EN BANC

[G.R. No. L-79974. December 17, 1987.]

ULPIANO P. SARMIENTO III AND JUANITO G. ARCIALLA,
petitioners, vs. SALVADOR MISON, in his capacity as
COMMISSIONER OF THE BUREAU OF CUSTOMS, AND
GUILLERMO CARAGUE, in his capacity as SECRETARY OF
THE DEPARTMENT OF BUDGET, respondents, COMMISSION
ON APPOINTMENTS, intervenor.

DECISION

PADILLA, J :
p

Once more the Court is called upon to delineate constitutional boundaries. In this petition
for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated
Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent
Salvador Mison from performing the functions of the Office of Commissioner of the
Bureau of Customs and the respondent Guillermo Carague, as Secretary of the
Department of Budget, from effecting disbursements in payment of Mison's salaries and
emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of
Customs is unconstitutional by reason of its not having been confirmed by the
Commission on Appointments. The respondents, on the other hand, maintain the
constitutionality of respondent Mison's appointment without the confirmation of the
Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public
service, the Court resolved to give due course to the petition and decide, setting aside the
finer procedural questions of whether prohibition is the proper remedy to test respondent
Mison's right to the office of Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on
Appointments to intervene and file a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed by intervenor's reply
thereto. The parties were also heard in oral argument on 8 December 1987.
cdphil

This case assumes added significance because, at bottom line, it involves a conflict
between two (2) great departments of government, the Executive and Legislative
Departments. It also occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in
the Constitution. In cases like this, we follow what the Court, speaking through Mr.
Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs.
Rodriguez, 1 that:
"The fundamental principle of constitutional construction is to give effect to the
intent of the framers of the organic law and of the people adopting it. The
intention to which force is to be given is that which is embodied and expressed
in the constitutional provisions themselves."

The Court will thus construe the applicable constitutional provisions, not in accordance
with how the executive or the legislative department may want them construed, but in
accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
"The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of the departments, agencies, commissions or
boards.
"The President shall have the power to make appointments during the recess of
the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until
the next adjournment of the Congress."

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there
are four (4) groups of officers whom the President shall appoint. These four (4) groups, to
which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution; 2

Second, all other officers of the Government whose appointments are not
otherwise provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may by law
vest in the President alone.

The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should
they be appointed by the President with or without the consent (confirmation) of the
Commission on Appointments? By following the accepted rule in constitutional and
statutory construction that an express enumeration of subjects excludes others not
enumerated, it would follow that only those appointments to positions expressly stated in
the first group require the consent (confirmation) of the Commission on Appointments.
But we need not rely solely on this basic rule of constitutional construction. We can refer
to historical background as well as to the records of the 1986 Constitutional Commission
to determine, with more accuracy, if not precision, the intention of the framers of the
1987 Constitution and the people adopting it, on whether the appointments by the
President, under the second, third and fourth groups, require the consent (confirmation)
of the Commission on Appointments. Again, in this task, the following advice of Mr.
Chief Justice J. Abad Santos in Gold Creek is apropos:
"In deciding this point, it should be borne in mind that a constitutional provision
must be presumed to have been framed and adopted in the light and
understanding of prior and existing laws and with reference to them. "Courts are
bound to presume that the people adopting a constitution are familiar with the
previous and existing laws upon the subjects to which its provisions relate, and
upon which they express their judgment and opinion in its adoption." (Barry vs.
Truax, 13 N.D., 131; 99 N.W., 769; 65 L. R. A., 762.) 6 "

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided
that
xxx xxx xxx
"(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and
bureaus, officers of the army from the rank of colonel, of the Navy and Air
Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; but the Congress may by

law vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments.
"(4) The President shall 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.
xxx xxx xxx
"(7) . . ., and with the consent of the Commission on Appointments, shall
appoint ambassadors, other public ministers and consuls . . ."

Upon the other hand, the 1973 Constitution provides that

"Section 10. The President shall appoint the heads of bureaus and offices, the
officers of the Armed Forces of the Philippines from the rank of Brigadier
General or Commodore, and all other officers of the government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint. However, the Batasang Pambansa may by law
vest in the Prime Minister, members of the Cabinet, the Executive Committee,
Courts, Heads of Agencies, Commissions, and Boards the power to appoint
inferior officers in their respective offices."

Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political
history that the power of confirmation by the Commission on Appointments, under the
1935 Constitution, transformed that commission, many times, into a venue of "horsetrading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in
which it was molded and remolded by successive amendments, placed the absolute power
of appointment in the President with hardly any check on the part of the legislature.
LLphil

Given the above two in extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987
Constitution and the people adopting it, struck a "middle ground" by requiring the
consent (confirmation) of the Commission on Appointments for the first group of
appointments and leaving to the President, without such confirmation, the appointment of
other officers, i.e., those in the second and third groups as well as those in the fourth
group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The
original text of Section 16, Article VII, as proposed by the Committee on the Executive
of the 1986 Constitutional Commission, read as follows:

"Section 16. The president shall nominate and, with the consent of a
Commission on Appointment, shall appoint the heads of the executive
departments and bureaus, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain and all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint.
The Congress may by law vest the appointment of inferior officers in the
President alone, in the courts, or in the heads of departments" 7 [Emphasis
supplied.].

The above text is almost a verbatim copy of its counterpart provision in the 1935
Constitution. When the frames discussed on the floor of the Commission the proposed
text of Section 16, Article VII, a feeling was manifestly expressed to make the power of
the Commission on Appointments over presidential appointments more limited than that
held by the Commission in the 1935 Constitution. Thus
"Mr. Rama: . . . May I ask that Commissioner Monsod be recognized.
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of
our time to lay the basis for some of the amendments that I would like to
propose to the Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals and so
on but not to the levels of bureau heads and colonels.
xxx xxx xxx" 8 (Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of confirmation by the
Commission on Appointments; and (2) the exclusion of appointments made under the
second sentence 9 the section from the same requirement. The records of the deliberations
of the Constitutional Commission show the following:
"MR. ROMULO: I ask that Commissioner Foz be recognized.
THE PRESIDENT: Commissioner Foz is recognized.

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16,

line 26 which is to delete the words 'and bureaus,' and on line 28 of the same
page, to change the phrase 'colonel or naval captain' to MAJOR GENERAL OR
REAR ADMIRAL. This last amendment which is co-authored by
Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on
line 29 of the same page, start a new sentence with: HE SHALL ALSO
APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first
proposed amendment is to delete the words 'and bureaus' on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what would be
the justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the executive
department, and to require further confirmation of presidential appointment of
heads of bureaus would subject them to political influence.
MR. REGALADO: The Commissioner's proposed amendment by deletion also
includes regional directors as distinguished from merely staff directors, because
the regional directors have quite a plenitude of powers within the regions as
distinguished from staff directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervision of the staff
bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz? The
Commissioner proposed an amendment to delete 'and bureaus' on Section 16.
Who will then appoint the bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their appointment
shall no longer be subject to confirmation by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of
Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

xxx xxx xxx

MR. REGALADO: Madam President, the Committee feels that this matter
should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will first vote
on the deletion of the phrase 'and bureaus' on line 26, such that appointments of
bureau directors no longer need confirmation by the Commission on
Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the
consent of a Commission on Appointments, shall appoint the heads of the
executive departments, ambassadors . . .'
THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on
page 7, line 26? (Silence) The Chair hears none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized.
MR. FOZ: Madam President, this is the third proposed amendment on page 7,
line 28. I propose to put a period (.) after 'captain' and on line 29, delete 'and all'
and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the proposed
amendment because it makes it clear that those other officers mentioned therein
do not have to be confirmed by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his
amendment, so that after 'captain' we insert the following words: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION?

FR. BERNAS: It is a little vague.

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

now this

proposed

amendment

of

xxx xxx xxx

THE PRESIDENT: Is there any objection to this proposed amendment of
Commissioners Foz and Davide as accepted by the Committee? (Silence) The
Chair hears none: the amendment, as amended, is approved" 10 (Emphasis
supplied).

It is, therefore, clear that appointments to the second and third groups of officers can be
made by the President without the consent (confirmation) of the Commission on
Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of
Sec. 16, Article VII reading
". . . He (the President) shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law
and those whom he may be authorized by law to appoint . . .
xxx xxx xxx" (Emphasis supplied)

with particular reference to the word "also," implies that the President shall "in like
manner" appoint the officers mentioned in said second sentence. In other words, the
President shall appoint the officers mentioned in said second sentence in the same
manner as he appoints officers mentioned in the first sentence, that is, by nomination
and with the consent (confirmation) of the Commission on Appointments.
prcd

Amicus curiae's reliance on the word "also" in said second sentence is not necessarily
supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word
"also" could mean "in addition; as well; besides, too" (Webster's International Dictionary,
p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in
said second sentence means that the President, in addition to nominating and, with the
consent of the Commission on Appointments, appointing the officers enumerated in the
first sentence, can appoint (without such consent (confirmation) the officers mentioned in
the second sentence.
Rather than limit the area of consideration to the possible meanings of the word "also" as
used in the context of said second sentence, the Court has chosen to derive significance
from the fact that the first sentence speaks of nomination by the President and
appointment by the President with the consent of the Commission on Appointments,
whereas, the second sentence speaks only of appointment by the President. And, this use
of different language in two (2) sentences proximate to each other underscores a
difference in message conveyed and perceptions established, in line with Judge Learned
Hand's observation that "words are not pebbles in alien juxtaposition" but, more so,
because the recorded proceedings of the 1986 Constitutional Commission clearly and
expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution,
there are officers whose appointments require no confirmation of the Commission on
Appointments, even if such officers may be higher in rank, compared to some officers
whose appointments have to be confirmed by the Commission on Appointments under
the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the

Central Bank Governor requires no confirmation by the Commission on Appointments,

even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a
consul in the Consular Service.

But these contrasts, while initially impressive, merely underscore the purposive intention
and deliberate judgment of the framers of the 1987 Constitution that, except as to those
officers whose appointments require the consent of the Commission on Appointments by
express mandate of the first sentence in Sec., 16, Art. VII, appointments of other officers
are left to the President without need of confirmation by the Commission on
Appointments. This conclusion is inevitable, if we are to presume, as we must, that the
framers of the 1987 Constitution were knowledgeable of what they were doing and of the
foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character.
Limitations on or qualifications of such power should be strictly construed against them.
Such limitations or qualifications must be clearly stated in order to be recognized. But, it
is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that
appointments by the President to the positions therein enumerated require the consent of
the Commission on Appointments.
Cdpr

As to the fourth group of officers whom the President can appoint, the intervenor
Commission on Appointments underscores the third sentence in Sec. 16, Article VII of
the 1987 Constitution, which reads:
"The Congress may, by law, vest the appointment of other officers lower in rank
in the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards." [Emphasis supplied]

and argues that, since a law is needed to vest the appointment of lower-ranked officers
in the President alone, this implies that, in the absence of such a law, lower-ranked
officers have to be appointed by the President subject to confirmation by the
Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows
that higher-ranked officers should be appointed by the President, subject also to
confirmation by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,
abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law
vest their appointment in the President, in the courts, or in the heads of the various
departments, agencies, commissions, or boards in the government. No reason however is
submitted for the use of the word "alone" in said third sentence.

The Court is not impressed by both arguments. It is of the considered opinion, after a
careful study of the deliberations of the 1986 Constitutional Commission, that the use of
the word "alone" after the word "President" in said third sentence of Sec. 16, Article VII
is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the
1935 Constitution, the following provision appears at the end of par. 3, section 10, Article
VII thereof
". . .; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of
departments." [Emphasis supplied]

The above provision in the 1935 Constitution appears immediately after the provision
which makes practically all presidential appointments subject to confirmation by the
Commission on Appointments, thus
"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 provided for, and those whom
he may be authorized by law to appoint; . . ."

In other words, since the 1935 Constitution subjects, as a general rule, presidential
appointments to confirmation by the Commission on Appointments, the same 1935
Constitution saw fit, by way of an exception to such rule, to provide that Congress
may, however, by law vest the appointment of inferior officers (equivalent to "officers
lower in rank" referred to in the 1987 Constitution) in the President alone, in the
courts, or in the heads of departments.
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent
of its framers was to exclude presidential appointments from confirmation by the
Commission on Appointments, except appointments to offices expressly mentioned in the
first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the
third sentence of Sec. 16, Article VII the word "alone" after the word "President" in
providing that Congress may by law vest the appointment of lower-ranked officers in the
President alone, or in the courts, or in the heads of departments, because the power to
appoint officers whom he (the President) may be authorized by law to appoint is already
vested in the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the
case of lower-ranked officers, the Congress may by law vest their appointment in the
President, in the courts, or in the heads of various departments of the government. In
short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987
Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the

1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16,
Article VII. And, this redundancy cannot prevail over the clear and positive intent of the
framers of the 1987 Constitution that presidential appointments, except those mentioned
in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the
Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the
first group of appointments where the consent of the Commission on Appointments is
required. As a matter of fact, as already pointed out, while the 1935 Constitution includes
"heads of bureaus" among those officers whose appointments need the consent of the
Commission on Appointments, the 1987 Constitution, on the other hand, deliberately
excluded the position of "heads of bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of
the Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937,
otherwise known as the Tariff and Customs Code of the Philippines, which was enacted
by the Congress of the Philippines on 22 June 1967, reads as follows:
prcd

"601. Chief Officials of the Bureau. The Bureau of Customs shall have one
chief and one assistant chief, to be known respectively as the Commissioner
(hereinafter known as the 'Commissioner') and Assistant Commissioner of
Customs, who shall each receive an annual compensation in accordance with
the rates prescribed by existing laws. The Assistant Commissioner of Customs
shall be appointed by the proper department head."

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential
Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as
thus amended, now reads as follows:
"Sec. 601. Chief Officials of the Bureau of Customs. The Bureau of Customs
shall have one chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as Commissioner) and Deputy Commissioner
of Customs, who shall each receive an annual compensation in accordance with
the rates prescribed by existing law. The Commissioner and the Deputy
Commissioner of Customs shall be appointed by the President of the
Philippines" (Emphasis supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the
effectivity of the 1935 Constitution, under which the President may nominate and, with
the consent of the Commission on Appointments, appoint the heads of bureaus, like the
Commissioner of the Bureau of Customs.

After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No.
34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the
appointment of the Commissioner of the Bureau of Customs is one that devolves on the
President, as an appointment he is authorized by law to make, such appointment,
however, no longer needs the confirmation of the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the
Bureau of Customs, without submitting his nomination to the Commission on
Appointments for confirmation. He is thus entitled to exercise the full authority and
functions of the office and to receive all the salaries and emoluments pertaining thereto.
Cdpr

WHEREFORE, the petition and petition in intervention should be, as they are, hereby
DISMISSED. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its constitutional duty,
to adjudicate promptly the issue at bar and to rule that the direct appointment of
respondent Salvador Mison as Commissioner of the Bureau of Customs (without need of
submitting a prior nomination to the Commission on Appointments and securing its
confirmation) is valid and in accordance with the President's constitutional authority to so
appoint officers of the Government as defined in Article VII, section 16 of the 1987
Constitution. The paramount public interest and the exigencies of the public service
demand that any doubts over the validity of such appointments be resolved expeditiously
in the test case at bar.
LibLex

It should be noted that the Court's decision at bar does not mention nor deal with the
Manifestation of December 1, 1987 filed by the intervenor that Senate Bill No. 137
entitled "An Act Providing For the Confirmation By the Commission on Appointments of
All Nominations and Appointments Made by the President of the Philippines" was passed
on 23 October 1987 and was "set for perusal by the House of Representatives." This
omission has been deliberate. The Court has resolved the case at bar on the basis of the
issues joined by the parties. The contingency of approval of the bill mentioned by
intervenor clearly has no bearing on and cannot affect retroactively the validity of the
direct appointment of respondent Mison and other appointees similarly situated as in G.R.

No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor-Santiago." The Court does not
deal with constitutional questions in the abstract and without the same being properly
raised before it in a justiciable case and after thorough discussion of the various points of
view that would enable it to render judgment after mature deliberation. As stressed at the
hearing of December 8, 1987, any discussion of the reported bill and its validity or
invalidity is premature and irrelevant and outside the scope of the issues resolved in the
case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento,
and simply wish to add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
"The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution.
He shall also appoint all other officers of the Government whose appointments
are not otherwise provided for by law, and those whom he may be authorized by
law to appoint.
The Congress may, by law, vest the appointment of other officers lower in rank
in the President alone, in the courts, or in the heads of the departments,
agencies, commissions or boards.
"The President shall have the power to make appointments during the recess of
the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until
the next adjournment of the Congress" (Emphasis and 1st three paragraphings,
supplied).

