ministry of Justice to be involved in a controversy

regarding dual positions, specially because it is his said office which rules on said controversy and
issues arising therefrom for administrative purposes. 16 This was shown all the more when respondent
ruled in his own favor in effect when in January, 1985 he 'Reassumed the position of governor'. . . (in)
implementation of the KBL Caucus recommendation approved by the President, 17 instead of
disqualifying himself as a protagonist in view of the serious constitutional and legal obstacles,

American jurisprudence likewise hold that by respondent's acceptance and qualification for the
constitutionally incompatible office of MP, he vacated and resigned the first office of governor.

At common law, and under constitutional and statutory prohibitions against the holding of incompatible
offices, a person who accepts and qualifies for a second and incompatible office is generally held to
vacate. or by implication resign, the first office, so that no judicial proceedings are necessary to
determine the title. The successor may at once be elected or appointed, although if the former occupant
refuses to vacate the office, his successor may be compelled to take the necessary legal steps to oust
him.

xxxxxxxxx

The rule that acceptance of a second office operates to vacate one already held, when not declared by
positive provision of law, seems to be based on a presumption of choice between the two offices as
evidenced by the acceptance of the second. It is a certain and reliable rule, and one that is indispensable
for the protection of the public. For the public has a right to know, in this case of attempted
incompatible office holding which office is held and which surrendered, and it should not be left to
chance or to the uncertain whim of the officeholder to determine. 18

Respondent's second resignation from the second office of MP in no way nullified his first resignation
from the first office of governor nor restored any right to said office already vacated by him: "The
acceptance of a second office which the law regards as incompatible with one already held effects a
surrender of the first office. And so when the officer has been once inducted into the second office, his
subsequent resignation of that office does not ordinarily restore his right or title to the first. 19 It of
course follows that "when an office is once abandoned, the former incumbent cannot legally repossess
it even by forcible reoccupancy. 20

9. The Rule of law and cardinal requirements of due process require that respondent should have given
prior notice to petitioner of Es intention to "reassume" the governorship and in case of petitioner's,

refusal to turn over the office, take the necessary legal steps to recover the disputed office rather than
repossess it by physical reoccupancy, by having "a platoon of soldiers 'secure' the provincial capitol at
San Fernando before entering its premises Monday to announce his return. 21 A lessor-owner whose
property is detained by the occupant lessee. whose right or lease thereto is claimed to have ceased,
cannot forcibly take it over but must go to court to uphold his right to repossess the property. Much
more so should there be recourse to court and due process in case of a disputed right to public office, as
in the case at bar. Otherwise, there might ensure bloodshed and tragedy, as in the January 2, 1985
slaying of Zaragoza Mayor Rogelio Lagmay of Nueva Ecija and in other previous instances. 22 It is
imperative by way of example for the public good that the proper legal recourse be taken with prayer
for urgent relief by way of a preliminary mandatory or restraining order, if warranted. As Justice
Brande is enjoined: In a government of laws, existence of the government will be imperilled if it fails
to observe the law scrupulously. Our government is the potent omnipresent teacher, For good or ill, it
teaches the whole people by example.. . . If the Government becomes the lawbreaker, it breeds
contempt for the law, invites every man to become a law unto itself, it invites anarchy.23

ACCORDINGLY, I vote to grant the petition and to declare petitioner as having lawfully succeeded
respondent as governor of Pampanga.
SECOND DIVISION
G.R. No. 79182 September 11, 1991
PNOC-ENERGY DEVELOPMENT CORPORATION, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (Third Division) and DANILO MERCADO,
respondents.
Bacorro & Associates for petitioner.
Alberto L. Dalmacion for private respondent.

PARAS, J.:p
This is a petition for certiorari to set aside the Resolution * dated July 3, 1987 of respondent
National Labor Relations Commission (NLRC for brevity) which affirmed the decision dated
April 30, 1986 of Labor Arbiter Vito J. Minoria of the NLRC, Regional Arbitration Branch No.
VII at Cebu City in Case No. RAB-VII-0556-85 entitled "Danilo Mercado, Complainant, vs.
Philippine National Oil Company-Energy Development Corporation, Respondent", ordering
the reinstatement of complainant Danilo Mercado and the award of various monetary claims.
The factual background of this case is as follows:

Private respondent Danilo Mercado was first employed by herein petitioner Philippine
National Oil Company-Energy Development Corporation (PNOC-EDC for brevity) on August
13, 1979. He held various positions ranging from clerk, general clerk to shipping clerk during
his employment at its Cebu office until his transfer to its establishment at Palimpinon,
Dumaguete, Oriental Negros on September 5, 1984. On June 30, 1985, private respondent
Mercado was dismissed. His last salary was P1,585.00 a month basic pay plus P800.00 living
allowance (Labor Arbiter's Decision, Annex "E" of Petition, Rollo, p. 52).
The grounds for the dismissal of Mercado are allegedly serious acts of dishonesty committed
as follows:
1. On ApriI 12, 1985, Danilo Mercado was ordered to purchase 1,400 pieces of nipa shingles
from Mrs. Leonardo Nodado of Banilad, Dumaguete City, for the total purchase price of
Pl,680.00. Against company policy, regulations and specific orders, Danilo Mercado withdrew
the nipa shingles from the supplier but paid the amount of P1,000.00 only. Danilo Mercado
appropriated the balance of P680.00 for his personal use;
2. In the same transaction stated above, the supplier agreed to give the company a discount of
P70.00 which Danilo Mercado did not report to the company;
3. On March 28, 1985, Danilo Mercado was instructed to contract the services of Fred R. Melon
of Dumaguete City, for the fabrication of rubber stamps, for the total amount of P28.66. Danilo
Mercado paid the amount of P20.00 to Fred R. Melon and appropriated for his personal use the
balance of P8.66.
In addition, private respondent, Danilo Mercado violated company rules and regulations in the
following instances:
1. On June 5, 1985, Danilo Mercado was absent from work without leave, without proper turnover of his work, causing disruption and delay of company work activities;
2. On June 15, 1985, Danilo Mercado went on vacation leave without prior leave, against
company policy, rules and regulations. (Petitioner's Memorandum, Rollo, p. 195).