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

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in
the second sentence from confirmation by the Commission on Appointments is, to my
mind, quite clear. So also is the fact that the term "appoint" used in said sentence was not
meant to include the three distinct acts in the appointing process, namely, nomination,
appointment, and commission. For if that were the intent, the same terminologies in the
first sentence could have been easily employed.
There should be no question either that the participation of the Commission on
Appointments in the appointment process has been deliberately decreased in the 1987
Constitution compared to that in the 1935 Constitution, which required that all
presidential appointments be with the consent of the Commission on Appointments.
Cdpr

The interpretation given by the majority may, indeed, lead to some incongruous situations
as stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself
to the future. The task of constitutional construction is to ascertain the intent of the
framers of the Constitution and thereafter to assure its realization (J.M. Tuason & Co.,
Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA
413). And the primary source from which to ascertain constitutional intent is the language
of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential appointments are
subject to prior Congressional confirmation, thus:
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 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 recess of the
Congress, whether voluntary or compulsory, but such appointment shall be
effective only until disapproval by the Commission on Appointments or until
the next adjournment of the Congress. 1

By its plain language, the Constitution has intended that only those grouped under the
first sentence are required to undergo a consenting process. This is a significant departure
from the procedure set forth in the 1935 Charter:
cdphil

(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 to commander, and all other officers of the
Government whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; but the Congress may by
law vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments. 2

under which, as noted by the majority, "almost all presidential appointments required
the consent (confirmation) of the Commission on Appointments." 3 As far as the
present Charter is concerned, no extrinsic aid is necessary to ascertain its meaning.
Had its framers intended otherwise, that is to say, to require all Presidential
appointments clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the
President may make: (1) appointments of heads of executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and those of other officers whose appointments are vested in
him under the Constitution, including the regular members of the Judicial and Bar
Council, 5 the Chairman and Commissioners of the Civil Service Commission, 6 the
Chairman and Commissioners of the Commission on Elections, 7 and the Chairman and
Commissioners of the Commission on Audit; 8 (2) those officers whose appointments are
not otherwise provided for by law; (3) those whom he may be authorized by law to
appoint; and (4) officers lower in rank whose appointments the Congress may vest in the
President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law
have written a "rather confused Constitution" 9 with respect, to a large extent, to its other
parts, and with respect, to a certain extent, to the appointing clause itself, in the sense that
it leaves us for instance, with the incongruous situation where a consul's appointment
needs confirmation whereas that of Undersecretary of Foreign Affairs, his superior, does
not. But the idiosyncracies, as it were, of the Charter is not for us to judge. That is a
question addressed to the electorate, and who, despite those "eccentricities," have
stamped their approval on that Charter. "The Court," avers the majority, "will thus
construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with
what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of
executive power. 11 The fact that the Constitution has provided for a Commission on
Appointments does not minimize the extent of such a power, much less, make it a shared
executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain

terms that "[a]ppointment to office is intrinsically an executive act involving the exercise
of discretion." 12 Springer v. Philippine Islands 13 on the other hand, underscored the
fact that while the legislature may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it may prescribe the qualifications
therefor, it cannot circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself conferring the
appointment.
Thus, notwithstanding the existence of a Commission on Appointments, the Chief
Executive retains his supremacy as the appointing authority. In case of doubt, the same
should be resolved in favor of the appointing power.
LLpr

It is the essence of a republican form of government, like ours, that "[e]ach department of
the government has exclusive cognizance of matters within its jurisdiction." 14 But like
all genuine republican systems, no power is absolutely separate from the other. For
republicanism operates on a process of checks and balances as well, not only to guard
against excesses by one branch, but more importantly, "to secure coordination in the
workings of the various departments of the government." 15 Viewed in that light, the
Commission on Appointments acts as a restraint against abuse of the appointing
authority, but not as a means with which to hold the Chief Executive hostage by a
possibly hostile Congress, an unhappy lesson as the majority notes, in our history under
the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on appointments. The
prohibition, for instance, against the enactment of a bill of attainder operates as a bar
against legislative encroachment upon both judicial and executive domains, since the
determination of guilt and punishment of the guilty address judicial and executive
functions, respectively. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that
cuts both ways. In a very real sense, the power of appointment constitutes a check against
legislative authority. In Springer v. Philippine Islands, 17 we are told that "Congress may
not control the law enforcement process by retaining a power to appoint the individual
who will execute the laws." 18 This is so, according to one authority, because "the
appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks to
preserve an executive check upon legislative authority in the interest of avoiding an
undue concentration of power in Congress." 19

The President has sworn to "execute [the] laws. 20 For that matter, no other department
of the Government may discharge that function, least of all, Congress. Accordingly, a
statute conferring upon a commission the responsibility of administering that very

legislation and whose members have been determined therein, has been held to be
repugnant to the Charter." 21 Execution of the laws, it was held, is the concern of the
President, and in going about this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause
provided by law." 22 Parenthetically, this represents a deviation from the rule prevailing
in American jurisdiction that "the power of removal . . . [is] incident to the power of
appointment," 23 although this has since been tempered in a subsequent case, 24 where it
was held that the President may remove only "purely executive officers," 25 that is,
officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the
President may remove incumbents of offices confidential in nature, but we likewise made
clear that in such a case, the incumbent is not "removed" within the meaning of civil
service laws, but that his term merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under
the 1987 Constitution, is itself subject to some check. Under the Charter, "[t]he
Commission shall act on all appointments submitted to it within thirty session days of the
Congress from their submission." 27 Accordingly, the failure of the Commission to either
consent or not consent to the appointments preferred before it within the prescribed
period results in a de facto confirmation thereof.
LLpr

Certainly, our founding fathers have fashioned a Constitution where the boundaries of
power are blurred by the predominance of checks and counterchecks, yet amid such a
rubble of competing powers emerges a structure whose parts are at times jealous of each
other, but which are ultimately necessary in assuring a dynamic, but stable, society. As
Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of
black and white. Even the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to the other. . . . When we come
to the fundamental distinctions it is still more obvious that they must be
received with a certain latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative
and executive action with mathematical precision and divide the branches into
watertight compartments, were it ever so desirable to do so, which I am far from
believing that it is, or that the Constitution requires. 28

xxx xxx xxx

We are furthermore told:
xxx xxx xxx
. . . [I]t will be vital not to forget that all of these "checks and
counterpoises, which Newton might readily have recognized as suggestive
of the mechanism of the heavens," [W. Wilson, Constitutional
Government in the United States 56 (1908)] can represent only the
scaffolding of a far more subtle "vehicle of life." (Id. at 192: "The
Constitution cannot be regarded as a mere legal document, to be read as a
will or a contract would be. It must, of the necessity of the case, be a
vehicle of life.") The great difficulty of any theory less rich, Woodrow
Wilson once warned, "is that government is not a machine, but a living
thing. It falls, not under the theory of the universe, but under the theory of
organic life. It is accountable to Darwin, not to Newton. It is . . . shaped to
its functions by the sheer pressure of life. No living thing can have its
organs offset against each other as checks, and live." (Id. at 56.) Yet
because no complex society can have its centers of power not "offset
against each other as checks," and resist tyranny, the Model of Separated
and Divided Powers offers continuing testimony to the undying dilemmas
of progress and justice. 29

xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution
deliberately denied the legislature (the National Assembly under the 1971 draft
Constitution) the power to check executive appointments, and hence, granted the
President absolute appointing power. 30 As a delegate to, and Vice-President of, the illfated 1971 Constitutional Convention, and more so as the presiding officer of most of its
plenary session, I am aware that the Convention did not provide for a commission on
appointments on the theory that' the Prime Minister, the head of the Government and the
sole appointing power, was himself a member of parliament. For this reason, there was
no necessity for a separate body to scrutinize his appointees. But should such appointees
forfeit the confidence of the assembly, they are, by tradition, required to resign, unless
they should otherwise have been removed by the Prime Minister. 31 In effect, it is
parliament itself that "approves" such appointments. Unfortunately, supervening events
forestalled our parliamentary experiment, and beginning with the 1976 amendments and
some 140 or so amendments thereafter, we had reverted to the presidential form, 32
without provisions for a commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article
VII of the present Constitution, must pass prior Congressional scrutiny, it is a test that
operates as a mere safeguard against abuse with respect to those appointments. It does not

accord Congress any more than the power to check, but not to deny, the Chief Executive's
appointing power or to supplant his appointees with its own. It is but an exception to the
rule. In limiting the Commission's scope of authority, compared to that under the 1935
Constitution, I believe that the 1987 Constitution has simply recognized the reality of that
exception.
LLpr

GUTIERREZ, JR., J., dissenting:

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme
law of the land, should never have any of its provisions interpreted in a manner that
results in absurd or irrational consequences.
The Commission on Appointments is an important constitutional body which helps give
fuller expression to the principles inherent in our presidential system of government. Its
functions cannot be made innocuous or unreasonably diminished to the confirmation of a
limited number of appointees. In the same manner that the President shares in the
enactment of laws which govern the nation, the legislature, through its Commission on
Appointments, gives assurance that only those who can pass the scrutiny of both the
President and Congress will help run the country as officers holding high appointive
positions. The third sentence of the first paragraph ". . . 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." specifies only
"officers lower in rank" as those who may, by law, be appointed by the President alone.
If as expounded in the majority opinion, only the limited number of officers in the first
sentence of Section 16 require confirmation, the clear intent of the third sentence is lost.
In fact both the second and third sentences become meaningless or superfluous.
Superfluity is not to be read into such an important part of the Constitution.
LLphil

I agree with the intervenor that all provisions of the Constitution on appointments must
be read together. In providing for the appointment of members of the Supreme Court and
judges of lower courts (Section 9, Article VIII), the Ombudsman and his deputies
(Section 9, Article XI), the Vice President as a member of cabinet (Section 3, Article VII)
and, of course, those who by law the President alone may appoint, the Constitution
clearly provides no need for confirmation. This can only mean that all other appointments
need confirmation. Where there is no need for confirmation or where there is an
alternative process to confirmation, the Constitution expressly so declares. Without such
a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments
because the government it set up was supposed to be a parliamentary one. The Prime
Minister, as head of government, was constantly accountable to the legislature. In our
presidential system, the interpretation which Justice Cruz and myself espouse, is more

democratic and more in keeping with the system of government organized under the
Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows:
Confirmation is required only for the officers mentioned in the first sentence of Section
16, to wit: (1) the heads of the executive departments; (2) ambassadors, other public
ministers and consuls; (3) officers of the armed forces from the rank of colonel or naval
captain; and (4) other officers whose appointments are vested in the President in the
Constitution. No confirmation is required under the second sentence for (1) all other
officers whose appointments are not otherwise provided for by law, and (2) those whom
the President may be authorized by law to appoint. Neither is confirmation required by
the third sentence for those other officers lower in rank whose appointment is vested by
law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head
of his department, does not have to be confirmed by the Commission on Appointments,
but the ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is
by any standard lower in rank than the Chairman of the Commission on Human Rights,
which was created by the Constitution; yet the former is subject to confirmation but the
latter is not because he does not come under the first sentence. The Special Prosecutor,
whose appointment is not vested by the Constitution in the President, is not subject to
confirmation under the first sentence, and neither are the Governor of the Central Bank
and the members of the Monetary Board because they fall under the second sentence as
interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the
regional consultative commission, whose appointment is vested by the Constitution in the
President under Article X, Section 18, their confirmation is required although their rank
is decidedly lower.

I do not think these discrepancies were intended by the framers as they would lead to the
absurd consequences we should avoid in interpreting the Constitution.
cdll

There is no question that bureau directors are not required to be confirmed under the first
sentence of Section 16, but that is not the provision we ought to interpret. It is the second
sentence we must understand for a proper resolution of the issues now before us.
Significantly, although there was a long discussion of the first sentence in the
Constitutional Commission, there is none cited on the second sentence either in the
Solicitor-General's comment or in the majority opinion. We can therefore only speculate

on the correct interpretation of this provision in the light of the first and third sentences of
Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence
and holds that the two sets of officers specified therein may be appointed by the President
without the concurrence of the Commission on Appointments. This interpretation is
pregnant with mischievous if not also ridiculous results that presumably were not
envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all,
considering the majority opinion that the enumeration in the first sentence of the officers
subject to confirmation is exclusive on the basis of expressio unius est exclusio alterius.
If that be so, the first sentence would have been sufficient by itself to convey the idea that
all other appointeesof the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need
confirmation, it was still felt necessary to provide in the third sentence that the
appointment of the other officers lower in rank will also not need confirmation as long as
their appointment is vested by law in the President alone. The third sentence would
appear to be superfluous, too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in the President
alone the appointment of those other officers lower in rank mentioned in the third
sentence? Conformably to the language thereof, these lower officers will need the
confirmation of the Commission on Appointments while, by contrast, the higher officers
mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers
lower in rank than the bureau director, will have to be confirmed if the Congress does not
vest their appointment in the President along under the third sentence. On the other hand,
their superior, the bureau director himself, will not need to be confirmed because,
according to the majority opinion, he falls not under the first sentence but the second.
This is carefulness in reverse, like checking the bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was
to restrict the powers of the Presidency and so prevent the recurrence of another
dictatorship. Among the many measures taken was the restoration of the Commission on
Appointments to check the appointing power which had been much abused by President
Marcos. We are now told that even as this body was revived to limit appointments, the
scope of its original authority has itself been limited in the new Constitution. I have to
disagree.

My own reading is that the second sentence is but a continuation of the idea expressed in
the first sentence and simply mentions the other officers appointed by the President who
are also subject to confirmation. The second sentence is the later expression of the will of
the framers and so must be interpreted as complementing the rule embodied in the first
sentence or, if necessary, reversing the original intention to exempt bureau directors from
confirmation. I repeat that there were no debates on this matter as far as I know, which
simply means that my humble conjecture on the meaning of Section 16 is as arguable, at
least, as the suppositions of the majority. We read and rely on the same records. At any
rate, this view is more consistent with the general purpose of Article VII, which, to
repeat, was to reduce the powers of the Presidency.
LLphil

The respondent cites the following exchange reported in page 520, Volume II, of the
Record of the Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on page 7, line
28, I propose to put a period (.) after 'captain' and on line 29, delete 'and all' and
substitute it with HE SHALL ALSO APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts the proposed
amendment because it makes it clear that those other officers mentioned therein
do not have to be confirmed by the Commission on Appointments.

However, the records do not show what particular part of Section 16 the committee
chairman was referring to, and a reading in its entirety of this particular debate will
suggest that the body was considering the first sentence of the said section, which I
reiterate is not the controversial provision. In any case, although the excerpt shows
that the proposed amendment of Commissioner Foz was accepted by the committee, it
is not reflected, curiously enough, in the final version of Section 16 as a perusal
thereof will readily reveal. Whether it was deleted later in the session or reworded by
the style committee or otherwise replaced for whatever reason will need another
surmise on this rather confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic
aids and are at best persuasive only and not necessarily conclusive. Interestingly, some
quarters have observed that the Congress is not prevented from adding to the list of
officers subject to confirmation by the Commission on Appointments and cite the debates
on this matter in support of this supposition. It is true enough that there was such a
consensus, but it is equally true that this thinking is not at all expressed, or even only
implied, in the language of Section 16 of Article VII. Which should prevail then the
provision as worded or the debates?
LLpr

It is not disputed that the power of appointment is executive in nature, but there is no
question either that it is not absolute or unlimited. The rule re-established by the new
Constitution is that the power requires confirmation by the Commission on Appointments

as a restraint on presidential excesses, in line with the system of checks and balances. I
submit it is the exception to this rule, and not the rule, that should be strictly construed.
In my view, the only officers appointed by the President who are not subject to
confirmation by the Commission on Appointments are (1) the members of the judiciary
and the Ombudsman and his deputies, who are nominated by the Judicial and Bar
Council; (2) the Vice-President when he is appointed to the Cabinet; and (3) "other
officers lower in rank," but only when their appointment is vested by law in the President
alone. It is clear that this enumeration does not include the respondent Commissioner of
Customs who, while not covered by the first sentence of Section 16, comes under the
second sentence thereof as I would interpret it and so is also subject to confirmation.
I vote to grant the petition.
|||

(Sarmiento III v. Mison, G.R. No. L-79974, December 17, 1987)

EN BANC
[G.R. No. L-69137. August 5, 1986.]
FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE
COMMISSION and FELICULA TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.
SYLLABUS
1. ADMINISTRATIVE LAW; CIVIL SERVICE COMMISSION; NOT EMPOWERED
TO DETERMINE THE KIND OR NATURE OF THE APPOINTMENT EXTENDED
BY THE APPOINTING OFFICER. The Civil Service Commission is not empowered
to determine the kind or nature of the appointment extended by the appointing officer, its
authority being limited to approving or reviewing the appointment in the light of the
requirements of the Civil Service Law. When the appointee is qualified and all the other
legal requirements are satisfied, the Commission has no choice but to attest to the
appointment in accordance with the Civil Service Laws. As Justice Ramon C. Fernandez
declared in the case of In Re: Elvira C. Arrega, 89 SCRA 318, 322, "It is well settled that
the determination of the kind of appointment to be extended lies in the official vested by
law with the appointing power and not the Civil Service Commission. The Commissioner
of Civil Service is not empowered to determine the kind or nature of the appointment
extended by the appointing officer. When the appointee is qualified, as in this case, the
Commissioner of Civil Service has no choice but to attest to the appointment. Under the
Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to
curtail the discretion of the appointing official on the nature or kind of the appointment to
be extended."
2. ID.; ID.; APPROVAL BY THE COMMISSIONER; AN ATTESTATION OF
COMPLIANCE WITH THE CIVIL SERVICE LAW; PURPOSE. The approval is
more appropriately called an attestation, that is, of the fact that the appointee is qualified
for the position to which he has been named. As we have repeatedly held, such attestation
is required of the Commissioner of Civil Service merely as a check to assure compliance
with Civil Service Laws. 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." 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 on or as the Decrees says, "approves" or
"disapproves" an appointment made by the proper authorities.
3. ID.; CIVIL SERVICE RULES OF PERSONNEL ACTIONS AND POLICIES;
NEXT-IN-RANK, NOT ABSOLUTE. In preferring the private respondent to the
petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil
Service Rules on Personnel Actions and Policies, which provides that "whenever there
are two or more employees who are next-in-rank, preference shall be given to the
employee who is most competent and qualified and who has the appropriate civil service
eligibility." This rule is inapplicable, however, because neither of the claimants is next in
rank. Moreover, the next-in-rank rule is not absolute as the Civil Service Decree allows
vacancies to be filled by transfer of present employees, reinstatement, reemployment, or
appointment of outsiders who have the appropriate eligibility.

DECISION

CRUZ, J :
p

Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous
record, the facts of this case may be briefly narrated as follows:
The petitioner was appointed Administrative Officer II, Office of the City Mayor, Cebu
City, by Mayor Florentino Solon on February 18, 1983. 1 The appointment was described
as "permanent" but the Civil Service Commission approved it as "temporary," subject to
the final action taken in the protest filed by the private respondent and another employee,
and provided "there (was) no pending administrative case against the appointee, no
pending protest against the appointment nor any decision by competent authority that will
adversely affect the approval of the appointment." 2 On March 22, 1984, after protracted
hearings the legality of which does not have to be decided here, the Civil Service
Commission found the private respondent better qualified than the petitioner for the
contested position and, accordingly, directed "that Felicula Tuozo be appointed to the
position of Administrative Officer II in the Administrative Division, Cebu City, in place
of Felimon Luego whose appointment as Administrative Officer II is hereby revoked." 3
The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor

Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now
before us to question that order and the private respondent's title.
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, ordering his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be
validly replaced in the instant case because his appointment was temporary and therefore
could be withdrawn at will, with or without cause. Having accepted such an appointment,
it is argued, the petitioner waived his security of tenure and consequently ran the risk of
an abrupt separation from his office without violation of the Constitution. 5
While the principle is correct, and we have applied it many times, 6 it is not correctly
applied in this case. The argument begs the question. The appointment of the petitioner
was not temporary but permanent and was therefore protected by Constitution. The
appointing authority indicated that it was permanent, as he had the right to do so, and it
was not for the respondent Civil Service Commission to reverse him and call it
temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the
character of the appointment, which was clearly described as "Permanent" in the space
provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was
temporary was the approval of the appointment, not the appointment itself. And what
made the approval temporary was the fact that it was made to depend on the condition
specified therein and on the verification of the qualifications of the appointee to the
position.
The Civil Service Commission is not empowered to determine the kind or nature of the
appointment extended by the appointing officer, its authority being limited to approving
or reviewing the appointment in the light of the requirements of the Civil Service Law.
When the appointee is qualified and all the other legal requirements are satisfied, the
Commission has no choice but to attest to the appointment in accordance with the Civil
Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
"It is well settled that the determination of the kind of appointment to be
extended lies in the official vested by law with the appointing power and not the
Civil Service Commission. The Commissioner of Civil Service is not
empowered to determine the kind or nature of the appointment extended by the
appointing officer. When the appointee is qualified, as in this case, the
Commissioner of Civil Service has no choice but to attest to the appointment.
Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is

not authorized to curtail the discretion of the appointing official on the nature or
kind of the appointment to be extended." 8

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the
appointee is qualified for the position to which he has been named. As we have
repeatedly held, such attestation is required of the Commissioner of Civil Service merely
as a check to assure compliance with Civil Service Laws. 9
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.
It is different where the Constitution or the law subjects the appointment to the approval
of another officer or body, like the Commission on Appointments under 1935
Constitution. 10 Appointments made by the President of the Philippines had to be
confirmed by that body and could not be issued or were invalidated without such
confirmation. In fact, confirmation by the Commission on Appointments was then
considered part of the appointing process, which was held complete only after such
confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the
appointment and had the power to refuse to concur with it even if the President's choice
possessed all the qualifications prescribed by law. No similar arrangement is provided for
in the Civil Service Decree. On the contrary, the Civil Service Commission is limited
only to the non-discretionary authority of determining whether or not the person
appointed meets all the required conditions laid down by the law.

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 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. 12 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.
In preferring the private respondent to the petitioner, the Commission was probably
applying its own Rule V, Section 9, of Civil Service Rules on Personnel Actions and
Policies, which provides that "whenever there are two or more employees who are nextin-rank, preference shall be given to the employee who is most competent and qualified
and who has the appropriate civil service eligibility." This rule is inapplicable, however,
because neither of the claimants is next in rank. Moreover, the next-in rank rule is not
absolute as the Civil Service Decree allows vacancies to be filled by transfer of present
employees, reinstatement, reemployment, or appointment of outsiders who have the
appropriate eligibility. 13
There are apparently no political overtones in this case, which looks to be an honest
contention between two public functionaries who each sincerely claims to be entitled to
the position in dispute. This is gratifying for politics should never be permitted to
interfere in the apolitical organization of the Civil Service, which is supposed to serve all
the people regardless of partisan considerations. This political detachment will be
impaired if the security of tenure clause in the Constitution is emasculated and
appointments in the Civil Service are revoked and changed at will to suit the motivations
and even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated
March 22, 1984, is set aside, and the petitioner is hereby declared to be entitled to the
office in dispute by virtue of his permanent appointment thereto dated February 18, 1983.
No costs.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr.,
and Paras, JJ., concur.

|||

(Luego v. CSC, G.R. No. L-69137, August 05, 1986)

SECOND DIVISION
[G.R. No. L-3081. October 14, 1949.]
ANTONIO LACSON, petitioner, vs. HONORIO ROMERO ET AL.,
respondents.
Cruz, Puno & Lacson for petitioner.
The respondent Provincial Fiscal in his own behalf.
Solicitor General Felix Bautista Angelo and Assistant Solicitor Inocencio
Rosal for respondent Judge.
Avena, Villaflores & Lopez for other respondents.
SYLLABUS
1. PUBLIC OFFICERS; PROVINCIAL FISCAL; APPOINTMENT OF;
INVOLVES SEVERAL STEPS. The appointment of provincial fiscal to be
complete involves several steps. First, comes the nomination by the President. Then to
make that nomination valid and permanent, the Commission on Appointments of the
Legislature has to confirm said nomination. The last step is the acceptance thereof by
the appointee by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the Executive and
Legislative departments of the Government. But the last necessary step to make the
appointment complete and effective rests solely with the appointee himself. He may
or he may not accept the appointment or nomination as there is no power in this
country which can compel a man to accept an office.
2. ID.; ID.; APPOINTMENT AND TRANSFER TO ANOTHER PROVINCE
IS EQUIVALENT TO REMOVAL OR SEPARATION; ILLEGALITY. The
appointment and transfer of a provincial fiscal from one province to another would
mean his removal or separation from the first province. The reason is that a fiscal is
appointed for each province. Said removal is illegal and unlawful unless for cause as
provided by law and the Constitution, and the confirmation of the nomination by the
Commission on Appointments does not and cannot validate the removal, since the
Constitution is equally binding on the Legislature.
3. ID.; ID.; NATURE OF OFFICE. A provincial fiscal who is nominated
and appointed by the President with the consent of the Commission on Appointments,
is under section 671 (b) of the Revised Administrative Code included in the
unclassified service of the Civil Service.

4. ID.; ID.; CONSTITUTIONAL PROHIBITION; PRESIDENT WITH

CONCURRENCE OF COMMISSION ON APPOINTMENTS MAY NOT REMOVE
FISCAL WITHOUT CAUSE. A provincial fiscal as a civil service official may not
be removed from office even by the President who appointed him, and even with the
consent of the Commission on Appointments, except for cause. Article XII, section 4
of the Constitution provides that no officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law. This constitutional
prohibition is a limitation to the inherent power of the Executive to remove those civil
service officials whom he appoints.
5. ID.; ID.; TENURE OF OFFICE. A provincial fiscal duly appointed, until
he reaches the age of 65 has the right to continue in office unless sooner removed for
cause. In other words, he enjoys tenure of office, which is duly protected by statute
and by the Constitution.
6. ID.; REMOVAL OR SUSPENSION OF A CIVIL SERVICE OFFICIAL
OR EMPLOYEE, REQUISITES OF. By the mandate of sections 64 and 694 of the
Revised Administrative Code, before a civil service official or employee can be
removed, there must first be an investigation at which he must be given a fair hearing
and an opportunity to defend himself.
7. ID.; REMOVAL WITHOUT LAWFUL CAUSE IN THE GUISE OF
TRANSFER FROM ONE OFFICE TO ANOTHER WITHOUT TRANSFEREE'S
CONSENT, EFFECT OF. To permit circumvention of the constitutional
prohibition (Art. XII, sec. 4) by allowing removal from office without lawful cause, in
the form or guise of transfers from one office to another, or from one province to
another, without the consent of the transferee, would blast the hopes of those young
civil service officials and career men and women, destroy their security and tenure of
office and made for a subservient, discontented and inefficient civil service force that
sways with every political wind that blows and plays up to whatever political party is
in the saddle. That would be far from what the framers of our Constitution
contemplated and desired. Neither would that be our concept of a free and efficient
Government force, possessed of self-respect and reasonable ambition.

DECISION

MONTEMAYOR, J :
p

Involved in these quo warranto proceedings filed directly with this Court is the
Office of Provincial Fiscal of Negros Oriental, and the right to said position as
between the petitioner Antonio Lacson and the respondent Honorio Romero.

The facts necessary for the decision in this case may be stated as follows:
Petitioner Lacson was on July 25, 1946, appointed by the President of the Philippines,
provincial fiscal of Negros Oriental. The appointment was confirmed by the
Commission on Appointments on August 6, 1946. He took his oath of office on
August 10, 1946, and thereafter performed the duties of that office.
Upon recommendation of the Secretary of Justice, on May 17, 1949, the
President nominated petitioner Lacson to the post of provincial fiscal of Tarlac. On
the same date, the President nominated for the position of provincial fiscal of Negros
Oriental respondent Romero. Both nominations were simultaneously confirmed by the
Commission on Appointments on May 19, 1949.
Lacson neither accepted the appointment nor assumed the office of fiscal of
Tarlac. But respondent Romero took his oath of office (the post of fiscal of Negros
Oriental) in Manila on June 16, 1949, notified the Solicitor General of the fact, and
thereafter proceeded to his station. Upon arrival at Dumaguete City, capital of Negros
Oriental, he notified Lacson of his intention to take over the office the following day,
but Lacson objected. On June 24, 1949, Romero appeared in criminal case No. 4433
before Judge Gregorio S. Narvasa. In said appearance, petitioner Lacson filed his
objection and asked that Romero's appearance be stricken from the record. After
Romero had exhibited his credentials as required by the court, Judge Narvasa on the
same day denied the petition of Lacson and recognized respondent Romero as the
provincial fiscal of Negros Oriental. On June 27, 1949, Romero appeared in Special
Proceedings No. 630 before Judge Felicisimo Ocampo. Lacson again objected to said
appearance but the court overruled his objection. This will explain why Judges
Narvasa and Ocampo were made respondents in these quo warranto proceedings.
When petitioner Lacson requested payment of his salary for the period from
June 16 to June 23, 1949 as provincial fiscal of Negros Oriental, Angel Paguia,
Provincial Auditor and L. J. Alfabeto, Provincial Treasurer turned down his claim and
instead paid respondent Romero the salary for the position of provincial fiscal from
June 16, 1949, and continued paying it to him periodically up to the present time.
Their action was based on a reply given to their query, by the Secretary of Justice to
the effect that Romero was the provincial fiscal of Negros Oriental. This is the reason
why the Auditor and the Treasurer of Negros Oriental were likewise made
respondents in these proceedings.
The purpose of the present action is to establish the right of the petitioner to the
post of provincial fiscal of Negros Oriental and to oust the respondent Romero
therefrom. The petition and the memorandum in support thereof among other things
contain the following prayer:
"(1) Recognizing the right of petitioner Antonio Lacson to hold and
occupy the position of provincial fiscal of Negros Oriental;
"(2) Declaring the respondent Honorio Romero guilty of usurpation,
unlawful holding and exercise of the functions and duties of provincial fiscal of

Negros Oriental; ordering the exclusion of said respondent from said office; and
ordering him to surrender to herein petitioner all records and papers
appertaining to said office that may have come into his possession;
"(3) Ordering respondents provincial treasurer L. J. Alfabeto and
provincial auditor Angel Paguia, or their successors in office, to pay herein
petitioner his salary commencing June 16, 1949, up to the present time and until
herein petitioner shall have legally ceased to be the incumbent of said office;
and
"(4) Ordering respondent Honorio Romero to pay the costs."

Incidentally, and to serve as background in the consideration of this case, it

may be stated that when the nominations of Lacson and Romero to the posts of
Provincial Fiscal of Tarlac and Negros Oriental, respectively, were made in May,
1949, Negros Oriental was a second class province with a salary of P5,100 per annum
for the post of provincial fiscal, while Tarlac was first class simple with a higher
salary of P5,700 per annum for its provincial fiscal. There is therefore reason to
believe that the nomination of Lacson to Tarlac or rather his attempted transfer from
Negros Oriental to Tarlac was intended and considered as a promotion. At least, there
is nothing in the record to show that he was being deliberately eased out of or
removed from his post in Negros Oriental. However, after the appointments and
confirmations, the President raised the province of Negros Oriental to the category of
First Class A province with retroactive effect as of January 1, 1949. It is alleged by
respondent Romero that after the filing of the present petition, Tarlac was likewise
raised to the category of First Class B province on July 15, 1949 so that thereafter the
salary for provincial fiscal in both province is the same, namely, P6,000 each. This
might be one of the reasons why petitioner Lacson declined to accept his nomination
to the Province of Tarlac, preferring to remain at his old post of provincial fiscal of
Negros Oriental.
The determination as to who is entitled to the position of provincial fiscal of
Negros Oriental, depends upon the correct answers to several queries such as: (1) Did
the Commission on Appointments alone, without his acceptance nomination of
Lacson to Tarlac and its confirmation by the thereof create a vacancy in the post of
provincial fiscal of Negros Oriental so that Romero could be lawfully appointed to
said vacancy? (2) Does the nomination of Lacson to Tarlac and its confirmation by
the Commission on Appointments serve as and is equivalent to a removal of Lacson
as fiscal of Negros Oriental? If in the affirmative, was that removal valid and lawful?
(3) Could the President who appointed Lacson as provincial fiscal of Negros Oriental
remove him at will and without cause, or did the post of provincial fiscal in general
have attached to it a tenure of office during which the incumbent may not be removed
except for cause?
The appointment to a government post like that of provincial fiscal to be
complete involves several steps. First, comes the nomination by the President. Then to

make that nomination valid and permanent, the Commission on Appointments of the
Legislature has to confirm said nomination. The last step is the acceptance thereof by
the appointee by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the Executive and
Legislative departments of the Government. But the last necessary step to make the
appointment complete and effective rests solely with the appointee himself. He may
or he may not accept the appointment or nomination. As held in the case of Borromeo
vs. Mariano, 41 Phil., 327, "there is no power in this country which can compel a man
to accept an office." Consequently, since Lacson has declined to accept his
appointment as provincial fiscal of Tarlac and no one can compel him to do so, then
he continues as provincial fiscal of Negros Oriental and no vacancy in said office was
created, unless Lacson had been lawfully removed as such fiscal of Negros Oriental.
As to the second question, it is obvious that the intended transfer of Lacson to
Tarlac on the basis of his nomination thereto, if carried out, would be equivalent to a
removal from his office in Negros Oriental. To appoint and transfer him from one
province to another would mean his removal or separation from the first province.
The reason is that a fiscal is appointed for each province (sec. 1673, Rev. Adm.
Code), and Lacson could not well and legally hold and occupy the two posts of fiscal
of Tarlac and Negros Oriental simultaneously. To be fiscal for Tarlac must mean his
removal from Negros Oriental.
In the case of Nicolas vs. Alberto, 51 Phil., 370, this Court held that "a transfer
of a Justice of the Peace outside of the municipality of which he is appointed is in
legal effect a combined removal and appointment." (Decision in this case was
reversed by the U. S. Supreme Court [279 U. S., 141], but on other grounds, leaving
the doctrine on transfer and removal undisturbed.) When the transfer is consented to
and accepted by the transferees, then there would be no question; but where as in the
present case, the transfer is involuntary and objected to, then it is necessary to decide
whether the removal is lawful.
What is the nature of the office of provincial fiscal? Is it included in the Civil
Service? The answer is, undoubtedly, in the affirmative. Article XII, section 1 of our
Constitution provides that "a Civil Service embracing all branches and subdivisions of
the Government shall be provided by law." Section 668 of the Administrative Code as
amended by Com. Act No. 177, sec. 6, provides that "the Philippine Civil Service
shall embrace all branches and subdivisions of the Government;" and section 670 of
the same Code provides that "persons in the Philippine Civil Service pertain either to
the classified or unclassified service." Section 671 of the same code as amended by
Commonwealth Act No. 177, section 8 in part provides as follows:
"Sec. 671. Persons embraced in unclassified service. The following
officers and employees constitute the unclassified service:
"(a) A secretary, a sergeant-at-arms, and such other officers as may be
required and chosen by the National Assembly in accordance with the
constitution.