On September 23, 1985, private respondent Mercado filed a complaint for illegal dismissal,
retirement benefits, separation pay, unpaid wages, etc. against petitioner PNOC-EDC before
the NLRC Regional Arbitration Branch No. VII docketed as Case No. RAB-VII-0556-85.
After private respondent Mercado filed his position paper on December 16, 1985 (Annex "B"
of the Petition, Rollo, pp. 28-40), petitioner PNOC-EDC filed its Position Paper/Motion to
Dismiss on January 15, 1986, praying for the dismissal of the case on the ground that the
Labor Arbiter and/or the NLRC had no jurisdiction over the case (Annex "C" of the Petition,
Rollo, pp. 41-45), which was assailed by private respondent Mercado in his Opposition to the
Position Paper/Motion to Dismiss dated March 12, 1986 (Annex "D" of the Petition, Rollo, pp.
46-50).
The Labor Arbiter ruled in favor of private respondent Mercado. The dispositive onion of said
decision reads as follows:
WHEREFORE, in view of the foregoing, respondents are hereby ordered:

1) To reinstate complainant to his former position with full back wages from the date of his
dismissal up to the time of his actual reinstatement without loss of seniority rights and other
privileges;
2) To pay complainant the amount of P10,000.00 representing his personal share of his savings
account with the respondents;
3) To pay complainants the amount of P30,000.00 moral damages; P20,000.00 exemplary
damages and P5,000.00 attorney's fees;
4) To pay complainant the amount of P792.50 as his proportionate 13th month pay for 1985.
Respondents are hereby further ordered to deposit the aforementioned amounts with this Office
within ten days from receipt of a copy of this decision for further disposition.
SO ORDERED.
(Labor Arbiter's Decision, Rollo, p. 56)

The appeal to the NLRC was dismissed for lack of merit on July 3, 1987 and the assailed
decision was affirmed.
Hence, this petition.
The issues raised by petitioner in this instant petition are:
1. Whether or not matters of employment affecting the PNOC-EDC, a government-owned and
controlled corporation, are within the jurisdiction of the Labor Arbiter and the NLRC.
2. Assuming the affirmative, whether or not the Labor Arbiter and the NLRC are justified in
ordering the reinstatement of private respondent, payment of his savings, and proportionate
13th month pay and payment of damages as well as attorney's fee.

Petitioner PNOC-EDC alleges that it is a corporation wholly owned and controlled by the
government; that the Energy Development Corporation is a subsidiary of the Philippine
National Oil Company which is a government entity created under Presidential Decree No.
334, as amended; that being a government-owned and controlled corporation, it is governed
by the Civil Service Law as provided for in Section 1, Article XII-B of the 1973 Constitution,
Section 56 of Presidential Decree No. 807 (Civil Service Decree) and Article 277 of
Presidential Decree No. 442, as amended (Labor Code).
The 1973 Constitution provides:
The Civil Service embraces every branch, agency, subdivision and instrumentality of the
government including government-owned or controlled corporations.

Petitioner PNOC-EDC argued that since Labor Arbiter Minoria rendered the decision at the
time when the 1973 Constitution was in force, said decision is null and void because under
the 1973 Constitution, government-owned and controlled corporations were governed by the
Civil Service Law. Even assuming that PNOC-EDC has no original or special charter and
Section 2(i), Article IX-B of the 1987 Constitution provides that:

The Civil Service embraces all branches, subdivision, instrumentalities and agencies of the
Government, including government-owned or controlled corporations with original charters.

such circumstances cannot give validity to the decision of the Labor Arbiter (Ibid., pp. 192193).
This issue has already been laid to rest in the case of PNOC-EDC vs. Leogardo, 175 SCRA
26 (July 5, 1989), involving the same petitioner and the same issue, where this Court ruled
that the doctrine that employees of government-owned and/or con controlled corporations,
whether created by special law or formed as subsidiaries under the General Corporation law
are governed by the Civil Service Law and not by the Labor Code, has been supplanted by
the present Constitution. "Thus, under the present state of the law, the test in determining
whether a government-owned or controlled corporation is subject to the Civil Service Law are
the manner of its creation, such that government corporations created by special charter are
subject to its provisions while those incorporated under the General Corporation Law are not
within its coverage."
Specifically, the PNOC-EDC having been incorporated under the General Corporation Law
was held to be a government owned or controlled corporation whose employees are subject
to the provisions of the Labor Code (Ibid.).
The fact that the case arose at the time when the 1973 Constitution was still in effect, does
not deprive the NLRC of jurisdiction on the premise that it is the 1987 Constitution that
governs because it is the Constitution in place at the time of the decision (NASECO v. NLRC,
G.R. No. 69870, 168 SCRA 122 [1988]).
In the case at bar, the decision of the NLRC was promulgated on July 3, 1987. Accordingly,
this case falls squarely under the rulings of the aforementioned cases.
As regards the second issue, the record shows that PNOC-EDC's accusations of dishonesty
and violations of company rules are not supported by evidence. Nonetheless, while
acknowledging the rule that administrative bodies are not governed by the strict rules of
evidence, petitioner PNOC-EDC alleges that the labor arbiter's propensity to decide the case
through the position papers submitted by the parties is violative of due process thereby
rendering the decision null and void (Ibid., p. 196).
On the other hand, private respondent contends that as can be seen from petitioner's Motion
for Reconsideration and/or Appeal dated July 28, 1986 (Annex "F" of the Petition, Rollo, pp.
57- 64), the latter never questioned the findings of facts of the Labor Arbiter but simply limited
its objection to the lack of legal basis in view of its stand that the NLRC had no jurisdiction
over the case (Private Respondent's Memorandum, Rollo, p. 104).
Petitioner PNOC-EDC filed its Position Paper/Motion to Dismiss dated January 15, 1986
(Annex "C" of the Petition Rollo, pp. 41-45) before the Regional Arbitration Branch No. VII of
Cebu City and its Motion for Reconsideration and/or Appeal dated July 28, 1986 (Annex "F" of
the Petition, Rollo, pp. 57-64) before the NLRC of Cebu City. Indisputably, the requirements
of due process are satisfied when the parties are given an opportunity to submit position
papers. What the fundamental law abhors is not the absence of previous notice but rather the

absolute lack of opportunity to ventilate a party's side. There is no denial of due process
where the party submitted its position paper and flied its motion for reconsideration (Odin
Security Agency vs. De la Serna, 182 SCRA 472 [February 21, 1990]). Petitioner's
subsequent Motion for Reconsideration and/or Appeal has the effect of curing whatever
irregularity might have been committed in the proceedings below (T.H. Valderama and Sons,
Inc. vs. Drilon, 181 SCRA 308 [January 22, 1990]).
Furthermore, it has been consistently held that findings of administrative agencies which have
acquired expertise because their jurisdiction is confined to specific matters are accorded not
only respect but even finality (Asian Construction and Development Corporation vs. NLRC,
187 SCRA 784 [July 27, 1990]; Lopez Sugar Corporation vs. Federation of Free Workers, 189
SCRA 179 [August 30, 1990]). Judicial review by this Court does not go so far as to evaluate
the sufficiency of the evidence but is limited to issues of jurisdiction or grave abuse of
discretion (Filipinas Manufacturers Bank vs. NLRC, 182 SCRA 848 [February 28, 1990]). A
careful study of the records shows no substantive reason to depart from these established
principles.
While it is true that loss of trust or breach of confidence is a valid ground for dismissing an
employee, such loss or breach of trust must have some basis (Gubac v. NLRC, 187 SCRA
412 [July 13, 1990]). As found by the Labor Arbiter, the accusations of petitioner PNOC-EDC
against private respondent Mercado have no basis. Mrs. Leonardo Nodado, from whom the
nipa shingles were purchased, sufficiently explained in her affidavit (Rollo, p. 36) that the total
purchase price of P1,680.00 was paid by respondent Mercado as agreed upon. The alleged
discount given by Mrs. Nodado is not supported by evidence as well as the alleged
appropriation of P8.66 from the cost of fabrication of rubber stamps. The Labor Arbiter,
likewise, found no evidence to support the alleged violation of company rules. On the
contrary, he found respondent Mercado's explanation in his affidavit (Rollo, pp. 38-40) as to
the alleged violations to be satisfactory. Moreover, these findings were never contradicted by
petitioner petitioner PNOC-EDC.
PREMISES CONSIDERED, the petition is DENIED and the resolution of respondent NLRC
dated July 3, 1987 is AFFIRMED with the modification that the moral damages are reduced to
Ten Thousand (P10,000.00) Pesos, and the exemplary damages reduced to Five Thousand
(P5,000.00) Pesos.
SO ORDERED.
PNOC-EDC v. NLRC
Facts: Danilo Mercado, an employee of the Philippine National Oil Company Energy Development
Corporation, was dismissed on the grounds of serious acts of dishonesty and violation of company rules
and regulations allegedly committed as follows:
1. Withdrew P1680.00 from company funds, appropriated P680.00 for personal use and paid the nipa
supplier P1000.00.
2. Withdrew P28.66 as payment for the fabrication of rubber stamp but appropriated the P8.66 for
personal use.
3. Absence without leave and without proper turn-over thus disrupting and delaying company work