"(b) Officers, other than the provincial treasurers and Assistant Directors
of Bureaus or Offices, appointed by the President of the Philippines, with the
consent of the Commission on Appointments of the National Assembly, and all
other officers of the Government whose appointments are by law vested in the
President of the Philippines alone.
"(c) Elective officers."
xxx xxx xxx

From the foregoing, we find that the post of provincial fiscal in the Philippines
is included in subsection (b) above-quoted particularly the underlined portion thereof.
The law regarding appointment to the post of provincial fiscal is contained in section
66 of the Administrative Code which provides that "the Governor-General (now the
President) shall appoint among other officials, Secretaries to Departments, Provincial
Treasurers, Provincial Fiscals, Register of Deeds, etc." And, Article VII, section
10(3) of the Constitution provides that the President shall nominate and with the
consent of the Commission on Appointments shall appoint among other officials, "all
other officers of the Government whose appointments are not herein otherwise
provided for" which clearly includes the office of provincial fiscal. It is therefore clear
that a provincial fiscal who is nominated and appointed by the President with the
consent of the Commission on Appointments, as was petitioner Lacson, is, under
section 671(b) above-quoted, included in the unclassified service of the Civil Service.
The next question arises as to whether the President even with the concurrence
or consent of the Commission on Appointments may remove a provincial fiscal
without cause. The Constitution itself denies said right. Article XII, section 4 of said
instrument provides that "no officer or employee in the civil service shall be removed
or suspended except for cause as provided by law." This constitutional provision is
reproduced word for word in the first paragraph of sec. 694 of the Rev. Adm. Code, as
amended by Commonwealth Act No. 177, section 22.
In order to better appreciate the meaning of this constitutional provision as well
as the purpose behind it, it is necessary to delve, though ever so lightly into the
framing of this basic instrument. The Committee on Civil Service of the
Constitutional Convention which drafted the Constitution in its report and in
advocating the merit system in connection with a civil Service system among other
things stated the following:
"The adoption of the 'merit system' in government service has secured
efficiency and social justice. It eliminates the political factor in the selection of
civil employees which is the first essential to an efficient personnel system. It
insures equality of opportunity to all deserving applicants desirous of a career in
the public service. It advocates a new concept of the public office as a career
open to all and not the exclusive patrimony of any party or faction to be doled
out as a reward for party service." (Aruego's Framing of the Constitution, Vol.
II, p. 886.)

"The 'merit system' was adopted only after the nations of the world took
cognizance of its merits. Political patronage in the government service was
sanctioned in 1789 by the constitutional right of the President of the United
States to act alone in the matter of removals. From the time of Andrew Jackson,
the principle of the 'To the victor belong the spoils' dominated the Federal
Government. The system undermined moral values and destroyed
administrative efficiency." . . . (Ibid. p. 886.)
"Since the establishment of the American Regime in the Philippines we
have enjoyed the benefits of the 'merit system.' The Schurman Commission
advocated in its report that 'the greatest care should be taken in the selection of
officials for administration. They should be men of the highest character and
fitness, and partisan politics should be entirely separated from the government.'
The fifth act passed by the Philippine Commission created a Board of Civil
Service. It instituted a system here that was far more radical and thorough than
that in the United States. The Governors-General after William Taft adopted the
policy of appointing Filipinos in the government regardless of their party
affiliation. As the result of these 'the personnel of the Civil Service had
gradually come to be one of which the people of the United States could feel
justly proud.'
"Necessity for Constitutional Provisions. The inclusion in the
constitution of provisions regarding the 'merit system' is a necessity of modern
times. As its establishment secures good government, the citizens have a right to
expect its guarantee as a permanent institution. . . . (Ibid. p. 887.)
"Separations, Suspensions, Demotions, and Transfers. The 'merit
system' will be ineffective if no safeguards are placed around the separation and
removal of public employees. The Committee's report requires that removals
shall be made only for 'causes and in the manner provided by law.' This means
that there should be bona fide reasons and action may be taken only after the
employee shall have been given a fair hearing. This affords to public employees
reasonable security of tenure." (Ibid. p. 890.)

It is contended on behalf of the respondent that the power of removal is

inherent in the power to appoint and that consequently, the President had the right to
remove the petitioner as provincial fiscal of Negros Oriental and transfer him to
Tarlac. Ordinarily, where there is no constitutional limitation the contention of the
respondent would be tenable; but where as in the Philippines and as already stated the
Constitution forbids the removal of a civil service official or employee like the
petitioner except for cause as provided by law, said right of the Chief Executive is
qualified and limited. That constitutional prohibition is a limitation to the inherent
power of the Executive to remove those civil service officials whom he appoints. This
is the reason why we find the American cases cited in support of respondent's theory
to be inapplicable. The prohibition against removal except for cause contained in our
Constitution has no counterpart in the Federal Constitution of the United States.

Again, it is contended that the provincial fiscal is not appointed for a fixed
term and that there is no tenure of office attached to the post. This contention is
without merit. As we have already stated, a provincial fiscal as a civil service official
may not be removed from office even by the President who appointed him, and even
with the consent of the Commission on Appointments, except for cause. Considering
this security and protection accorded a provincial fiscal from arbitrary and illegal
removal from office, and considering the provisions of section 1673 of the
Administrative Code which among other things provides that "after December 31,
1932 any city fiscal or assistant city fiscal of Manila, provincial fiscal or deputy
provincial fiscal over 65 years of age shall vacate his office, the logical inference is
that a provincial fiscal duly appointed, until he reaches the age of 65 has the right to
continue in office unless sooner removed for cause. In other words, he enjoys tenure
of office, which is duly protected by statute and by the Constitution.
The last part of the report of the Committee on Civil Service of the
Constitutional Convention which we have reproduced mentions this tenure of office
in its last sentence, "This affords public employees reasonable security or tenure."
Speaking of tenure of office of members of the civil service in the Philippines,
Professor Sinco in his book on Philippine Political Law has the following to say:
"Security of Tenure.
"Nothing can be more demoralizing to a group of civil servants than the
fear that they might be removed from their posts any time at the pleasure of
their superiors. It goes without saying that a demoralized force is an inefficient
force. Security of tenure is necessary in order to obtain efficiency in the civil
service. For this purpose the Constitution provides that 'no officer or employee
in the Civil Service shall be removed or suspended except for cause as provided
by law.' (Philippine Political Law by Sinco, p. 350.)
"In our discussion of the functions of the President, it was there shown
that the President's power of removal, which is implied from his power of
appointment, is very comprehensive and almost unlimited when it affects
officers holding purely executive positions. This class of officers, under the rule
laid down in the Meyers case, may be removed by the President at practically
any time and for any cause. No statutory check, such as a requirement that his
order of removal should be subject to the previous consent of the senate or the
Commission on Appointments before it could be effective, may be validly
placed upon his right to exercise this power. But the provision of the
Constitution of the Philippines, which has no counterpart in the Constitution of
the United States, makes the tenure of officers and employees in the Civil
Service secure even against the President's power of removal and even if the
officers should hold purely executive offices. The result is that the scope of the
rule established in the Meyers case is considerably modified and reduced when
applied in this jurisdiction. It may only apply in case of executive officers

appointed by the President and not belonging to the Civil Service as established
by the Constitution." (Ibid. pp. 350-351.)

It is also contended by the respondent that neither the Constitution nor the laws
passed by the Legislature mention or enumerate the cause or causes for which a civil
service official may be removed from office. We find this claim untenable. Section
686 of the Revised Administrative Code, as amended by Commonwealth Act No.
177, section 18 provides that falsification by a civil service official of his daily time
record shall render him liable to summary removal and subject him to prosecution as
provided by law. A like provision for removal and prosecution is found in section 687
of the same Code, as amended by Commonwealth Act 177, section 19 which deals
with political activity and contribution to political fund by civil service employees.
Then we have Rule XIII, section 6 of the Civil Service Rules providing thus:
"6. Discourtesy to private individuals or to Government officers or
employees, drunkenness, gambling, dishonesty, repeated or flagrant violation or
neglect of duty, notoriously disgraceful or immoral conduct, physical incapacity
due to immoral or vicious habits, incompetency, inefficiency, borrowing money
by superior officers from subordinates or lending money by subordinate to
superior officers, lending money at exhorbitant rates of interest, willful failure
to pay just debts, contracting loans of money or other property from merchants
or other persons with whom the bureau of the borrower is in business relations,
pecuniary embarrassment arising from reprehensible conduct, the pursuits of
private business, vocation, or profession without permission in writing from the
chief of the bureau or office in which employed and of the Governor-General
(now the President) or proper head of Department, disreputable or dishonest
conduct committed prior to entering the service, insubordination, pernicious
political activity, offensive political partisanship or conduct prejudicial to the
best interest of the service, or the willful violation by any person in the
Philippine civil service of any of the provisions of the Revised Civil Service Act
or rules, may be considered reasons demanding proceedings to remove for
cause, to reduce in class or grade, or to inflict other punishment as provided by
law in the discretion of the Governor-General (now the President) or proper
head of Department. No chief of a bureau or office shall knowingly continue in
the public service any subordinate officer or employee who is inefficient or who
is guilty of any of the above-named derelictions, without submitting the facts
through the Director to the Governor-General (now the President) or proper
head of Department."

The law and civil service rules above referred to clearly provide the causes or
some of the causes for removal of civil service officials; and they answer the
contention of the respondent on this point.
Section 64 of the Revised Administrative Code, providing for the particular
powers and duties of the Governor-General, now the President of the Republic, in part
reads as follows:
xxx xxx xxx

"(b) To remove officials from office conformably to law and to declare

vacant the offices held by such removed officials. For disloyalty to the United
States (now the Philippines), the Governor-General (now the President) may at
any time remove a person from any position of trust or authority under the
Government of the Philippine Islands.
"(c) To order, when in his opinion the good of the public service so
requires, an investigation or any action or the conduct of any person in the
Government service, and in connection therewith to designate the official,
committee, or person by whom such investigation shall be conducted."
xxx xxx xxx

Section 694 of the Administrative Code as amended by Commonwealth Act

No. 177, section 22, reads as follows:
"Sec. 694. Removal or suspension. No officer or employee in the
civil service shall be removed or suspended except for cause as provided by
law.
"The President of the Philippines may suspend any chief or assistant
chief of a bureau or office, and in the absence of special provision, any other
officer appointed by him, pending an investigation of charges against such
officer or pending an investigation of his bureau or office. With the approval of
the proper head of department, the chief of a bureau or office may likewise
suspend any subordinate or employee in his bureau or under his authority
pending an investigation, if the charge against such subordinate or employee
involves dishonesty, oppression, or grave misconduct or neglect in the
performance of duty."

From the sections above-quoted, the inference is inevitable that before a civil
service official or employee can be removed, there must first be an investigation at
which he must be given a fair hearing and an opportunity to defend himself. In the
case of petitioner Lacson, the record fails to show, neither is there any claim that he
has been charged with any violation of law or civil service regulation, much less
investigated and thereafter found guilty so as to authorize or warrant removal from
office.
In view of the foregoing, we are constrained to find and to hold that the
transfer of Lacson to Tarlac by his nomination to the post of provincial fiscal of that
province was equivalent to and meant his removal as provincial fiscal of Negros
Oriental; that said removal was illegal and unlawful for lack of valid cause as
provided by law and the Constitution; that the confirmation of the nomination by the
Commission on Appointments did not and could not validate the removal, since the
Constitution is equally binding on the Legislature; that a provincial fiscal is a civil
service official or employee whose tenure of office is protected by the Constitution;
and that Antonio Lacson could not be compelled to accept his appointment as
provincial fiscal of Tarlac; that having declined said appointment, he continued as
provincial fiscal of Negros Oriental; that inasmuch as he neither left, abandoned nor

resigned from his post as provincial fiscal of Negros Oriental, there was no vacancy in
said post to which the respondent could be legally appointed; and that consequently,
the appointment of the respondent was invalid.
In this connection we may point out that the Constitution having clearly limited
and qualified the Presidential power of removal in order to protect civil service
officials and employees, secure to them a reasonable tenure of office and thus give the
country the benefit of an efficient civil service based on the merit system, this Court
could do no less than give effect to the plain intent and spirit of the basic law,
specially when it is supplemented and given due course by statutes, rules and
regulations. To hold that civil service officials hold their office at the will of the
appointing power subject to removal or forced transfer at any time, would demoralize
and undermine and eventually destroy the whole Civil Service System and structure.
The country would then go back to the days of the old Jacksonian Spoils System
under which a victorious Chief Executive, after the elections could if so minded,
sweep out of office, civil service employees differing in political color or affiliation
from him, and sweep in his political followers and adherents, especially those who
have given him help, political or otherwise. A Chief Executive running for re-election
may even do this before election time not only to embarrass and eliminate his political
enemies from office but also to put his followers in power so that with their official
influence they could the better help him and his party in the elections. As may be
gathered from the report of the Committee of the Constitutional Convention which we
have reproduced at the beginning of this opinion, the framers of our Constitution, at
least the Civil Service Committee thereof, condemned said spoils system and
purposely and deliberately inserted the constitutional prohibition against removal
except for cause, which now forms the basis of this decision.
There are hundreds, yea, thousands of young, ambitious people who enter the
Civil Service not temporarily or as a makeshift, but to make a career out of it. They
give the best years of their lives to the service in the hope and expectation that with
faithful service, loyalty and some talent, they may eventually attain the upper reaches
and levels of official hierarchy.
To permit circumvention of the constitutional prohibition in question by
allowing removal from office without lawful cause, in the form or guise of transfers
from one office to another, or from one province to another, without the consent of
the transferee, would blast the hopes of these young civil service officials and career
men and women, destroy their security and tenure of office and make for a
subservient, discontented and inefficient civil service force that sways with every
political wind that blows and plays up to whatever political party is in the saddle. That
would be far from what the framers of our Constitution contemplated and desired.
Neither would that be our concept of a free and efficient Government force, possessed
of self-respect and reasonable ambition.

Incidentally, it happens that the petitioner is one of those we had in mind as

making a career of the Government service. He claims and it is not denied by the
respondent, that twenty years ago he entered the service of the Government as register
of deeds of Negros Oriental, then was promoted to the post of fiscal, first of the
Province of Palawan, then of Surigao, later of Antique and lastly of Negros Oriental
in 1946. He does not want to accept the transfer to the Province of Tarlac. His only
alternative would be to resign, sacrifice his twenty years of continuous, faithful
service and his career, and perchance his hope that some day, he might yet be
promoted to the judiciary. Not a very bright prospect or picture, not only to him but to
other civil service officials in like circumstances.
But in justice to the President and the Commission on Appointments, let it be
stated once again that it would seem that the transfer of the petitioner to Tarlac was
not meant and intended as a punishment, a disciplinary measure or demotion. It was
really a promotion, at least at the time the appointment was made. Only, that later, due
to a change in the category of Oriental Negros as a province, the transfer was no
longer a promotion in salary. And yet the respondent and the Solicitor General
insisted in the transfer despite the refusal of the petitioner to accept his new
appointment.
In conclusion, we find and declare the petitioner to be the provincial fiscal of
Negros Oriental, and the respondent not being entitled to said post, is hereby ordered
to surrender to the petitioner all the records or papers appertaining to said office that
may have come into his possession. The respondent provincial auditor and provincial
treasurer are hereby ordered to pay to the herein petitioner his salary from June 16,
1949, and as long as said petitioner continues to be the legal incumbent to the office
in question. Considering that the respondent appears to have acted in good faith and
relied upon his nomination by the President and the confirmation thereof by the
Commission on Appointments, as well as the position taken by the Solicitor General,
who sustained his appointment, we make no pronouncement as to costs.
Ozaeta, Paras, Feria, Bengzon, Tuason and Torres, JJ., concur.
REYES, J.:
I concur in the result.
|||

(Lacson v. Romero, G.R. No. L-3081, October 14, 1949)

FIRST DIVISION
[G.R. No. L-32271. January 27, 1983.]
MARCIAL COSTIN, ESTANISLAO LAJER, LIONEL KANEN as
Chief of Police; FRANCISCO TISADO, OCTAVIO TRAYA as
Municipal Mayor; DOMINGO IPONG as Municipal Treasurer; and
THE MUNICIPAL COUNCIL OF ABUYOG, LEYTE, petitioners, vs.
HONORABLE LOPE C. QUIMBO, Judge of the Court of First
Instance of Leyte, and HIGINIO VERRA, respondents.
Zoila M. Redoa and Bonifacio M. Batol for petitioners.
Leonardo L. Leonida and Francisco Aurillo for private respondent.
SYLLABUS
1. ADMINISTRATIVE LAW; PUBLIC OFFICERS; APPOINTMENTS; NOT
POSSIBLE IN A NON-VACANT POSITION; CASE AT BAR. It is elementary in
the law of public officers that no person, no matter how qualified and eligible he is for a
certain position may be appointed to an office which is not vacant. There can be no
appointment to a non-vacant position. The incumbent must first be legally removed or his
appointment validly terminated. In the case at bar, since petitioner Lajer was not validly
terminated from public office and, as a matter of fact, was ordered reinstated through a
writ of mandamus, by no less than the Court of Appeals, it follows that there was no
vacancy in the office of chief of police on January 14, 1960 and there was no office to
which respondent Higinio Verra could have been appointed.
2. ID.; ID.; ID.; REQUISITE FOR FINALITY AND COMPLETENESS; DEFECT
CANNOT BE INVOKED BY APPOINTEE WHO CAUSED NON-COMPLIANCE
THEREWITH; CASE AT BAR. While private respondent is correct in asserting that
when the promotional appointment of petitioner was made in 1959, it could not be
considered final or complete under Section 2 (a) of Rule VI, the Civil Service Rules
implementing Section 16 (b) of Republic Act 2260 and under Section 20 of the same
Republic Act, respondent Verra cannot rely on the absence of an attestation from the
provincial treasurer and a certification from the Civil Service Commissioner insofar as
Lajer's appointment is concerned because by the fact of Verra's appointment, these
requirements could no longer be fulfilled. Mayor Octavio Traya took the appointments
away from the office of the Provincial Treasurer before they could be acted upon. The
Commissioner could no longer act within 180 days.

3. ID.; ID.; ID.; CONTESTED APPOINTMENTS; DECISION OF THE COURT OF

APPEALS SUPERSEDES ANY DECISION OF THE COURT OF FIRST INSTANCE
OR THE CIVIL SERVICE COMMISSIONER ON THE SAME ISSUE AND FACTS.
The decision of the Court of Appeals superseded any decision that the Court of First
Instance or the Civil Service Commissioner could have rendered on the same issue and
the same facts. The certification by the Commissioner of Civil Service that Mr. Verra
possessed the qualifications and the eligibility, doubtful though the latter may be, for the
position of chief of police could not have made the proceedings in court moot and
academic much less rendered inutile the 1966 decision of the Court of Appeals granting
the petition for a writ of mandamus in Lajer's favor.
4. ID.; ID.; ID.; ID.; NATURE OF POSITION OF APPOINTEE WHILE ACTION FOR
REINSTATEMENT OF PREDECESSOR IS BEING LITIGATED. At most private
respondent was a de facto officer during the years when petitioner was litigating his
action for reinstatement in the Court of First Instance and in the Court of Appeals.
5. ID.; ID.; ID.; ID; EQUITIES BASED ON QUALIFICATIONS; CASE AT BAR.
While there is no point in resolving the issue as to who has better qualifications and more
nearly appropriate eligibility for the position of chief of police a police sergeant with
ten years experience and patrolman's eligibility or a school teacher with a senior teacher's
eligibility, the equities of the case do not lean towards respondent Verra. Estanislao Lajer
had been a member of the Abuyog police force since January 1, 1949. He had passed the
patrolman's examination, was promoted to corporal, later to sergeant, and finally to chief
of police in his tenth year of service. On the other hand, Higinio Verra was a school
teacher with apparently no police experience whatsoever when he was appointed chief of
police on January 14, 1960.
6. ID.; ID.; ID.; ID.; DECISION OF THE COURT BINDS ANY OTHER APPOINTEE
IN FAVOR OF OFFICER ADJUDGED ENTITLED TO IT. Where the issue before
the Court of First Instance and the Court of Appeals was whether or not the Mayor,
Municipal Council, Municipal Treasurer, and the Municipality of Abuyog, Leyte illegally
terminated the chief of police, sergeant of police, and six other members of the police
from their respective offices and whether or not mandamus may issue to compel their
reinstatement mandamus having issued, any person whether Mr. Higinio Verra who was
not a party to the case or any other appointee to the contested position must give up the
office in favor of the officer adjudged by the courts to be entitled to it.

DECISION

GUTIERREZ, JR., J :
p

In this petition for review, the petitioners seek the annulment or reversal of the decision
of the Court of First Instance of Leyte in Civil Case No. 3606, entitled Higinio Verra v.
Marcial Costin, et al. In that case for a writ of quo warranto with mandamus, the
respondent court declared Verra entitled to reinstatement with payment of salaries for the
whole period from his illegal separation from the service to the date of his reinstatement.
cdphil

Petitioner Estanislao Lajer was a member of the municipal police force of Abuyog, Leyte
since January 1, 1949. He was extended a promotional appointment as sergeant of police
on October 15, 1958. On November 25, 1959, the outgoing municipal mayor of Abuyog
accorded Lajer another promotional appointment as chief of police. This last appointment
was not attested and approved as required by law.
On January 14, 1960, the new municipal mayor dismissed Lajer and eight other members
of the police department. On the same day, the municipal mayor extended to respondent
Higinio Verra a permanent appointment as Chief of Police of Abuyog with a salary of
P2,280.00 per annum. Verra immediately took over the position. His appointment was
eventually approved as permanent under Section 24 (b) of Republic Act 2260 by the
Commissioner of Civil Service.
On January 19, 1960, Lajer and the eight members of the police force filed an action for
mandamus (Civil Case No. 2713) against the municipal mayor, municipal treasurer and
the municipal council of Abuyog, contesting their separation from the service.
While this petition for mandamus was pending, there was again a change in the municipal
administration of Abuyog, Leyte as a result of the 1963 local elections. The newly elected
municipal mayor dismissed respondent Verra from office on January 16, 1964. Verra was
replaced by Victoriano Silleza, officer-in-charge, on January 17, 1964 until October,
1964 when petitioner Marcial Costin was appointed chief of police.
cdll

On December 29, 1964, respondent Verra filed Civil Case No. 3606 for quo warranto
with mandamus against Marcial Costin, the municipal mayor, and the municipal
treasurer, questioning the legality of his separation alleging that he could not be
dismissed as chief of police because he was a civil service eligible and in possession of
an appointment to the position of chief of police of Abuyog, Leyte duly attested
"Permanent" by the Civil Service Commission.
On January 22, 1966, the mandamus suit (Civil Case No. 2713) filed by Lajer and his
companions, which had been appealed was decided by the Court of Appeals (CA-G.R.
No. 29313-R). The appellate court found that Lajer, Tomines, and Jervoso "were illegally
removed from office and are, therefore, entitled to reinstatement to their respective
positions with payment of the salaries they failed to receive."

As a result of the appellate decision, petitioner (then mayor) Tisado reinstated Lajer as
chief of police on April 1, 1966.
On July 24, 1966, respondent Verra amended his petition in Civil Case No. 3606,
impleading Lajer as additional respondent therein.
On November 7, 1968, respondent Verra filed a second amended petition including as
respondents the following: Octavio Traya, who succeeded Tisado as mayor; Lionel
Kanen who succeeded Lajer as chief of police (Lajer retired from the service on February
1, 1968); Domingo Ipong who succeeded Cuyno (deceased) as municipal treasurer; and
the Municipal Council of Abuyog, which appropriates funds for the office in question.
On December 2, 1969, respondent judge rendered his decision in Civil Case No. 3606,
declaring that Verra is entitled to reinstatement with salary to be paid to him for the
whole period of his illegal separation to the date of his reinstatement. The court also
ordered the municipal mayor to reinstate Verra immediately and the municipal treasurer
to pay his salary. This decision is now before us for review.
Hence, the present petition with the following assignments of errors:
"I. THAT THE HONORABLE COURT A QUO ERRED IN DECLARING
THAT THE COURT OF APPEALS IN ITS DECISION ON CIVIL CASE C.A.
G.R. NO. 29313-R (Civil Case No. 2713), CFI, LEYTE) ORDERED THE
REINSTATEMENT OF PETITIONER ESTANISLAO LAJER TO THE
POSITION OF SERGEANT OF POLICE OF ABUYOG, LEYTE AND NOT
TO THE POSITION OF CHIEF OF POLICE;
"II. THAT THE HONORABLE COURT A QUO ERRED IN NOT
DECLARING THAT THERE WAS NO VACANCY IN THE OFFICE OF
CHIEF OF POLICE OF ABUYOG, LEYTE TO WHICH RESPONDENT
HIGINIO VERRA COULD HAVE BEEN VALIDLY AND EFFECTIVELY
APPOINTED;
"III. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING
THAT THE ISSUE INVOLVED IN THIS CASE IS THE LEGALITY OF
RESPONDENT HIGINIO VERRA'S REMOVAL FROM THE SERVICE AS
CHIEF OF POLICE AND NOT THE VALIDITY OF HIS APPOINTMENT
THERETO;
"IV. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING
THAT THE SEPARATION OF RESPONDENT HIGINIO VERRA FROM
THE OFFICE OF THE CHIEF OF POLICE WAS ILLEGAL;
"V. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING
THAT THE RESPONDENT HIGINIO VERRA, NOT BEING A PARTY IN

CIVIL CASE NO. 2713 (CFI, LEYTE) FOR MANDAMUS, IS NOT BOUND
BY ITS DECISION THEREON;

"VI. THAT, FINALLY, THE HONORABLE COURT A QUO ERRED IN

ORDERING THE REINSTATEMENT OF OFTMENTIONED HIGINIO
VERRA TO THE POSITION OF CHIEF OF POLICE."

The foregoing assignments of errors may be narrowed down to the following issues:

LLjur

1. Whether or not the appointment of respondent Higinio Verra to the position

of Chief of Police of Abuyog, Leyte, was valid and consequently his removal
therefrom illegal.
2. Whether the Court of Appeals in its decision in C.A.-G.R. No. 29313-R
(Civil Case No. 2713-CFI, Leyte) ordered the reinstatement of petitioner Lajer
to the position of Sergeant of Police or Chief of Police.
3. Whether or not respondent Verra is bound by the decision of the lower court
in Case No. 2713-CFI, Leyte, for mandamus, not being a party to it.

With respect to the first issue, the petitioners argue that the appointment issued in favor
of respondent Verra as chief of police on January 14, 1960, was invalid and ineffective
because the said position was not vacant from the time Lajer was illegally separated on
January 14, 1960, up to the time he was actually reinstated. This is, according to the
petitioners, premised on the fact that the Court of Appeals in deciding Civil Case No.
2713, CFI-Leyte, ordered Lajer's reinstatement which also legalized the dismissal of
respondent Verra.
Respondent Verra, on the other hand, contends that the office in question was legally
vacant when he was appointed thereto because Lajer's appointment was never attested as
required by law or incomplete, and, therefore, never became effective. It is further
contended that Lajer's appointment as chief of police was temporary in character and
terminable at the pleasure of the appointing authority and when Lajer was separated from
the office of chief of police, the position became legally and physically vacant. Verra also
claims that since he is a civil service eligible and his appointment as chief of police was
attested as permanent under Section 20 of Republic Act 2260 and served as such for four
(4) years and two (2) days when he was dismissed without cause, his dismissal is illegal.
We find the petition meritorious.
When respondent Verra was appointed chief of police on January 14, 1960, Lajer had just
been dismissed from office with several other members of the police force. The validity
of Verra's appointment, therefore, hinges on the legality of Lajer's removal. It is

elementary in the law of public officers that no person, no matter how qualified and
eligible he is for a certain position may be appointed to an office which is not vacant.
There can be no appointment to a non-vacant position. The incumbent must first be
legally removed or his appointment validly terminated.
The lower court's error lies in its looking at the issues primarily from the viewpoint of
Verra's removal, his qualifications and eligibility for the position, and whether or not his
dismissal was valid. In the process, the lower court overlooked the fact that Verra could
not have been permanently appointed to the contested position because no less than the
Court of Appeals had declared that his predecessor, Estanislao Lajer was illegally
terminated from office and must be reinstated to his former position.
Respondent Verra argues that Lajer's appointment as chief of police was temporary and
terminable at the pleasure of the appointing power.
The private respondent is correct in asserting that when the promotional appointment of
Lajer was made in 1959, it could not be considered final or complete. Under Section 2(a)
of Rule VI, the Civil Service Rules implementing Section 16(g) of Republic Act 2260, an
appointment extended by an officer duly empowered to make it is not final and complete
until after the Commissioner of Civil Service has certified that such an appointment may
be made. (Gorospe v. Secretary of Public Works and Communications et al., 105 Phil.
129)
prcd

It is likewise true that under Section 20 of Republic Act 2260 which, in part, provides:
"'SEC. 20. Delegation in the Civil Service Commission and to the Agencies. .
. . Appointments by . . . municipal mayors shall become effective upon issuance
of such appointments and upon attestation by the provincial treasurer in the case
of appointments made by . . . municipal mayors . . . All appointments made by
the . . . municipal mayors . . . shall, after being attested to by the respective
provincial treasurer . . . be forwarded within ten days to the Commissioner of
Civil Service for review pursuant to Civil Service law and rules. If within one
hundred eighty days after receipt of said appointments, the Commissioner of
Civil Service shall not have made any correction or revision, then such
appointments shall be deemed to have been properly made. . . .' "

the attestation by the provincial treasurer of Leyte was necessary to make the
appointment of petitioner Lajer effective. * However, these requirements could not be
complied with because Lajer, who had been appointed on November 25, 1959 was
replaced on January 14, 1960 by the new mayor of the municipality who appointed
Verra in his stead. As pointed out in Dichoso v. Valdepenas (5 SCRA 1069, 1075),
the incoming mayor should have awaited the action of the provincial treasurer and
later, the Commissioner of Civil Service, before appointing his own protege to a
position with an incumbent occupying it. Respondent Verra cannot rely on the

absence of an attestation from the provincial treasurer and a certification from the
Civil Service Commissioner insofar as Lajer's appointment is concerned because by
the fact of Verra's appointment, these requirements could no longer be fulfilled.
Mayor Octavio Traya took the appointments away from the office of the Provincial
Treasurer before they could be acted upon. The Commissioner could no longer act
within 180 days.
prcd

The insuperable factor, however, which stands in the way of Verra's reinstatement with
backwages for eighteen (18) years from 1964 to the present is the Court of Appeals
decision in Lajer et al. v. Traya et al. (CA-G.R. No. 29313-R, January 22, 1966). The
Court of Appeals was presented squarely with the issue of whether or not Estanislao
Lajer and seven other petitioners were illegally separated from the service by Mayor
Octavio Traya. In a decision penned by Justice Salvador V. Esguerra, concurred in by
Presiding Justice Conrado V. Sanchez and Justice Magno S. Gatmaitan, the First Division
of the Court of Appeals ruled that Estanislao Lajer, Mariano Tomines, and Melecio
Jervoso were illegally removed from office and must be reinstated.
Respondent's Verra now contends that Lajer was ordered reinstated to the position of
sergeant and not chief of police. Mr. Verra cannot read into a Court of Appeals decision
something which is not there.
Mr. Lajer did not go to court to contest the position of police sergeant or to question his
removal as police sergeant. He was never removed from a position as sergeant of police.
Lajer filed a petition for mandamus to be reinstated as chief of police. The January 30,
1961 decision of Judge S. C. Moscoso of the Court of First Instance of Leyte discusses an
appointment as chief of police. When the decision ordering Lajer's reinstatement was
appealed to the Court of Appeals, the appellate court specifically described petitioner
Lajer as chief of police and petitioner Mariano Tomines, as police sergeant. When Lajer
and Tomines were ordered reinstated, it was to the said positions as chief of police and
police sergeant respectively.
The argument of respondent Verra that Mayor Tisado should have refrained from
reinstating Lajer as chief of police notwithstanding the decision of the Court of Appeals
because he, Verra, had filed a case with the Court of First Instance contesting the same
position betrays a lack of understanding of a final and executory decision of an appellate
tribunal. The decision of the Court of Appeals superseded any decision that the Court of
First Instance or the Civil Service Commissioner could have rendered on the same issue
and the same facts. It was precisely the termination of Lajer's promotional appointment as
chief of police which the appellate court struck down. Since Lajer was not validly
terminated from public office and, as a matter of fact, was ordered reinstated through a
writ of mandamus, it follows that there was no vacancy in the office of chief of police on
January 14, 1960 and there was no office to which Higinio Verra could have been
appointed. The discussions in the decision of the respondent judge on whether or not

Higinio Verra was validly removed from office are all beside the point. Never having
been validly appointed, there was no office from which he was illegally dismissed. At
most, he was a de facto officer during the years when Lajer was litigating his action for
reinstatement in the court of first instance and in the court of appeals. And as earlier
stated, the certification by the Commissioner of Civil Service that Mr. Verra possessed
the qualifications and the eligibility, doubtful though the latter may be, for the position of
chief of police could not have made the proceedings, in court moot and academic much
less rendered inutile the 1966 decision of the Court of Appeals granting the petition for a
writ of mandamus in Lajer's favor.
prLL

Moreover, the equities of the case do not lean towards respondent Verra. Estanislao Lajer
had been a member of the Abuyog police force since January 1, 1949. He had passed the
patrolman's examination, was promoted to corporal, later to sergeant, and finally to chief
of police in his tenth year of service. On the other hand, Higinio Verra was a school
teacher with apparently no police experience whatsoever when he was appointed chief of
police on January 14, 1960. It is too late in the day now to debate the correctness of the
Court of Appeals decision that non-attestation was not sufficient cause for outright
removal. The decision has long been final and was implemented in 1966. There is
similarly no point in resolving the issue as to who has better qualifications and more
nearly appropriate eligibility for the position of chief of police - a police sergeant with ten
years experience and patrolman's eligibility or a school teacher with a senior teacher's
eligibility.

Verra asks if he should be bound by the decision of the Court of Appeals, not having
been a party to the case. The issue before the Court of First Instance and the Court of
Appeals was whether or not the Mayor, Municipal council, Municipal Treasurer and the
Municipality of Abuyog, Leyte illegally terminated the chief of police, sergeant of police,
and six other members of the police force from their respective offices and whether or not
mandamus may issue to compel their reinstatement. Mandamus having issued, any
person whether Mr. Higinio Verra or any other appointee to the contested position must
give up the office in favor of the officer adjudged by the courts to be entitled to it.
cdll

WHEREFORE, the instant petition is hereby granted. The decision of the respondent
court in Civil Case No. 3606 is reversed and set aside and the petition for quo warranto
with mandamus filed in the court a quo is ordered dismissed.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.
|||

(Costin v. Quimbo, G.R. No. L-32271, January 27, 1983)

EN BANC
[G.R. No. 78239. February 9, 1989.]
SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S.
FACTORAN, JR., respondent.
SYLLABUS
1. REMEDIAL LAW; ACCESSORY PENALTY; REMAINS ENFORCEABLE
UNLESS EXPRESSLY REMITTED BY PARDON. 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. Temporary absolute disqualification
bars the convict from public office or employment, such disqualification to last during the
term of the sentence. 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.
The penalty of prision correccional carries, as one of its accessory penalties, suspension
from public office.
2. CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY; PARDON
EXPLAINED. 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."
3. ID.; ID.; ID.; COULD BE EXTENDED ONLY UPON FINAL CONVICTION.
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.