activities.
4. Vacation leave without prior leave.
Mercado filed a complaint against PNOC-EDC before the NLRC Regional Arbitration Branch. After
considerations of position papers presented by both parties, the labor arbiter ruled in favor of Mercado.
Issues:
1. Whether or not matters of employment of PNOC-EDC is within the jurisdiction of the labor arbiter
and the NLRC.
2. Whether or not the labor arbiter and the NLRC are justified in ordering the reinstatement of the
private respondent, payment of his savings, 13th month pay, and payment of damages as well as
attorneys fees.
Held:
The High Court affirmed the resolution of the respondent NLRC with modification: reducing moral
damages to P10000 and exemplary damages to P5000.
1. The test whether a government-owned or controlled corporation is subject to Civil Service Law is
the manner of its creation. Those created by special charter are subject to its provision while those
created under General Corporation Law are not within its coverage. The PNOC-EDC, having been
incorporated under General Corporation Law, is subject to the provisions of the Labor Law.
2. PNOC-EDCs accusations are not supported by evidence. Loss of trust or breach of confidence is a
valid ground for dismissing an employee, but such loss or breach must have some basis.

EN BANC

ELEAZAR P. QUINTO and

GERINO A. TOLENTINO, JR.,
Petitioners,

- versus -

COMMISSION ON ELECTIONS,
Respondent.

G.R. No. 189698

Present:

PUNO, C.J.,
CARPIO,
CORONA,

CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.

Promulgated:

December 1,
2009x-----------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

In our predisposition to discover the original intent of a statute, courts become

the unfeeling pillars of the status quo. Little do we realize that statutes or even
constitutions are bundles of compromises thrown our way by their framers. Unless we
exercise vigilance, the statute may already be out of tune and irrelevant to our day.[1] It
is in this light that we should address the instant case.

Before the Court is a petition for prohibition and certiorari, with prayer for the
issuance of a temporary restraining order and a writ of preliminary injunction, assailing
Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In
view of pressing contemporary events, the petition begs for immediate resolution.

The Antecedents

This controversy actually stems from the law authorizing the COMELEC to use
an automated election system (AES).

On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled
AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR
LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER
PURPOSES. Section 11 thereof reads:

SEC. 11. Official Ballot.The Commission shall prescribe the size and form of
the official ballot which shall contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the chairman of the
Board of Election inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election shall
not be later than one hundred twenty (120) days before the elections: Provided,
That, any elective official, whether national or local, running for any office other
than the one which he/she is holding in a permanent capacity, except for president
and vice president, shall be deemed resigned only upon the start of the campaign
period corresponding to the position for which he/she is running: Provided, further,
That, unlawful acts or omissions applicable to a candidate shall take effect upon
the start of the aforesaid campaign period: Provided, finally, That, for purposes of the
May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the
positions of President, Vice President, Senators and candidates under the Party-List
System as well as petitions for registration and/or manifestation to participate in the
Party-List System shall be on February 9, 1998 while the deadline for the filing of
certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the
Bangko Sentral ng Pilipinas at the price comparable with that of private printers under
proper security measures which the Commission shall adopt. The Commission may
contract the services of private printers upon certification by the National Printing
Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements.
Accredited political parties and deputized citizens' arms of the Commission may assign
watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall
ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall
be easily detectable by inexpensive hardware and shall be impossible to reproduce on a
photocopying machine and that identification marks, magnetic strips, bar codes and
other technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at
the rate of one (1) ballot for every registered voter with a provision of additional four (4)
ballots per precinct.[2]

Almost a decade thereafter, Congress amended the law on January 23, 2007 by
enacting R.A. No. 9369, entitled AN ACT AMENDING REPUBLIC ACT NO. 8436,
ENTITLED AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO
USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL
OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY,
FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE
BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND
OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND
FOR OTHER PURPOSES. Section 13 of the amendatory law modified Section 11 of
R.A. No. 8436, thus:

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as
follows:
Section 15. Official Ballot.The Commission shall prescribe the format of the
electronic display and/or the size and form of the official ballot, which shall contain the
titles of the position to be filled and/or the propositions to be voted upon in an initiative,
referendum or plebiscite. Where practicable, electronic displays must be constructed to
present the names of all candidates for the same position in the same page or screen,
otherwise, the electronic displays must be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot
options on all pages before completing his or her vote and to allow the voter to review
and change all ballot choices prior to completing and casting his or her ballot. Under
each position to be filled, the names of candidates shall be arranged alphabetically by
surname and uniformly indicated using the same type size. The maiden or married name
shall be listed in the official ballot, as preferred by the female candidate. Under each
proposition to be vote upon, the choices should be uniformly indicated using the same
font and size.
A fixed space where the chairman of the board of election inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition of registration/manifestation to participate in the
election. Any person who files his certificate of candidacy within this period shall
only be considered as a candidate at the start of the campaign period for which he

filed his certificate of candidacy: Provided, That, unlawful acts or omissions

applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and officers and
employees in government-owned or -controlled corporations, shall be considered
ipso facto resigned from his/her office and must vacate the same at the start of the
day of the filing of his/her certificate of candidacy.

Political parties may hold political conventions to nominate their official

candidates within thirty (30) days before the start of the period for filing a certificate of
candidacy.
With respect to a paper-based election system, the official ballots shall be
printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the
price comparable with that of private printers under proper security measures which the
Commission shall adopt. The Commission may contract the services of private printers
upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
cannot meet the printing requirements. Accredited political parties and deputized
citizens arms of the Commission shall assign watchers in the printing, storage and
distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall
ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms,
color shifting ink, microprinting, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at
the rate of one ballot for every registered voter with a provision of additional three
ballots per precinct.[3]

Pursuant to its constitutional mandate to enforce and administer election laws,

COMELEC issued Resolution No. 8678,[4] the Guidelines on the Filing of Certificates
of Candidacy (CoC) and Nomination of Official Candidates of Registered Political
Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4
and 5 of Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy.a) Any person holding a

public appointive office or position including active members of the Armed Forces of
the Philippines, and other officers and employees in government-owned or controlled

corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered
resigned upon the filing of his certificate of candidacy for the same or any other elective
office or position.
SEC. 5. Period for filing Certificate of Candidacy.The certificate of candidacy
shall be filed on regular days, from November 20 to 30, 2009, during office hours,
except on the last day, which shall be until midnight.