4. ID.; ID.; ID.; ACCEPTANCE THEREOF HAS THE EFFECT OF ABANDONING

THE APPEAL; CASE AT BAR. 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.
5. ID.; ID.; ID.; ESSENCE. The modern trend of authorities now rejects the unduly
broad language of the Garland case [4 Wall, 333 18 L.ED. 366] (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. 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. 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." A pardon looks to the future. It is
not retrospective. It makes no amends for the past. It affords no relief for what has been
suffered by the offender. It does not impose upon the government any obligation to make
reparation for what has been suffered. "Since the offense has been established by judicial
proceedings, that which has been done or suffered while they were in force is presumed
to have been rightfully done and justly suffered, and no satisfaction for it can be
required." This would explain why petitioner, though pardoned, cannot be entitled to
receive backpay for lost earnings and benefits.
6. ID.; ID.; ID.; EFFECTS. In this ponencia, the Court wishes to stress one vital point:
While we are prepared to concede that pardon may remit all the penal consequences of a
criminal indictment if only to give meaning to the fiat that a pardon, being a presidential
prerogative, should not be circumscribed by legislative action, we do not subscribe to the
fictitious belief that pardon blots out the guilt of an individual and that once he is
absolved, he should be treated as if he were innocent For whatever may have been the
judicial dicta in the past, we cannot perceive how pardon can produce such "moral
changes" as to equate a pardoned convict in character and conduct with one who has
constantly maintained the mark of a good, law-abiding citizen. Pardon cannot mask the
acts constituting the crime. These are "historical" facts which, despite the public

manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will
take into account in their subsequent dealings with the actor." 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.
This must be constantly kept in mind lest we lose track of the true character and purpose
of the privilege.
7. ID.; ID.; ID.; DOES NOT IPSO FACTO RESTORE RIGHT OF CONVICT TO
HOLD PUBLIC OFFICE. 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 although such pardon undoubtedly restores his
eligibility for appointment to that office. 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.
8. ID.; CIVIL LIABILITY ARISING FROM FELONY; HOW EXTINGUISHED.
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.

DECISION

FERNAN, C.J :
p

The principal question raised in this petition for review is whether or not a public officer,
who has been granted an absolute pardon by the Chief Executive, is entitled to
reinstatement to her former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner
Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other

accused, of the complex crime of estafa thru falsification of public documents and
sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of
prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as
maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally
indemnify the government in the sum of P4,892.50 representing the balance of the
amount defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed
the same. She then filed a motion for reconsideration but while said motion was pending,
she was extended on December 17, 1984 by then President Marcos absolute pardon
which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she
be restored to her former post as assistant city treasurer since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of
the provision of the Local Government Code transferring the power of appointment of
treasurers from the city governments to the said Ministry. In its 4th Indorsement dated
March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her
position without the necessity of a new appointment not earlier than the date she was
extended the absolute pardon. It also directed the city treasurer to see to it that the amount
of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the
government as well as the costs of the litigation, be satisfied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April
17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which
implies that her service in the government has never been interrupted and therefore the
date of her reinstatement should correspond to the date of her preventive suspension
which is August 1, 1982; that she is entitled to backpay for the entire period of her
suspension; and that she should not be required to pay the proportionate share of the
amount of P4,892.50. 2

The Ministry of Finance, however, referred petitioner's letter to the Office of the
President for further review and action. On April 15, 1986, said Office, through Deputy
Executive Secretary Fulgencio S. Factoran, Jr. held:
"We disagree with both the Ministry of Finance and the petitioner because, as
borne out by the records, petitioner was convicted of the crime for which she
was accused. In line with the government's crusade to restore absolute honesty
in public service, this Office adopts, as a juridical guide (Miranda v. Imperial,
77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v.
Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute

pardon, of a former public officer is the only ground for reinstatement to his
former position and entitlement to payment of his salaries, benefits and
emoluments due to him during the period of his suspension pendente lite.
"In fact, in such a situation, the former public official must secure a
reappointment before he can reassume his former position.
"Anent the civil liability of Monsanto, the Revised Penal Code expressly
provides that `a pardon shall in no case exempt the culprit from payment of the
civil indemnity imposed upon him by the sentence.' (Sec. 36, par. 2).
"IN VIEW OF THE FOREGOING, this Office holds that Salvacion A.
Monsanto is not entitled to an automatic reinstatement on the basis of the
absolute pardon granted her but must secure an appointment to her former
position and that, notwithstanding said absolute pardon, she is liable for the civil
liability concomitant to her previous conviction." 3

Her subsequent motion for reconsideration having been denied, petitioner filed the
present petition in her behalf. We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case by
reason of the fact that she was extended executive clemency while her conviction was
still pending appeal in this Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to have been terminated
or forfeited. In other words, without that final judgment of conviction, the accessory
penalty of forfeiture of office did not attach and the status of her employment remained
"suspended." More importantly, when pardon was issued before the final verdict of guilt,
it was an acquittal because there was no offense to speak of. In effect, the President has
declared her not guilty of the crime charged and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the complex crime of estafa
thru falsification of public documents and sentenced to imprisonment of four years, two
months and one day of prision correccional as minimum, to ten years and one day of
prision mayor as maximum. The penalty of prision mayor carries the accessory penalties
of temporary absolute disqualification and perpetual special disqualification from the
right of suffrage, enforceable during the term of the principal penalty. 5 Temporary
absolute disqualification bars the convict from public office or employment, such
disqualification to last during the term of the sentence. 6 Even if the offender be
pardoned, as to the principal penalty, the accessory penalties remain unless the same have
been expressly remitted by the pardon. 7 The penalty of prision correccional carries, as
one of its accessory penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate understanding of
the nature of pardon and its legal consequences. This is not totally unexpected

considering that the authorities on the subject have not been wholly consistent
particularly in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity of the
Kings wrath. But Philippine jurisprudence on the subject has been largely influenced by
American case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed. It is the private, though official
act of the executive magistrate, delivered to the individual for whose benefit it is
intended, and not communicated officially to the Court. . . . A pardon is a deed, to the
validity of which delivery is essential, and delivery is not complete without acceptance.
8a
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 pardon, remit fines and forfeitures, and with the concurrence
of the Batasang Pambansa, grant amnesty." 9

The 1981 amendments had deleted the earlier rule that clemency could be extended only
upon final conviction, implying that clemency could be given even before conviction.
Thus, petitioner's unconditional pardon was granted even as her appeal was pending in
the High Court. It is worth mentioning that under the 1987 Constitution, the former
limitation of final conviction was restored. But be that as it may, it is our view that in the
present case, it is not material when the pardon was bestowed, whether before or after
conviction, for the result would still be the same. Having accepted the pardon, petitioner
is deemed to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full and
absolute pardon in relation to the decisive question of whether or not the plenary pardon
had the effect of removing the disqualifications prescribed by the Revised Penal Code.
cdll

In Pelobello v. Palatino, 10 we find a reiteration of the stand consistently adopted by the

courts on the various consequences of pardon: ". . . we adopt the broad view expressed in
Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations
imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action; that an absolute pardon not only blots out the crime committed but
removes all disabilities resulting from the conviction. . . . (W)e are of the opinion that the

better view in the light of the constitutional grant in this jurisdiction is not to
unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry
into the environmental facts, should be at liberty to atone the rigidity of the law to the
extent of relieving completely the party . . . concerned from the accessory and resultant
disabilities of criminal conviction."
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12
show the unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose
sweeping generalizations to this day continue to hold sway in our jurisprudence despite
the fact that much of its relevance has been downplayed by later American decisions.
Consider the following broad statements:
"A pardon reaches both the punishment prescribed for the offense and the guilt
of the offender; and when the pardon is full, it releases the punishment and blots
out of existence the guilt, so that in the eye of the law the offender If as innocent
as if he had never committed the offense. If granted before conviction, it
prevents any of the penalties and disabilities, consequent upon conviction, from
attaching, if granted after conviction, it removes the penalties and disabilities
and restores him to all his civil rights; it makes him, as it were, a new man, and
gives him a new credit and capacity." 14

Such generalities have not been universally accepted, recognized or approved. 15 The
modern trend of authorities now rejects the unduly broad language of the Garland case
(reputed to be perhaps the most extreme statement which has been made on the effects of
a pardon). To our mind, this is the more realistic approach. While a pardon has generally
been regarded as blotting out the existence of guilt so that in the eye of the law the
offender is as innocent as though he never Committed the offense, it does not operate for
all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon
implies guilt. It does not erase the fact of the commission of the crime and the conviction
thereof. It does not wash out the moral stain. It involves forgiveness and not
forgetfulness. 16
The better considered cases regard full pardon (at least one not based on the offender's
innocence) as relieving the party from all the punitive consequences of his criminal act,
including the disqualifications or disabilities based on the finding of guilt. 17 But it
relieves him from nothing more. "To say, however, that the offender is a `new man', and
`as innocent as if he had never committed the offense;' is to ignore the difference between
the crime and the criminal. A person adjudged guilty of an offense is a convicted
criminal, though pardoned; he may be deserving of punishment, though left unpunished;
and the law may regard him as more dangerous to society than one never found guilty of
crime, though it places no restraints upon him following his conviction." 18

A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It
affords no relief for what has been suffered by the offender. It does not impose upon the
government any obligation to make reparation for what has been suffered. "Since the
offense has been established by judicial proceedings, that which has been done or
suffered while they were in force is presumed to have been rightfully done and justly
suffered, and no satisfaction for it can be required." 20 This would explain why
petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and
benefits.

Petitioner maintains that when she was issued absolute pardon, the Chief Executive
declared her not guilty of the crime for which she was convicted. In the case of State v.
Hazzard, 21 we find this strong observation: "To assume that all or even a major number
of pardons are issued because of innocence of the recipients is not only to indict our
judicial system, but requires us to assume that which we all know to be untrue. The very
act of forgiveness implies the commission of wrong, and that wrong has been established
by the most complete method known to modern civilization. Pardons may relieve from
the disability of fines and forfeitures attendant upon a conviction, but they cannot erase
the stain of bad character, which has been definitely fixed." 22
In this ponencia, the Court wishes to stress one vital point: While we are prepared to
concede that pardon may remit all the penal consequences of a criminal indictment if
only to give meaning to the fiat that a pardon, being a presidential prerogative, should not
be circumscribed by legislative action, we do not subscribe to the fictitious belief that
pardon blots out the guilt of an individual and that once he is absolved, he should be
treated as if he were innocent For whatever may have been the judicial dicta in the past,
we cannot perceive how pardon can produce such "moral changes" as to equate a
pardoned convict in character and conduct with one who has constantly maintained the
mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts which,
despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary,
prudent men will take into account in their subsequent dealings with the actor." 23
Pardon granted after conviction frees the individual from all the penalties and legal
disabilities and restores him to all his civil rights. But unless expressly grounded on the
person's innocence (which is rare), it cannot bring back lost reputation for honesty,
integrity and fair dealing. 24 This must be constantly kept in mind lest we lose track of
the true character and purpose of the privilege.
Cdpr

Thus, notwithstanding the expansive and effusive language of the Garland case, we are
in full agreement with the commonly-held opinion that pardon does not ipso facto restore

a convicted felon to public office necessarily relinquished or forfeited by reason of the

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

Separate Opinions
PADILLA, J ., concurring:
I concur in the result but on grounds different from those relied upon by the majority
opinion.
Petitioner Salvacion A. Monsanto was Assistant Treasurer of Calbayog City. Together
with three (3) other accused, she was charged before the Sandiganbayan with the
complex crime of Estafa through falsification of public documents. After trial, the
accused were convicted and sentenced 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 correccional, as maximum, and to pay a fine of P3,500.00. They were also
ordered to jointly and severally indemnify the government in the sum of P4,892.50
representing the balance of the amount defrauded and to pay the costs proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the same.
Petitioner then filed a motion for reconsideration but while said motion was pending,
President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon
which she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City Treasurer
of Calbayog, the Ministry of Finance and the Office of the President, asked that she be
allowed to re-assume her former office, as of 1 August 1982 (the date of her preventive
suspension), that she be paid her back salaries for the entire period of her suspension, and
that she be not required to pay her proportionate share of the amount of P4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for automatic
reinstatement as well as her other claims, because of which denial, this petition for review
on certiorari was filed before the Court seeking the setting aside and reversal of the
decision of the respondent Assistant Executive Secretary, on the main contention that, as
a public officer who has been granted an absolute pardon by the President, she is entitled
to reinstatement to her former position without need of a new appointment, and to the
other reliefs prayed for.
cdrep

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the
same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon
on the pardoned's right to hold office, suffrage and on his civil liability. It states:
"ART. 36. Pardon; its effects. A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.

"A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence." (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that
the pardon extended by the President to the petitioner did not per se entitle her to again
hold public office (including therefore the office of Assistant Treasurer, Calbayog City)
or to suffrage; nor did such pardon extinguish her civil liability for the criminal
conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while petitioner was
granted "an absolute and unconditional pardon and restored to full civil and political
rights", yet, nothing therein expressly provides that the right to hold public office was
thereby restored to the petitioner. In view of the express exclusion by Art. 36, R.P.C., of
the right to hold public office, notwithstanding a pardon unless the right is expressly
restored by the pardon, it is my considered opinion that, to the extent that the pardon
granted to the petitioner did not expressly restore the right to hold public office as an
effect of such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law hopefully to be honored more in its
compliance rather than in its breach that a "public office is a public trust." The
restoration of the right to hold public office to one who has lost such right by reason of
conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no
matter how intensely arguable, but must be stated in express, explicit, positive and
specific language. To require this would not be asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and
Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute
pardon without qualification, restores full civil rights which have been construed, in turn,
to include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).
If such be the message of said cases, them I submit that a modification is in order, so that
an absolute pardon to work a restoration of the right to hold public office must expressly
so state, in order to give substance and meaning to the sound provisions of Article 36 of
the Revised Penal Code, particularly in the light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera and Sarmiento, JJ ., concur.
FELICIANO, J ., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I
also join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I
would add a few brief statements, basically for my own clarification. Article 36 of the
Revised Penal Code states:
"Article 36. Pardon; its effects A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence." (Italic supplied).

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by
the Revised Penal Code in its following provisions:
"Article 40. Death Its accessory penalties. The death penalty, when it is
not executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty
years following the date of sentence, unless such accessory penalties have been
expressly remitted in the pardon."
"Article 41. Reclusion perpetua and reclusion temporal. Their accessory
penalties. The penalties of reclusion perpetua and reclusion temporal shall
carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon."
"Article 42. Prision mayor Its accessory penalties. The penalty of prision
mayor shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon."
"Article 43. Prision correccional Its accessory penalties. The penalty of
prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment
shall exceed eighteen months. The offender shall suffer the disqualification
provided in this article although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon." (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex
crime of estafa through falsification of public documents, included the accessory
penalties of temporary absolute disqualification from public office or employment and
perpetual special disqualification from the right of suffrage. The 17 December 1984

pardon extended to petitioner in the instant case was written on a standard printed form
which states in printed words that it was "an absolute and unconditional pardon [which]
restored [petitioner] to full civil and political rights." 1 While the right of suffrage and the
right to hold public office or employment are commonly regarded as "political rights," 2
it must be noted that there are other political rights 3 and that the pardon given to
petitioner did not expressly and in printer's ink restore to petitioner the particular right to
hold public office and the specific right to vote at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a public office
as a public trust, Articles 36 and 40-43 appropriately require a very high degree of
explicitness if a pardon is to work the restoration of such right to petitioner. Exactly the
same point may, of course, be made in respect of the restoration of the right to vote.
prLL

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute
books since 1930. I believe that they have been left intact by the constitutional provisions
on pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987
Constitutions. I do not believe that Articles 36, et al. collided with any provision or
principle embodied in either of our prior constitutions. The Chief Justice appears to agree
with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p.
5). He goes on, however, to say (in page 13) that: "the pardon granted to petitioner has
resulted in removing her disqualification from holding public employment but it cannot
go beyond that."
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not
been shown to be an unconstitutional restriction on the pardoning power of the President.
The limitation on the President's pardoning power, if limitation it be, does not appear to
be an unreasonably onerous one. Articles 36, et al. merely require the President to
become completely explicit if the pardon he extends is intended to wipe out not merely
the principal but also the accessory penalty of disqualification from holding public office
and from voting and to restore the recipient of the pardon to the exercise of such
fundamental political rights. Such requirement of explicitness seems entirely in line with
the fundamental point made by the Chief Justice that a pardon does not blot out the
factual guilt of the recipient of the pardon. In other words, the mere grant of a pardon to a
public officer or employee who has been unfaithful to the public trust and sentenced to
disqualification from voting and from holding such of office, does not create the
presumption that the recipient of the pardon has thereby suddenly become morally
eligible once more to exercise the right to vote and to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her the right to
hold public office and on this ground, I vote to DENY the Petition for Review and to
AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran,
Jr.