Alarmed that they will be deemed ipso facto resigned from their offices the
moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr.,
who hold appointive positions in the government and who intend to run in the coming
elections,[5] filed the instant petition for prohibition and certiorari, seeking the
declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void.

The Petitioners Contention

Petitioners contend that the COMELEC gravely abused its discretion when it
issued the assailed Resolution. They aver that the advance filing of CoCs for the 2010
elections is intended merely for the purpose of early printing of the official ballots in
order to cope with time limitations. Such advance filing does not automatically make the
person who filed the CoC a candidate at the moment of filing. In fact, the law considers
him a candidate only at the start of the campaign period. Petitioners then assert that this
being so, they should not be deemed ipso facto resigned from their government offices
when they file their CoCs, because at such time they are not yet treated by law as
candidates. They should be considered resigned from their respective offices only at the
start of the campaign period when they are, by law, already considered as candidates.[6]

Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed
COMELEC resolution, contains two conflicting provisions. These must be harmonized
or reconciled to give effect to both and to arrive at a declaration that they are not ipso
facto resigned from their positions upon the filing of their CoCs.[7]

Petitioners further posit that the provision considering them as ipso facto resigned
from office upon the filing of their CoCs is discriminatory and violates the equal
protection clause in the Constitution.[8]

The Respondents Arguments

On the procedural aspect of the petition, the Office of the Solicitor General
(OSG), representing respondent COMELEC, argues that petitioners have no legal
standing to institute the suit. Petitioners have not yet filed their CoCs, hence, they are
not yet affected by the assailed provision in the COMELEC resolution. The OSG further
claims that the petition is premature or unripe for judicial determination. Petitioners
have admitted that they are merely planning to file their CoCs for the coming 2010
elections. Their interest in the present controversy is thus merely speculative and
contingent upon the filing of the same. The OSG likewise contends that petitioners
availed of the wrong remedy. They are questioning an issuance of the COMELEC made
in the exercise of the latters rule-making power. Certiorari under Rule 65 is then an
improper remedy.[9]

On the substantive aspect, the OSG maintains that the COMELEC did not gravely
abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied
what is in the law. The OSG, however, agrees with petitioners that there is a conflict in
Section 13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems
to be no basis to consider appointive officials as ipso facto resigned and to require them
to vacate their positions on the same day that they file their CoCs, because they are not
yet considered as candidates at that time. Further, this deemed resigned provision
existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our
present election laws with the innovations brought about by the automated system.[10]

Our Ruling

I.

At first glance, the petition suffers from an incipient procedural defect. What
petitioners assail in their petition is a resolution issued by the COMELEC in the exercise
of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be
availed of, because it is a remedy to question decisions, resolutions and issuances made
in the exercise of a judicial or quasi-judicial function.[11] Prohibition is also an
inappropriate remedy, because what petitioners actually seek from the Court is a
determination of the proper construction of a statute and a declaration of their rights
thereunder. Obviously, their petition is one for declaratory relief,[12] over which this
Court does not exercise original jurisdiction.[13]

However, petitioners raise a challenge on the constitutionality of the questioned

provisions of both the COMELEC resolution and the law. Given this scenario, the Court
may step in and resolve the instant petition.

The transcendental nature and paramount importance of the issues raised and the
compelling state interest involved in their early resolutionthe period for the filing of
CoCs for the 2010 elections has already started and hundreds of civil servants intending
to run for elective offices are to lose their employment, thereby causing imminent and
irreparable damage to their means of livelihood and, at the same time, crippling the
governments manpowerfurther dictate that the Court must, for propriety, if only from
a sense of obligation, entertain the petition so as to expedite the adjudication of all,
especially the constitutional, issues.

In any event, the Court has ample authority to set aside errors of practice or
technicalities of procedure and resolve the merits of a case. Repeatedly stressed in our
prior decisions is the principle that the Rules were promulgated to provide guidelines for
the orderly administration of justice, not to shackle the hand that dispenses it. Otherwise,
the courts would be consigned to being mere slaves to technical rules, deprived of their
judicial discretion.[14]

II.

To put things in their proper perspective, it is imperative that we trace the brief
history of the assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a

reproduction of the second proviso in the third paragraph of Section 13 of R.A. No.
9369, which for ready reference is quoted as follows:

For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition for registration/manifestation to participate in the
election. Any person who files his certificate of candidacy within this period shall only
be considered as a candidate at the start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid campaign period:
Provided, finally, That any person holding a public appointive office or position,
including active members of the armed forces, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso facto
resigned from his/her office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy.[15]

Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law
amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or
the Omnibus Election Code (OEC) of the Philippines, which reads:

Sec. 66. Candidates holding appointive office or position.Any person holding

a public appointive office or position, including active members of the Armed Forces of
the Philippines, and officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.

It may be recalledin inverse chronologythat earlier, Presidential Decree No.

1296, or the 1978 Election Code, contained a similar provision, thus

SECTION 29. Candidates holding appointive office or position. Every person

holding a public appointive office or position, including active members of the Armed
Forces of the Philippines, and officers and employees in government-owned or
controlled corporations, shall ipso facto cease in his office or position on the date he
files his certificate of candidacy. Members of the Cabinet shall continue in the offices
they presently hold notwithstanding the filing of certificate of candidacy, subject to the
pleasure of the President of the Philippines.

Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its
Section 23 the following:

SECTION 23. Candidates Holding Appointive Office or Position. Every

person holding a public appointive office or position, including active members of the
Armed Forces of the Philippines and every officer or employee in government-owned or
controlled corporations, shall ipso facto cease in his office or position on the date he
files his certificate of candidacy: Provided, That the filing of a certificate of candidacy
shall not affect whatever civil, criminal or administrative liabilities which he may have
incurred.

Going further back in history, R.A. No. 180, or the Revised Election Code
approved on June 21, 1947, also provided that

SECTION 26. Automatic cessation of appointive officers and employees who

are candidates. Every person holding a public appointive office or position shall ipso
facto cease in his office or position on the date he files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled AN
ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICEPRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE
HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY

FUNDS THEREFOR, approved on January 5, 1946, contained, in the last paragraph of

its Section 2, the following:

A person occupying any civil office by appointment in the government or any of its
political subdivisions or agencies or government-owned or controlled corporations,
whether such office by appointive or elective, shall be considered to have resigned from
such office from the moment of the filing of such certificate of candidacy.

Significantly, however, C.A. No. 666, entitled AN ACT TO PROVIDE FOR THE
FIRST

ELECTION

PHILIPPINES,

FOR

PRESIDENT

SENATORS,

AND

AND

VICE-PRESIDENT

MEMBERS

OF

THE

OF

HOUSE

THE
OF

REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS

THEREOF, enacted without executive approval on June 22, 1941, the precursor of
C.A. No. 725, only provided for automatic resignation of elective, but not appointive,
officials.

Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938,
had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180.

The earliest recorded Philippine law on the subject is Act No. 1582, or the
Election Law enacted by the Philippine Commission in 1907, the last paragraph of
Section 29 of which reads:

Sec. 29. Penalties upon officers. x x x.

No public officer shall offer himself as a candidate for election, nor shall he be
eligible during the time that he holds said public office to election, at any municipal,
provincial or Assembly election, except for reelection to the position which he may be
holding, and no judge of the Court of First Instance, justice of the peace, provincial
fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of
Education shall aid any candidate or influence in any manner or take any part in any
municipal, provincial, or Assembly election under penalty of being deprived of his
office and being disqualified to hold any public office whatever for a term of five years:
Provided, however, That the foregoing provisions shall not be construed to deprive any
person otherwise qualified of the right to vote at any election.

From this brief historical excursion, it may be gleaned that the second proviso in
the third paragraph of Section 13 of R.A. No. 9369that any person holding a public
appointive office or position, including active members of the armed forces, and
officers, and employees in government-owned or controlled corporations, shall be
considered ipso facto resigned from his/her office and must vacate the same at the start
of the day of the filing of his/her certificate of candidacytraces its roots to the period
of the American occupation.

In fact, during the deliberations of Senate Bill No. 2231, the bill later to be
consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard
Gordon, the principal author of the bill, acknowledged that the said proviso in the
proposed legislative measure is an old provision which was merely copied from earlier
existing legislation, thus

Senator Osmea. May I just opine here and perhaps obtain the opinion of the
good Sponsor. This reads like, ANY PERSON HOLDING [means currently] A
PUBLIC APPOINTIVE POSITION SHALL BE CONSIDERED IPSO FACTO
RESIGNED [which means that the prohibition extends only to appointive officials]
INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND
EMPLOYEES This is a prohibition, Mr. President. This means if one is chairman of
SSS or PDIC, he is deemed ipso facto resigned when he files his certificate of

candidacy. Is that the intention?

Senator Gordon. This is really an old provision, Mr. President.
Senator Osmea. It is in bold letters, so I think it was a Committee amendment.
Senator Gordon. No, it has always been there.
Senator Osmea. I see.
Senator Gordon. I guess the intention is not to give them undue advantage,
especially certain people.
Senator Osmea. All right.[16]

In that Senate deliberation, however, Senator Miriam Defensor-Santiago

expressed her concern over the inclusion of the said provision in the new law, given that
the same would be disadvantageous and unfair to potential candidates holding
appointive positions, while it grants a consequent preferential treatment to elective
officials, thus

Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I
make this point more as a matter of record than of any feasible hope that it can possibly
be either accepted or if we come to a division of the House, it will be upheld by the
majority.
I am referring to page 15, line 21. The proviso begins: PROVIDED FINALLY,
THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICESHALL BE
CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE.
The point that I made during the appropriate debate in the past in this Hall is that
there is, for me, no valid reason for exempting elective officials from this inhibition or
disqualification imposed by the law. If we are going to consider appointive officers of
the government, including AFP members and officers of government-owned and
controlled corporations, or any other member of the appointive sector of the civil
service, why should it not apply to the elective sector for, after all, even senators and
congressmen are members of the civil service as well?
Further, it is self-serving for the Senate, or for the Congress in general, to give an
exception to itself which is not available to other similarly situated officials of

government. Of course, the answer is, the reason why we are special is that we are
elected. Since we are imposing a disqualification on all other government officials
except ourselves, I think, it is the better part of delicadeza to inhibit ourselves as well, so
that if we want to stay as senators, we wait until our term expires. But if we want to run
for some other elective office during our term, then we have to be considered resigned
just like everybody else. That is my proposed amendment. But if it is unacceptable to
the distinguished Sponsor, because of sensitivity to the convictions of the rest of our
colleagues, I will understand.
Senator Gordon. Mr. President, I think the suggestion is well-thought of. It is a
good policy. However, this is something that is already in the old law which was upheld
by the Supreme court in a recent case that the rider was not upheld and that it was valid.
[17]

The obvious inequality brought about by the provision on automatic resignation of

appointive civil servants must have been the reason why Senator Recto proposed the
inclusion of the following during the period of amendments: ANY PERSON WHO
FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL
ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE
CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC.[18] The said proviso
seems to mitigate the situation of disadvantage afflicting appointive officials by
considering persons who filed their CoCs as candidates only at the start of the campaign
period, thereby, conveying the tacit intent that persons holding appointive positions will
only be considered as resigned at the start of the campaign period when they are already
treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the OEC and Section 11

of R.A. No. 8436 contained a similar provision on automatic resignation of elective
officials upon the filing of their CoCs for any office other than that which they hold in a
permanent capacity or for President or Vice-President. However, with the enactment of
R.A. No. 9006, or the Fair Election Act,[19] in 2001, this provision was repealed by
Section 14[20] of the said act. There was, thus, created a situation of obvious

discrimination against appointive officials who were deemed ipso facto resigned from
their offices upon the filing of their CoCs, while elective officials were not.

This situation was incidentally addressed by the Court in Farias v. The

Executive Secretary[21] when it ruled that

Section 14 of Rep. Act No. 9006

Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners contention, that the repeal of Section 67 of the Omnibus
Election Code pertaining to elective officials gives undue benefit to such officials as
against the appointive ones and violates the equal protection clause of the constitution, is
tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is
subject to reasonable classification. If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated and regulated
differently from the other. The Court has explained the nature of the equal protection
guarantee in this manner:
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation which
is limited either in the object to which it is directed or by territory within
which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within
such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive officials hold their office by virtue of
their designation thereto by an appointing authority. Some appointive officials hold

their office in a permanent capacity and are entitled to security of tenure while others
serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under
Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers
and employees in the civil service, are strictly prohibited from engaging in any partisan
political activity or take part in any election except to vote. Under the same provision,
elective officials, or officers or employees holding political offices, are obviously
expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code,
the legislators deemed it proper to treat these two classes of officials differently with
respect to the effect on their tenure in the office of the filing of the certificates of
candidacy for any position other than those occupied by them. Again, it is not within
the power of the Court to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected
officials vis-a-vis appointive officials, is anchored upon material and significant
distinctions and all the persons belonging under the same classification are similarly
treated, the equal protection clause of the Constitution is, thus, not infringed.[22]

However, it must be remembered that the Court, in Farias, was intently focused
on the main issue of whether the repealing clause in the Fair Election Act was a
constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter
scrutiny the impact of the retention of the provision on automatic resignation of persons
holding appointive positions (Section 66) in the OEC, vis--vis the equal protection
clause.

Moreover, the Courts vision in Farias was shrouded by the fact that

petitioners therein, Farias et al., never posed a direct challenge to the constitutionality
of Section 66 of the OEC. Farias et al. rather merely questioned, on constitutional
grounds, the repealing clause, or Section 14 of the Fair Election Act. The Courts aforequoted declaration in Farias may then very well be considered as an obiter dictum.

III.

The instant case presents a rare opportunity for the Court, in view of the
constitutional challenge advanced by petitioners, once and for all, to settle the issue of
whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a
reproduction of Section 66 of the OEC, which, as shown above, was based on provisions
dating back to the American occupation, is violative of the equal protection clause.

But before delving into the constitutional issue, we shall first address the issues on
legal standing and on the existence of an actual controversy.