Melencio-Herrera, Gutierrez, Cruz and Sarmiento, JJ ., concurs.

|||

(Monsanto v. Factoran, Jr., G.R. No. 78239, February 09, 1989)

EN BANC
[G.R. No. 83896. February 22, 1991.]
CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE
SECRETARY, respondent.
[G.R. No. 83815. February 22, 1991.]
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and
CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as
Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as
Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of
Education, Culture and Sports; FULGENCIO FACTORAN, JR., as
Secretary of Environment and Natural Resources; VICENTE V.
JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as
Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor
and Employment; LUIS SANTOS, as Secretary of Local
Government; FIDEL V. RAMOS, as Secretary of National Defense;
TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER,
as Secretary of Public Works and Highways; ANTONIO
ARRIZABAL, as Secretary of Science and Technology; JOSE
CONCEPCION, as Secretary of Trade and Industry; JOSE
ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as
Secretary of Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and SOLITA
MONSOD, as Head of the National Economic Development
Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T . David for
petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
DECISION
FERNAN, C.J :
p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1 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. The pertinent
provisions of the assailed Executive Order are:

"SECTION 1. Even if allowed by law or by the ordinary functions of his

position, a member of the Cabinet, 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; Provided,
that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.
"SECTION 2. If a member of the cabinet, undersecretary or assistant secretary
or other appointive official of the Executive Department holds more positions
than what is allowed in Section 1 hereof, they (sic) 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. In order to fully protect the interest of the government in
government-owned or controlled corporations, at least one-third (1/3) of the
members of the boards of such corporation should either be a secretary, or
undersecretary, or assistant secretary."

Petitioners maintain that this Executive Order which, in effect, allows members of the
Cabinet, their undersecretaries and assistant secretaries to hold other government offices
or positions in addition to their primary positions, albeit subject to the limitation therein
imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which
provides as follows:
"Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in
any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in
the conduct of their office."

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as
members of the Cabinet, along with the other public officials enumerated in the list
attached to the petitions as Annex "C" in G.R. No. 83815 3 and as Annex "B" in G.R. No.
83896 4 from holding any other office or employment during their tenure. In addition to
seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner
Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a temporary restraining
order directing public respondents therein to cease and desist from holding, in addition to
their primary positions, dual or multiple positions other than those authorized by the 1987
Constitution and from receiving any salaries, allowances, per diems and other forms of

privileges and the like appurtenant to their questioned positions, and compelling public
respondents to return, reimburse or refund any and all amounts or benefits that they may
have received from such positions.
prcd

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding

the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then
Secretary of Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of
1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant
secretaries may hold other public office, including membership in the boards of
government corporations: (a) when directly provided for in the Constitution as in the case
of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar
Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if
allowed by the primary functions of their respective positions; and that on the basis of
this Opinion, the President of the Philippines, on July 25, 1987, or two (2) days before
Congress convened on July 27, 1987, promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and
Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and
the general provision in another article, Section 7, par. (2), Article IX-B. This "strained
linkage" between the two provisions, each addressed to a distinct and separate group of
public officers one, the President and her official family, and the other, public servants
in general allegedly "abolished the clearly separate, higher, exclusive, and mandatory
constitutional rank assigned to the prohibition against multiple jobs for the President, the
Vice-President, the members of the Cabinet, and their deputies and subalterns, who are
the leaders of government expected to lead by example." 7 Article IX-B, Section 7, par.
(2) 8 provides:
"Sec. 7. . . .
"Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the government
or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries."

The Solicitor General counters that Department of Justice (DOJ) Opinion No. 73, series
of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and
DOJ Opinion No. 155, series of 1988, 10 being the first official construction and
interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section
7, Article IX-B of the Constitution, involving the same subject of appointments or
designations of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive Order No.
284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently
constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ

Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not
applying to ex-officio positions or to positions which, although not so designated as exofficio are allowed by the primary functions of the public official, but only to the holding
of multiple positions which are not related to or necessarily included in the position of the
public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by
petitioners on the principal submission that it adds exceptions to Section 13, Article VII
other than those provided in the Constitution. According to petitioners, by virtue of the
phrase "unless otherwise provided in this Constitution," 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), Article VII thereof; and (2) the Secretary of Justice is
an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2),
Article IX-B on the Civil Service Commission applies to officers and employees of the
Civil Service in general and that said exceptions do not apply and cannot be extended to
Section 13, Article VII which applies specifically to the President, Vice-President,
Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the
members of the Cabinet and their deputies or assistants from holding dual or multiple
positions in the Government admits of certain exceptions. The disagreement between
petitioners and public respondents lies on the constitutional basis of the exception.
Petitioners insist that because of the phrase "unless otherwise provided in this
Constitution" used in Section 13 of Article VII, the exception must be expressly provided
in the Constitution, as in the case of the Vice-President being allowed to become a
Member of the Cabinet under the second paragraph of Section 3, Article VII or the
Secretary of Justice being designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain
that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII
makes reference to Section 7, par. (2), Article IX-B insofar as the appointive officials
mentioned therein are concerned.
prLL

The threshold question therefore is: does the prohibition in Section 13, Article VII of the
1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned
admit of the broad exceptions made for appointive officials in general under Section 7,
par. (2), Article IX-B which, for easy reference is quoted anew, thus: "Unless otherwise
allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any subdivision, agency or

instrumentality thereof, including government-owned or controlled corporation or their

subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by former
President Ferdinand E. Marcos pursuant to his martial law authority. There was a
proliferation of newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were designated to head or
sit as members of the board with the corresponding salaries, emoluments, per diems,
allowances and other perquisites of office. Most of these instrumentalities have remained
up to the present time.
Cdpr

This practice of holding multiple offices or positions in the government soon led to
abuses by unscrupulous public officials who took advantage of this scheme for purposes
of self-enrichment. In fact, the holding of multiple offices in government was strongly
denounced on the floor of the Batasang Pambansa. 12 This condemnation came in
reaction to the published report of the Commission on Audit, entitled "1983 Summary
Annual Audit Report on: Government-Owned and Controlled Corporations, SelfGoverning Boards and Commissions" which carried as its Figure No. 4 a "Roaster of
Membership in Governing Boards of Government-Owned and Controlled Corporations
as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in
government service were the data contained therein that Roberto V. Ongpin was a
member of the governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A.
Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and
Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B.

Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of
ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of discontent
with the Marcos regime. It was therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986 Constitutional Commission,
convened as it was after the people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions under consideration which are
envisioned to remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani
A. Cruz during the deliberations in these cases, one of the strongest selling points of the
1987 Constitution during the campaign for its ratification was the assurance given by its
proponents that the scandalous practice of Cabinet members holding multiple positions in
the government and collecting unconscionably excessive compensation therefrom would
be discontinued.
LibLex

But what is indeed significant is the fact that although Section 7, Article IX-B already
contains a blanket prohibition against the holding of multiple offices or employment in
the government subsuming both elective and appointive public officials, the
Constitutional Commission should see it fit to formulate another provision, Sec. 13,
Article VII, specifically prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other office or employment
during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was to impose a
stricter prohibition on the President and his official family in so far as holding other
offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with
other provisions of the Constitution on the disqualifications of certain public officials or
employees from holding other offices or employment. Under Section 13, Article VII,
"(N)o Senator or Member of the House of Representatives may hold any other office or
employment in the Government. . .". Under Section 5(4), Article XVI, "(N)o member of
the armed forces in the active service shall, at any time, be appointed in any capacity to a
civilian position in the Government, including government-owned or controlled
corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon
by respondents provides "(U)nless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other office or employment in the
Government."

It is quite notable that in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the government and
government-owned or controlled corporations or their subsidiaries. In striking contrast is
the wording of Section 13, Article VII which states that "(T)he President, Vice-President,
the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure."
In the latter provision, the disqualification is absolute, not being qualified by the phrase
"in the Government." The prohibition imposed on the President and his official family is
therefore all-embracing and covers both public and private office or employment.
cdll

Going further into Section 13, Article VII, the second sentence provides: "They shall not,
during said tenure, directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries."
These sweeping, all-embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public officials or
employees such as the Members of Congress, members of the civil service in general and
members of the armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon said class stricter
prohibitions.
LexLib

Such intent of the 1986 Constitutional Commission to be stricter with the President and
his official family was also succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor deliberations and debate that
there was no symmetry between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the Executive Department.
Commissioner Foz commented, "We actually have to be stricter with the President and
the members of the Cabinet because they exercise more powers and, therefore, more
checks and restraints on them are called for because there is more possibility of abuse in
their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold other
office or employment in the government during their tenure when such is allowed by law
or by the primary functions of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the general rule applicable to all
elective and appointive public officials and employees, while Section 13, Article VII is
meant to be the exception applicable only to the President, the Vice-President, Members
of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions

provided under Section 7, Article IX-B of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would render nugatory and
meaningless the manifest intent and purpose of the framers of the Constitution to impose
a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the
government during their tenure. Respondents' interpretation that Section 13 of Article VII
admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the high-ranking
officials of the Executive Branch from the President to Assistant Secretary, on the one
hand, and the generality of civil servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any other office or position in the
government during their tenure.
cdll

Moreover, respondents' reading of the provisions in question would render certain parts
of the Constitution inoperative. This observation applies particularly to the VicePresident who, under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who as an elective public
official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible "for appointment or
designation in any capacity to any public office or position during his tenure." Surely, to
say that the phrase "unless otherwise provided in this Constitution" found in Section 13,
Article VII has reference to Section 7, par. (1) of Article IX-B would render meaningless
the specific provisions of the Constitution authorizing the Vice-President to become a
member of the Cabinet, 15 and to act as President without relinquishing the VicePresidency where the President shall not have been chosen or fails to qualify. 16Such
absurd consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article IX-B providing the general rule
and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the
same manner must Section 7, par. (2) of Article IX-B be construed vis-a-vis Section 13,
Article VII.
LexLib

It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. 17 Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution 18 and one section is not to be allowed to defeat another, if
by any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make
the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government
during their tenure, the exception to this prohibition must be read with equal severity. On
its face, the language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the privilege of
holding multiple government offices or employment. Verily, wherever the language used
in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. 21 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, to wit: the Vice-President being appointed as a member of the Cabinet
under Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being exofficio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
llcd

The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be construed as applying to posts
occupied by the Executive officials specified therein without additional compensation in
an ex-officio capacity as provided by law and as required 22 by the primary functions of
said officials' office. The reason is that these posts do no comprise "any other office"
within the contemplation of the constitutional prohibition but are properly an imposition
of additional duties and functions on said officials. 23To characterize these posts
otherwise would lead to absurd consequences, among which are: The President of the
Philippines cannot chair the National Security Council reorganized under Executive
Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and
Local Government sit in this Council, which would then have no reason to exist for lack
of a chairperson and members. The respective undersecretaries and assistant secretaries,
would also be prohibited.
LLphil

The Secretary of Labor and Employment cannot chair the Board of Trustees of the
National Manpower and Youth Council (NMYC) or the Philippine Overseas
Employment Administration (POEA), both of which are attached to his department for
policy coordination and guidance. Neither can his Undersecretaries and Assistant
Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can
their respective undersecretaries and assistant secretaries. The Central Bank Governor
would then be assisted by lower ranking employees in providing policy direction in the
areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of government,

is not to be interpreted as demanding the impossible or the impracticable; and

unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as
covering positions held without additional compensation in ex-officio capacities as
provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an
"authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position." Ex-officio likewise
denotes an "act done in an official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the office." 27 An ex-officio
member of a board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment. 28 To illustrate, by express provision of law, the
Secretary of Transportation and Communications is the ex-officio Chairman of the Board
of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs.
Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of
section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members
of the Board to qualify they need only be designated by the respective department heads.
With the exception of the representative from the private sector, they sit ex-officio. In
order to be designated they must already be holding positions in the offices mentioned in
the law. Thus, for instance, one who does not hold a previous appointment in the Bureau
of Customs, cannot, under the act, be designated a representative from that office. The
same is true with respect to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed
under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance and
thus means chief or principal function. The term is not restricted to the singular but may
refer to the plural. 33 The additional duties must not only be closely related to, but must
be required by the official's primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of Finance and Budget sitting as
members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority 34and the Civil
Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related,
inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official,
such additional functions would fall under the purview of "any other office" prohibited
by the Constitution. An example would be the Press Undersecretary sitting as a member
of the Board of the Philippine Amusement and Gaming Corporation. The same rule

applies to such positions which confer on the cabinet official management functions
and/or monetary compensation, such as but not limited to chairmanships or directorships
in government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet
Members, their deputies or assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their special knowledge, expertise
and skill in their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy direction,
continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting national
interest and general welfare and delivering basic services to the people. It is consistent
with the power vested on the President and his alter egos, the Cabinet members, to have
control of all the executive departments, bureaus and offices and to ensure that the laws
are faithfully executed. 35 Without these additional duties and functions being assigned
to the President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by law
and as required by their primary functions, they would be deprived of the means for
control and supervision, thereby resulting in an unwieldy and confused bureaucracy.
LLjur

It bears repeating though that in order that such additional duties or functions may not
transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the primary functions of the
official concerned, who is to perform the same in an ex-officio capacity as provided by
law, without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. It
should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary
Board as an ex-officio member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in defining policy in monetary and
banking matters, which come under the jurisdiction of his department. For such
attendance, therefore, he is not entitled to collect any extra compensation, whether it be in
the form of a per diem or an honorarium or an allowance, or some other such euphemism.
By whatever name it is designated, such additional compensation is prohibited by the
Constitution.
It is interesting to note that during the floor deliberations on the proposal of
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally
found as Section 3 of the General Provisions, the exception "unless required by the

functions of his position," 36 express reference to certain high-ranking appointive public

officials like members of the Cabinet were made. 37 Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances
when although not required by current law, membership of certain high-ranking
executive officials in other offices and corporations is necessary by reason of said
officials' primary functions. The example given by Commissioner Monsod was the
Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority
for saying that additional functions and duties flowing from the primary functions of the
official may be imposed upon him without offending the constitutional prohibition under
consideration, it cannot, however, be taken as authority for saying that this exception is
by virtue of Section 7, par. (2) of Article IX-B. This colloquy between the two
Commissioners took place in the plenary session of September 27, 1986. Under
consideration then was Section 3 of Committee Resolution No. 531 which was the
proposed article on General Provisions. 39 At that time, the article on the Civil Service
Commission had been approved on third reading on July 22, 1986, 40while the article on
the Executive Department, containing the more specific prohibition in Section 13, had
also been earlier approved on third reading on August 26, 1986. 41It was only after the
draft Constitution had undergone reformatting and "styling" by the Committee on Style
that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B
and reworded "Unless otherwise allowed by law or by the primary functions of his
position. . . ."
What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the
matter. What was primarily at issue and approved on that occasion was the adoption of
the qualified and delimited phrase "primary functions" as the basis of an exception to the
general rule covering all appointive public officials. Had the Constitutional Commission
intended to dilute the specific prohibition in said Section 13 of Article VII, it could have
re-worded said Section 13 to conform to the wider exceptions provided in then Section 3
of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on
the Civil Service Commission.
prLL

That this exception would in the final analysis apply also to the President and his official
family is by reason of the legal principles governing additional functions and duties of
public officials rather than by virtue of Section 7, par. 2, Article IX-B. At any rate, we
have made it clear that only the additional functions and duties "required," as opposed to
"allowed," by the primary functions may be considered as not constituting "any other
office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting

Constitution, resort thereto may be had only when other guides fail 42 as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its face." 43
The proper interpretation therefore depends more on how it was understood by the people
adopting it than in the framer's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution
seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices or employment in the
government, except in those cases specified in the Constitution itself and as above
clarified with respect to posts held without additional compensation in an ex-officio
capacity as provided by law and as required by the primary functions of their office, the
citation of Cabinet members (then called Ministers) as examples during the debate and
deliberation on the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the constitution's manifest
intent and the people's understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7,
par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23,
1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet
members, undersecretaries or assistant secretaries may hold in addition to their primary
position to not more than two (2) positions in the government and government
corporations, Executive Order No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate of Section 13, Article VII of
the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the
1987 Constitution itself.
cdphil

The Court is alerted by respondents to the impractical consequences that will result from
a strict application of the prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet members would be stripped of
their offices held in an ex-officio capacity, by reason of their primary positions or by
virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the
executive official concerned without additional compensation as provided by law and as
required by the primary functions of his office do not fall under the definition of "any
other office" within the contemplation of the constitutional prohibition. With respect to
other offices or employment held by virtue of legislation, including chairmanships or
directorships in government owned or controlled corporations and their subsidiaries,
suffice it to say that the feared impractical consequences are more apparent than real.
Being head of an executive department is no mean job. It is more than a full-time job,

requiring full attention, specialized knowledge, skills and expertise. If maximum benefits
are to be derived from a department head's ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of other governmental
offices or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in haphazardness
and inefficiency. Surely the advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department
head spreading himself too thin and taking in more than what he can handle.
prLL

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V.
Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget
Guillermo Carague to immediately relinquish their other offices or employment, as herein
defined, in the government, including government-owned or controlled corporations and
their subsidiaries. With respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual services rendered. 46 It has been
held that "in cases where there is no de jure officer, a de facto officer, who, in good faith
has had possession of the office and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may in an appropriate action recover
the salary, fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the public should
benefit by the services of an officer de facto and then be freed from all liability to pay any
one for such services. 47 Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned positions may
therefore be retained by them.
prLL

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED.

Executive Order No. 284 is hereby declared null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento and Grio-Aquino, JJ., took no part.