Central to the determination of locus standi is the question of whether a party has
alleged such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.[23] In this case, petitioners
allege that they will be directly affected by COMELEC Resolution No. 8678 for they
intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its
part, contends that since petitioners have not yet filed their CoCs, they are not yet
candidates; hence, they are not yet directly affected by the assailed provision in the
COMELEC resolution.

The Court, nevertheless, finds that, while petitioners are not yet candidates, they
have the standing to raise the constitutional challenge, simply because they are qualified
voters. A restriction on candidacy, such as the challenged measure herein, affects the
rights of voters to choose their public officials. The rights of voters and the rights of

candidates do not lend themselves to neat separation; laws that affect candidates always
have at least some theoretical, correlative effect on voters.[24] The Court believes that
both candidates and voters may challenge, on grounds of equal protection, the assailed
measure because of its impact on voting rights.[25]

In any event, in recent cases, this Court has relaxed the stringent direct injury test
and has observed a liberal policy allowing ordinary citizens, members of Congress, and
civil organizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.[26]

We have also stressed in our prior decisions that the exercise by this Court of
judicial power is limited to the determination and resolution of actual cases and
controversies.[27] The Court, in this case, finds that an actual case or controversy exists
between the petitioners and the COMELEC, the body charged with the enforcement and
administration of all election laws. Petitioners have alleged in a precise manner that they
would engage in the very acts that would trigger the enforcement of the provisionthey
would file their CoCs and run in the 2010 elections. Given that the assailed provision
provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it
presents only a speculative or hypothetical obstacle to petitioners candidacy.[28]

IV.

Having hurdled what the OSG posed as obstacles to judicial review, the Court
now delves into the constitutional challenge.

It is noteworthy to point out that the right to run for public office touches on two
fundamental freedoms, those of expression and of association. This premise is best
explained in Mancuso v. Taft,[29] viz.:

Freedom of expression guarantees to the individual the opportunity to write a

letter to the local newspaper, speak out in a public park, distribute handbills advocating
radical reform, or picket an official building to seek redress of grievances. All of these
activities are protected by the First Amendment if done in a manner consistent with a
narrowly defined concept of public order and safety. The choice of means will likely
depend on the amount of time and energy the individual wishes to expend and on his
perception as to the most effective method of projecting his message to the public. But
interest and commitment are evolving phenomena. What is an effective means for
protest at one point in time may not seem so effective at a later date. The dilettante who
participates in a picket line may decide to devote additional time and resources to his
expressive activity. As his commitment increases, the means of effective expression
changes, but the expressive quality remains constant. He may decide to lead the picket
line, or to publish the newspaper. At one point in time he may decide that the most
effective way to give expression to his views and to get the attention of an appropriate
audience is to become a candidate for public office-means generally considered among
the most appropriate for those desiring to effect change in our governmental systems. He
may seek to become a candidate by filing in a general election as an independent or by
seeking the nomination of a political party. And in the latter instance, the individual's
expressive activity has two dimensions: besides urging that his views be the views of the
elected public official, he is also attempting to become a spokesman for a political party
whose substantive program extends beyond the particular office in question. But
Cranston has said that a certain type of its citizenry, the public employee, may not
become a candidate and may not engage in any campaign activity that promotes himself
as a candidate for public office. Thus the city has stifled what may be the most
important expression an individual can summon, namely that which he would be willing
to effectuate, by means of concrete public action, were he to be selected by the voters.
It is impossible to ignore the additional fact that the right to run for office also
affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict
review to invalidate an Ohio election system that made it virtually impossible for third
parties to secure a place on the ballot. The Court found that the First Amendment
protected the freedom to associate by forming and promoting a political party and that
that freedom was infringed when the state effectively denied a party access to its
electoral machinery. The Cranston charter provision before us also affects associational
rights, albeit in a slightly different way. An individual may decide to join or participate
in an organization or political party that shares his beliefs. He may even form a new
group to forward his ideas. And at some juncture his supporters and fellow party

members may decide that he is the ideal person to carry the group's standard into the
electoral fray. To thus restrict the options available to political organization as the
Cranston charter provision has done is to limit the effectiveness of association; and the
freedom to associate is intimately related with the concept of making expression
effective. Party access to the ballot becomes less meaningful if some of those selected
by party machinery to carry the party's programs to the people are precluded from doing
so because those nominees are civil servants.
Whether the right to run for office is looked at from the point of view of
individual expression or associational effectiveness, wide opportunities exist for the
individual who seeks public office. The fact of candidacy alone may open previously
closed doors of the media. The candidate may be invited to discuss his views on radio
talk shows; he may be able to secure equal time on television to elaborate his campaign
program; the newspapers may cover his candidacy; he may be invited to debate before
various groups that had theretofore never heard of him or his views. In short, the fact of
candidacy opens up a variety of communicative possibilities that are not available to
even the most diligent of picketers or the most loyal of party followers. A view today,
that running for public office is not an interest protected by the First Amendment, seems
to us an outlook stemming from an earlier era when public office was the preserve of the
professional and the wealthy. Consequently we hold that candidacy is both a protected
First Amendment right and a fundamental interest. Hence any legislative classification
that significantly burdens that interest must be subjected to strict equal protection
review.[30]

Here, petitioners interest in running for public office, an interest protected by

Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section
13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said
proviso for being violative of the equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from

their posts upon the filing of their CoCs, but not considering as resigned all other civil
servants, specifically the elective ones, the law unduly discriminates against the first
class. The fact alone that there is substantial distinction between those who hold
appointive positions and those occupying elective posts, does not justify such
differential treatment.

In order that there can be valid classification so that a discriminatory

governmental act may pass the constitutional norm of equal protection, it is necessary
that the four (4) requisites of valid classification be complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences
between the classes treated differently. As illustrated in the fairly recent Mirasol v.
Department of Public Works and Highways,[31] a real and substantial distinction exists
between a motorcycle and other motor vehicles sufficient to justify its classification
among those prohibited from plying the toll ways. Not all motorized vehicles are created
equala two-wheeled vehicle is less stable and more easily overturned than a fourwheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with
the second requirementif it is not germane to the purpose of the law. Justice Isagani
A. Cruz (Ret.), in his treatise on constitutional law, explains,

The classification, even if based on substantial distinctions, will still be invalid if

it is not germane to the purpose of the law. To illustrate, the accepted difference in
physical stamina between men and women will justify the prohibition of the latter from
employment as miners or stevedores or in other heavy and strenuous work. On the basis
of this same classification, however, the law cannot provide for a lower passing average
for women in the bar examinations because physical strength is not the test for
admission to the legal profession. Imported cars may be taxed at a higher rate than
locally assembled automobiles for the protection of the national economy, but their
difference in origin is no justification for treating them differently when it comes to
punishing violations of traffic regulations. The source of the vehicle has no relation to
the observance of these rules.[32]

The third requirement means that the classification must be enforced not only for
the present but as long as the problem sought to be corrected continues to exist. And,
under the last requirement, the classification would be regarded as invalid if all the
members of the class are not treated similarly, both as to rights conferred and obligations
imposed.[33]

Applying the four requisites to the instant case, the Court finds that the
differential treatment of persons holding appointive offices as opposed to those holding
elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a
governmental position to promote ones candidacy, or even to wield a dangerous or
coercive influence on the electorate. The measure is further aimed at promoting the
efficiency, integrity, and discipline of the public service by eliminating the danger that
the discharge of official duty would be motivated by political considerations rather than
the welfare of the public.[34] The restriction is also justified by the proposition that the
entry of civil servants to the electoral arena, while still in office, could result in neglect
or inefficiency in the performance of duty because they would be attending to their

campaign rather than to their office work.

If we accept these as the underlying objectives of the law, then the assailed
provision cannot be constitutionally rescued on the ground of valid classification.
Glaringly absent is the requisite that the classification must be germane to the purposes
of the law. Indeed, whether one holds an appointive office or an elective one, the evils
sought to be prevented by the measure remain. For example, the Executive Secretary, or
any Member of the Cabinet for that matter, could wield the same influence as the VicePresident who at the same time is appointed to a Cabinet post (in the recent past, elected
Vice-Presidents were appointed to take charge of national housing, social welfare
development, interior and local government, and foreign affairs). With the fact that they
both head executive offices, there is no valid justification to treat them differently when
both file their CoCs for the elections. Under the present state of our law, the VicePresident, in the example, running this time, let us say, for President, retains his position
during the entire election period and can still use the resources of his office to support
his campaign.

As to the danger of neglect, inefficiency or partisanship in the discharge of the

functions of his appointive office, the inverse could be just as true and compelling. The
public officer who files his certificate of candidacy would be driven by a greater impetus
for excellent performance to show his fitness for the position aspired for.

Mancuso v. Taft,[35] cited above, explains that the measure on automatic

resignation, which restricts the rights of civil servants to run for officea right
inextricably linked to their freedom of expression and association, is not reasonably

necessary to the satisfaction of the state interest. Thus, in striking down a similar
measure in the United States, Mancuso succinctly declares

In proceeding to the second stage of active equal protection review, however, we

do see some contemporary relevance of the Mitchell decision. National Ass'n of Letter
Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny,
the city must show that the exclusion of all government employees from candidacy is
necessary to achieve a compelling state interest. And, as stated in Mitchell and other
cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick,
supra, government at all levels has a substantial interest in protecting the integrity of its
civil service. It is obviously conceivable that the impartial character of the civil service
would be seriously jeopardized if people in positions of authority used their discretion to
forward their electoral ambitions rather than the public welfare. Similarly if a public
employee pressured other fellow employees to engage in corrupt practices in return for
promises of post-election reward, or if an employee invoked the power of the office he
was seeking to extract special favors from his superiors, the civil service would be done
irreparable injury. Conversely, members of the public, fellow-employees, or supervisors
might themselves request favors from the candidate or might improperly adjust their
own official behavior towards him. Even if none of these abuses actually materialize,
the possibility of their occurrence might seriously erode the public's confidence in its
public employees. For the reputation of impartiality is probably as crucial as the
impartiality itself; the knowledge that a clerk in the assessor's office who is running for
the local zoning board has access to confidential files which could provide pressure
points for furthering his campaign is destructive regardless of whether the clerk actually
takes advantage of his opportunities. For all of these reasons we find that the state
indeed has a compelling interest in maintaining the honesty and impartiality of its public
work force.
We do not, however, consider the exclusionary measure taken by Cranston-a flat
prohibition on office-seeking of all kinds by all kinds of public employees-as even
reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out
in Dunn v. Blumstein, [s]tatutes affecting constitutional rights must be drawn with
precision. For three sets of reasons we conclude that the Cranston charter provision
pursues its objective in a far too heavy-handed manner and hence must fall under the
equal protection clause. First, we think the nature of the regulation-a broad prophylactic
rule-may be unnecessary to fulfillment of the city's objective. Second, even granting
some sort of prophylactic rule may be required, the provision here prohibits candidacies
for all types of public office, including many which would pose none of the problems at
which the law is aimed. Third, the provision excludes the candidacies of all types of
public employees, without any attempt to limit exclusion to those employees whose
positions make them vulnerable to corruption and conflicts of interest.

There is thus no valid justification to treat appointive officials differently from the
elective ones. The classification simply fails to meet the test that it should be germane
to the purposes of the law. The measure encapsulated in the second proviso of the third
paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the
equal protection clause.

V.

The challenged provision also suffers from the infirmity of being overbroad.

First, the provision pertains to all civil servants holding appointive posts without
distinction as to whether they occupy high positions in government or not. Certainly, a
utility worker in the government will also be considered as ipso facto resigned once he
files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is
unimaginable how he can use his position in the government to wield influence in the
political world.

While it may be admitted that most appointive officials who seek public elective
office are those who occupy relatively high positions in government, laws cannot be
legislated for them alone, or with them alone in mind. For the right to seek public
elective office is universal, open and unrestrained, subject only to the qualification
standards prescribed in the Constitution and in the laws. These qualifications are, as we

all know, general and basic so as to allow the widest participation of the citizenry and to
give free rein for the pursuit of ones highest aspirations to public office. Such is the
essence of democracy.

Second, the provision is directed to the activity of seeking any and all public
offices, whether they be partisan or nonpartisan in character, whether they be in the
national, municipal or barangay level. Congress has not shown a compelling state
interest to restrict the fundamental right involved on such a sweeping scale.[36]

Specific evils require specific treatments, not through overly broad measures that
unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the
people, and all governmental power emanates from them.

Mancuso v. Taft,[37] on this point, instructs

As to approaches less restrictive than a prophylactic rule, there exists the device
of the leave of absence. Some system of leaves of absence would permit the public
employee to take time off to pursue his candidacy while assuring him his old job should
his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate
many of the opportunities for engaging in the questionable practices that the statute is
designed to prevent. While campaigning, the candidate would feel no conflict between
his desire for election and his publicly entrusted discretion, nor any conflict between his
efforts to persuade the public and his access to confidential documents. But instead of
adopting a reasonable leave of absence policy, Cranston has chosen a provision that
makes the public employee cast off the security of hard-won public employment should
he desire to compete for elected office.
The city might also promote its interest in the integrity of the civil service by
enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that
treat conflict of interests, bribery, or other forms of official corruption. By thus attacking
the problem directly, instead of using a broad prophylactic rule, the city could pursue its
objective without unduly burdening the First Amendment rights of its employees and the

voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an
analogous question when the State of Tennessee asserted that the interest of ballot box
purity justified its imposition of one year and three month residency requirements
before a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had
available a number of criminal statutes that could be used to punish voter fraud without
unnecessary infringement on the newcomer's right to vote. Similarly, it appears from the
record in this case that the Cranston charter contains some provisions that might be used
against opportunistic public employees.
Even if some sort of prophylactic rule is necessary, we cannot say that Cranston
has put much effort into tailoring a narrow provision that attempts to match the
prohibition with the problem. The charter forbids a Cranston public employee from
running for any office, anywhere. The prohibition is not limited to the local offices of
Cranston, but rather extends to statewide offices and even to national offices. It is
difficult for us to see that a public employee running for the United States Congress
poses quite the same threat to the civil service as would the same employee if he were
running for a local office where the contacts and information provided by his job related
directly to the position he was seeking, and hence where the potential for various abuses
was greater. Nor does the Cranston charter except the public employee who works in
Cranston but aspires to office in another local jurisdiction, most probably his town of
residence. Here again the charter precludes candidacies which can pose only a remote
threat to the civil service. Finally, the charter does not limit its prohibition to partisan
office-seeking, but sterilizes also those public employees who would seek nonpartisan
elective office. The statute reviewed in Mitchell was limited to partisan political activity,
and since that time other courts have found the partisan-nonpartisan distinction a
material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo,
supra. While the line between nonpartisan and partisan can often be blurred by systems
whose true characters are disguised by the names given them by their architects, it
seems clear that the concerns of a truly partisan office and the temptations it fosters are
sufficiently different from those involved in an office removed from regular party
politics to warrant distinctive treatment in a charter of this sort.
The third and last area of excessive and overinclusive coverage of the Cranston
charter relates not to the type of office sought, but to the type of employee seeking the
office. As Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67
S.Ct. 556, restrictions on administrative employees who either participate in decisionmaking or at least have some access to information concerning policy matters are much
more justifiable than restrictions on industrial employees, who, but for the fact that the
government owns the plant they work in, are, for purposes of access to official
information, identically situated to all other industrial workers. Thus, a worker in the
Philadelphia mint could be distinguished from a secretary in an office of the Department
of Agriculture; so also could a janitor in the public schools of Cranston be distinguished
from an assistant comptroller of the same city. A second line of distinction that focuses
on the type of employee is illustrated by the cases of Kinnear and Minielly, supra. In
both of these cases a civil service deputy decided to run for the elected office of sheriff.
The courts in both cases felt that the no-candidacy laws in question were much too
broad and indicated that perhaps the only situation sensitive enough to justify a flat rule
was one in which an inferior in a public office electorally challenged his immediate
superior. Given all these considerations, we think Cranston has not given adequate

attention to the problem of narrowing the terms of its charter to deal with the specific
kinds of conflict-of-interest problems it seeks to avoid.
We also do not find convincing the arguments that after-hours campaigning will
drain the energy of the public employee to the extent that he is incapable of performing
his job effectively and that inevitable on-the-job campaigning and discussion of his
candidacy will disrupt the work of others. Although it is indisputable that the city has a
compelling interest in the performance of official work, the exclusion is not welltailored to effectuate that interest. Presumably the city could fire the individual if he
clearly shirks his employment responsibilities or disrupts the work of others. Also, the
efficiency rationale common to both arguments is significantly underinclusive. It applies
equally well to a number of non-political, extracurricular activities that are not
prohibited by the Cranston charter. Finally, the connection between after-hours
campaigning and the state interest seems tenuous; in many cases a public employee
would be able to campaign aggressively and still continue to do his job well.[38]

Incidentally, Clements v. Fashing[39] sustained as constitutional a provision on

the automatic resignation of District Clerks, County Clerks, County Judges, County
Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and
Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and
Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and
Constables if they announce their candidacy or if they become candidates in any general,
special or primary election.

In Clements, it may be readily observed that a provision treating differently

particular officials, as distinguished from all others, under a classification that is
germane to the purposes of the law, merits the stamp of approval from American courts.
Not, however, a general and sweeping provision, and more so one violative of the
second requisite for a valid classification, which is on its face unconstitutional.

On a final note, it may not be amiss to state that the Americans, from whom we
copied the provision in question, had already stricken down a similar measure for being
unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold
fundamental liberties over age-old, but barren, restrictions to such freedoms.

WHEREFORE, premises considered, the petition is GRANTED. The second

proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the
Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are
declared as UNCONSTITUTIONAL.

SO ORDERED.

Quinto vs Comelec
G. R. No. 189698
FACTS: Petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr. filed a petition for certiorari and
prohibition against the COMELEC for issuing a resolution declaring appointive officials who filed
their certificate of candidacy as ipso facto resigned from their positions. In this defense, the
COMELEC avers that it only copied the provision from Sec. 13 of R.A. 9369.
ISSUE: Whether or not the said COMELEC resolution was valid.
HELD: NO. In the Farias case, the petitioners challenged Sec. 14 of RA. 9006 repealing Sec. 66 of
the Omnibus Election Code (OEC) for giving undue benefit to elective officials in comparison with
appointive officials. Incidentally, the Court upheld the substantial distinctions between the two and
pronounced that there was no violation of the equal protection clause. However in the present case, the
Court held that the discussion on the equal protection clause was an obiter dictum since the issue raised
therein was against the repealing clause. It didnt squarely challenge Sec. 66.
Sec. 13 of RA. 9369 unduly discriminated appointive and elective officials. Applying the 4 requisites

of a valid classification, the proviso does not comply with the second requirement that it must be
germane to the purpose of the law.
The obvious reason for the challenged provision is to prevent the use of a governmental position to
promote ones candidacy, or even to wield a dangerous or coercive influence of the electorate. The
measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by
eliminating the danger that the discharge of official duty would be motivated by political considerations
rather than the welfare of the public. The restriction is also justified by the proposition that the entry of
civil servants to the electorate arena, while still in office, could result in neglect or inefficiency in the
performance of duty because they would be attending to their campaign rather than to their office work.
Sec. 13 of RA. 9369 pertains to all civil servants holding appointive posts without distinction as to
whether they occupy high positions in government or not. Certainly, a utility worker in the government
will also be considered as ipso facto resigned once he files his certificate of candidacy for the election.
This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to
wield influence in the political world.
The provision s directed to the activity any and all public offices, whether they be partisan or non
partisan in character, whether they be in the national, municipal or barangay level. Congress has not
shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale.
MOTION FOR RECONSIDERATION
FACTS: This is a motion for reconsideration filed by the Commission on Elections. The latter moved
to question an earlier decision of the Supreme Court declaring Section 4 (a) of COMELEC Resolution
No. 8678 unconstitutional. Section 4 (a) of COMELEC Resolution No. 8678 provides that, Any
person holding a public appointive office or position including active members of the Armed Forces of
the Philippines, and other officers and employees in government-owned or controlled corporations,
shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
Be it noted that petitioners of the above-entitled case are appointive officials who intend to be elected
in the previously held 2010 elections and who felt aggrieved by the issuance of the questioned
resolution.
ISSUE: Whether or not Section 4 (a) of COMELEC Resolution No. 8678 is constitutional.
RULING: The Supreme Court overruled its previous decision declaring the assailed resolution
unconstitutional. Here, it strongly upholds the constitutionality of the resolution saying that it does not
violate the equal protection clause. It is settled that the equal protection clause does not demand
absolute equality; it merely requires that all persons shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities enforced. The test used is reasonableness
which requires that:
1. The classification rests on substantial distinctions;
2. It is germane to the purposes of the law;
3. It is not limited to existing conditions only; and
4. It applies equally to all members of the same class.
In the case under consideration, there is a substantial distinction between public and elective officials
which has been rendered moot and academic by the ruling made in the case of Farinas, etl. al. vs.
Executive Secretary, et. al.

Section 4 (a) of COMELEC Resolution No. 8678 is constitutional.