Paras, J., I concur because cabinet members like the members of the Supreme Court are
not supermen.
(Civil Liberties Union v. Executive Secretary, G.R. No. 83896, 83815, February 22,
1991)
|||

EN BANC
[G.R. No. 86564. August 1, 1989.]
RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON
ELECTIONS (COMELEC) EN BANC AND LUIS LARDIZABAL,
respondents.
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.
SYLLABUS
1. SPECIAL CIVIL ACTION; QUO WARRANTO; PETITION FILED TIMELY.
The Court has considered the arguments of the parties and holds that the petition for quo
warranto was filed on time. We agree with the respondents that the fee was paid during
the ten-day period as extended by the pendency of the petition when it was treated by the
COMELEC as a pre-proclamation proceeding which did not require the payment of a
filing fee. At that, we reach this conclusion only on the assumption that the requirement
for the payment of the fees in quo warranto proceedings was already effective. There is
no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took
effect only on March 3, 1988, seven days after its publication in the February 25, 1988
issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was
filed.
2. ID.; ID.; PAYMENT OF FILING FEES NECESSARY FOR CONFERMENT OF
JURISDICTION; COURT MAY ALLOW PAYMENT WITHIN A REASONABLE
TIME. It is true that in the Manchester Case, we required the timely payment of the
filing fee as a precondition for the timeliness of the filing of the case itself. In Sun
Insurance Office, Ltd. v. Asuncion, however, this Court, taking into account the special
circumstances of that case, reiterated the rule that the trial court acquires jurisdiction over
a case only upon the payment of the prescribed filing fee. However, this court may allow
the payment of the said fee within a reasonable time. In the event of non-compliance
therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18,
of the COMELEC Rules of Procedure adopted on June 20, 1988.
3. CIVIL PROCEDURE; ACTION; RESOLUTION ON THE MERITS INSTEAD OF
REMANDING THE CASE TO THE TRIAL COURT FOR FURTHER
PROCEEDINGS; AS DEMANDED BY THE DICTATES OF JUSTICE. Remand of
the case to the lower court for further reception of evidence is not necessary where the

court is in a position to resolve the dispute based on the records before it. On many
occasions, the Court, in the public interest and the expeditious administration of justice,
has resolved actions on the merits instead of remanding them to the trial court for further
proceedings, such as where the ends of justice would not be subserved by the remand of
the case or when public interest demands an early disposition of the case or where the
trial court had already received all the evidence of the parties.
4. ID.; ID.; DOCTRINE OF RES JUDICATA NOT APPLICABLE TO QUESTIONS OF
CITIZENSHIP; DEFENSE TO BE SEASONABLY INVOKED. There is also the
claim that the decision can no longer be reversed because of the doctrine of res judicata,
but this too must be dismissed. This doctrine does not apply to questions of citizenship,
as the Court has ruled in several cases. Moreover, it does not appear that it was properly
and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked
only when the petitioner filed his reply to the private respondent's comment. Besides, one
of the requisites of res judicata, to wit, identity of parties, is not present in this case.
5. POLITICAL LAW; NATURALIZATION; ACQUISITION OF CITIZENSHIP BY
NATURALIZATION. The petitioner's contention that his marriage to an Australian
national in 1976 did not automatically divest him of Philippine citizenship is irrelevant.
There is no claim or finding that he automatically ceased to be a Filipino because of that
marriage. He became a citizen of Australia because he was naturalized as such through a
formal and positive process, simplified in his case because he was married to an
Australian citizen. As a condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance.
6. ID.; CITIZENSHIP; MODES OF LOSING PHILIPPINE CITIZENSHIP. CA No.
63 enumerates the modes by which Philippine citizenship may be lost. Among these are:
(1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws of a foreign
country, all of which are applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance
of citizens is inimical to the national interest and shall be dealt with by law."
7. ID.; ID.; ANNULMENT OF MARRIAGE TO A FOREIGNER NOT AN
AUTOMATIC RESTORATION OF PHILIPPINE CITIZENSHIP. Even if it be
assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it
was found that his marriage to the Australian citizen was bigamous, that circumstance
alone did not automatically restore his Philippine citizenship. His divestiture of
Australian citizenship does not concern us here. That is a matter between him and his
adopted country. What we must consider is the fact that he voluntarily and freely rejected
Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign
country. The possibility that he may have been subsequently rejected by Australia, as he

claims, does not mean that he has been automatically reinstated as a citizen of the
Philippines.
8. ID.; ID.; MEANS OF REACQUIRING PHILIPPINE CITIZENSHIP. Under CA
No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act
of Congress, by naturalization, or by repatriation. It does not appear in the record, nor
does the petitioner claim, that he has reacquired Philippine citizenship by any of these
methods.
9. ID.; ID.; LACK OF PHILIPPINE CITIZENSHIP ON THE DAY OF LOCAL
ELECTIONS; GROUND FOR DISQUALIFICATION AS A CANDIDATE FOR
MAYOR. The petitioner is not now, nor was he on the day of the local elections on
January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter
under the Constitution itself because of his alienage. He was therefore ineligible as a
candidate for mayor of Baguio City under Section 42 of the Local Government Code.
10. ID.; ELECTION; QUALIFICATIONS OF CANDIDATE FOR PUBLIC OFFICE,
CONTENDING REQUIREMENTS. The probability that many of those who voted for
the petitioner may have done so in the belief that he was qualified only strengthens the
conclusion that the results of the election cannot nullify the qualifications for the office
now held by him. These qualifications are continuing requirements; once any of them is
lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the
citizenship and voting requirements were not subsequently lost but were not possessed at
all in the first place on the day of the election. The petitioner was disqualified from
running as mayor and, although elected, is not now qualified to serve as such.
11. ID.; ELECTION; CANDIDATE OBTAINING THE SECOND HIGHEST NUMBER
OF VOTES; NOT QUALIFIED TO REPLACE THE DISQUALIFIED CANDIDATE;
SANTOS RULING REVERSED. Finally, there is the question of whether or not the
private respondent, who filed the quo warranto petition, can replace the petitioner as
mayor. He cannot. The simple reason is that as he obtained only the second highest
number of votes in the election, he was obviously not the choice of the people of Baguio
City. Re-examining Santos v. Commission on Election, 137 SCRA 740 the Court finds,
and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos,
which represents the more logical and democratic rule. There the Court held it would be
extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.

DECISION

CRUZ, J :
p

The petitioner asks this Court to restrain the Commission on Elections from
looking into the question of his citizenship as a qualification for his office as Mayor
of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The
issue is whether or not the public respondent has jurisdiction to conduct any inquiry
into this matter, considering that the petition for quo warranto against him was not
filed on time.
cdphil

It is noteworthy that this argument is based on the alleged tardiness not of the
petition itself but of the payment of the filing fee, which the petitioner contends was
an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This
brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if
it is shown that the petition was indeed filed beyond the reglementary' period, there is
no question that this petition must be granted and the challenge abated.
The petitioner's position is simple. He was proclaimed mayor-elect of Baguio
City on January 20, 1988. The petition for quo warranto was filed by the private
respondent on January 26,1988, but no filing fee was paid on that date. This fee was
finally paid on February 10, 1988, or twenty-one days after his proclamation. As the
petition by itself alone was ineffectual without the filing fee, it should be deemed filed
only when the fee was paid. This was done beyond the reglementary period provided
for under Section 253 of the Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. Any voter contesting the election of a
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall
files sworn petition for quo warranto with the Commission within ten days after
the proclamation of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36,
Section 5, of the Procedural Rules of the COMELEC providing that
Sec. 5. No petition for quo warranto shall be given due course without the
payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the
legal research fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing
fee is essential to the timeliness of the filing of the petition itself. He cites many
rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid out of
time. In fact, he says, it was filed ahead of time. His point is that when he filed his
"Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation

and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it
as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No
docket fee was collected although it was offered. It was only on February 8, 1988, that
the COMELEC decided to treat his petition as solely for quo warranto and redocketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He
immediately paid the filing fee on that date.
The private respondent argues further that during the period when the
COMELEC regarded his petition as a pre-proclamation controversy, the time for
filing an election protest or quo warranto proceeding was deemed suspended under
Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5,
of the COMELEC Rules of Procedure cited by the petitioner, became effective only
on November 15, 1988, seven days after publication of the said Rules in the Official
Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to
January 26,1988, when he filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did
not require it, the payment of filing fees was still necessary under Res. No. 1996 and,
before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12,
1988, and February 26, 1980, respectively. To this, the private respondent counters
that the latter resolution was intended for the local elections held on January 30, 1980,
and did not apply to the 1988 local elections, which were supposed to be governed by
the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3,
1988, following the lapse of seven days alter its publication as required by RA No.
6646, otherwise known as the Electoral Reform Law of 1987, which became effective
on January 5,1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules
and regulations promulgated by the Commission shall take effect on the seventh
day after their publication in the Official Gazette or in at least (2) daily
newspapers of general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the
petition for quo warranto was filed on time. We agree with the respondents that the
fee was paid during the ten-day period as extended by the pendency of the petition
when it was treated by the COMELEC as a pre-proclamation proceeding which did
not require the payment of a filing fee. At that, we reach this conclusion only on the
assumption that the requirement for the payment of the fees in quo warranto
proceedings was already effective. There is no record that Res. No. 1450 was even
published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven
days after its publication in the February 25, 1988 issues of the Manila Chronicle and
the Philippine Daily Inquirer, or after the petition was filed.
cdasia

The petitioner forgets Taada v. Tuvera 4 when he argues that the resolutions
became effective "immediately upon approval" simply because it was so provided

therein. We held in that case that publication was still necessary under the due process
clause despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and whatever
delay there may have been is not imputable to the private respondent's fault or
neglect. It is true that in the Manchester Case, we required the timely payment of the
filing fee as a precondition for the timeliness of the filing of the case itself. In Sun
Insurance Office, Ltd. v. Asuncion, 5 however, this Court, taking into account the
special circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction over a case
only upon the payment of the prescribed filing fee. However, the court may
allow the payment of the said fee within a reasonable time. In the event of noncompliance therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of
Procedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not
paid, the Commission may refuse to take action thereon until they are paid and
may dismiss the action or the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical point that the petition for quo
warranto should be dismissed for failure to pay the filing fee on time, the petitioner
would at the same time minimize his alleged lack of citizenship as "a futile
technicality." It is regrettable, to say the least, that the requirement of citizenship as a
qualification for public office can be so demeaned. what is worse is that it is regarded
as an even less important consideration than the reglementary period the petitioner
insists upon.
This matter should normally end here as the sole issue originally raised by the
petitioner is the timeliness of the quo warranto proceedings against him. However, as
his citizenship is the subject of that proceeding, and considering the necessity for an
early resolution of that more important question clearly and urgently affecting the
public interest, we shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it would
appear that our sole function in this proceeding should be to resolve the single
issue of whether or not the Court of Appeals erred in ruling that the motion for
new trial of the GSIS in question should indeed be deemed pro forma. But
going over the extended pleadings of both parties, the Court is immediately
impressed that substantial justice may not be timely achieved, if we should
decide this case upon such a technical ground alone. We have carefully read all
the allegations and arguments of the parties, very ably and comprehensively

expounded by evidently knowledgeable and unusually competent counsel, and

we feel we can better serve the interests of justice by broadening the scope of
our inquiry, for as the record before us stands, we see that there is enough basis
for us to end the basic controversy between the parties here and now,
dispensing, however, with procedural steps which would not anyway affect
substantially the merits of their respective claims. 6
xxx xxx xxx
While it is the fault of the petitioner for appealing to the wrong court and
thereby allowing the period for appeal to lapse, the more correct procedure was
for the respondent court to forward the case to the proper court which was the
Court of Appeals for appropriate action. Considering, however, the length of
time that this case has been pending, we apply the rule in the case of Del
Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in
Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states:
". . . it is a cherished rule of procedure for this Court to always
strive to settle the entire controversy in a single proceeding leaving no
root or branch to bear the seeds of future litigation. No useful purpose
will be served if this case is remanded to the trial court only to have its
decision raised again to the Intermediate Appellate Court and from there
to this Court." (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al.
(G.R. No. 50141, January 29,1988), we stated that:
". . . But all those relevant facts are now before this Court. And
those facts dictate the rendition of a verdict in the petitioner's favor.
There is therefore no point in referring the case back to the Court of
Appeals. The facts and the legal propositions involved will not change,
nor should the ultimate judgment. Considerable time has already elapsed
and, to serve the ends of justice, it is time that the controversy is finally
laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes,
108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA
197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of
Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162). 'Sound
practice seeks to accommodate the theory which avoids waste of time,
effort and expense, both to the parties and the government, not to speak
of delay in the disposal of the case (of: Fernandez v. Garcia, 92 Phil.
592, 597). A marked characteristic of our judicial set-up is that where
the dictates of justice so demand . . . the Supreme Court should act, and
act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing
Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this
case, the dictates of justice do demand that this Court act, and act with
finality." 7

xxx xxx xxx

Remand of the case to the lower court for further reception of evidence is not
necessary where the court is in a position to resolve the dispute based on the
records before it. On many occasions, the Court, in the public interest and the
expeditious administration of justice, has resolved actions on the merits instead
of remanding them to the trial court for further proceedings, such as where the
ends of justice would not be subserved by the remand of the case or when public
interest demands an early disposition of the case or where the trial court had
already received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where,
to repeat for stress, it is claimed that a foreigner is holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent COMELEC implicitly
adopted as "its own" private respondent's repeated assertion that petitioner is no
longer a Filipino citizen. In so doing, has not respondent COMELEC effectively
disqualified itself, by reason of prejudgment, from resolving the petition for quo
warranto filed by private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the
merits of this case.
Going over the record, we find that there are two administrative decisions on
the question of the petitioner's citizenship. The first was rendered by the Commission
on Elections on May 12, 1982, and found the petitioner to be a citizen of the
Philippines. 10 The second was rendered by the Commission on Immigration and
Deportation on September 13, 1988, and held that the petitioner was not a citizen of
the Philippines. 11
The first decision was penned by then COMELEC Chairman Vicente Santiago,
Jr., with Commissioners Pabalate, Savellano and Opinion concurring in full and
Commissioner Bacungan concurring in the dismissal of the petition "without
prejudice to the issue of the respondent's citizenship being raised a new in a proper
case. "Commissioner Sagadraca reserved his vote, while Commissioner Felipe was
for deferring decision until representations shall have been made with the Australian
Embassy for official verification of the petitioner's alleged naturalization as an
Australian.
The second decision was unanimously rendered by Chairman Miriam
Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on
Immigration and Deportation.
prLL

It is important to observe that in the proceeding before the COMELEC, there

was no direct proof that the herein petitioner had been formally naturalized as a
citizen of Australia. This conjecture, which was eventually rejected, was merely
inferred from the fact that he had married an Australian citizen, obtained an
Australian passport, and registered as en alien with the CID upon his return to this
country in 1980.
On the other hand, the decision of the CID took into account the official
statement of the Australian Government dated August 12, 1984, through its Consul in
the Philippines, that the petitioner was still an Australian citizen as of that date by
reason of his naturalization in 1976. That statement 12 is reproduced in full as
follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue
of a certificate of appointment signed and sealed by the Australian Minister of
State for Foreign Affairs on 19 October 1983, and recognized as such by Letter
of Patent signed and sealed by the Philippines Acting Minister of Foreign
Affairs on 23 November 1983, do hereby provide the following statement in
response to the Subpoena Testificandum dated 9 April 1984 in regard to the
Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No.
84-73). and do hereby certify that the statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was
married in the Philippines to an Australian citizen. As the spouse of an
Australian citizen, he was not required to meet normal requirements for the
grant of citizenship and was granted Australian citizenship by Sydney on 28
July 1976.
B) Any person over the age of 16 years who is granted Australian citizenship
must take an oath of allegiance or make an affirmation of allegiance. The
wording of the oath of affirmation is: "I. . . ., renouncing all other allegiance . . .
.," etc. This need not necessarily have any effect on his former nationality as
this would depend on the citizenship laws of his former country.
C) The marriage was declared void in the Australian Federal Court in Sydney
on 27 June 1980 on the ground that the marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in respect of
Section 50 of Australian Citizenship Act 1948 which relates to the giving of
false or misleading information of a material nature in respect of an application
for Australian citizenship. If such a prosecution was successful, he could be
deprived of Australian citizenship under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of
Australian citizenship:
(i) He could make a declaration of Renunciation of Australian
citizenship under Section 18 of the Australian Citizenship Act, or
(ii) If he acquired another nationality, (for example, Filipino) by
a formal end voluntary act other than marriage, then he would
automatically lose his Australian citizenship under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND
SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12TH DAY OF
APRIL 1984.
DONE AT MANILA IN THE PHILIPPINES.
(Signed)
GRAHAM C. WEST
Consul

This was affirmed later by the letter of February 1, 1988, addressed to the
private respondent by the Department of Foreign Affairs reading as follows: 13
Sir:
With reference to your letter dated 1 February 1988, I wish to inform you that
inquiry made with the Australian Government through the Embassy of the
Philippines in Canberra has elicited the following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship
on 28 July 1976.
2) That prior to 17 July 1986, a candidate for Australian
citizenship had to either swear an oath of allegiance or make an
affirmation of allegiance which carries a renunciation of "all other
allegiance."
Very truly yours,
For the Secretary of Foreign Affairs:
(SGD) RODOLFO SEVERINO, JR
Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized
Australian reading as follows:
OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be
faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of
Australia, Her heirs and successors according to law, and that I will faithfully observe
the laws of Australia and fulfill my duties as an Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and
declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth
the Second, Queen of Australia, Her heirs and successors according to law, and
that I will faithfully observe the Laws of Australia and fulfill my duties as an
Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither
does he deny that he obtained Australian Passport No. 754705, which he used in
coming back to the Philippines in 1980, when he declared before the immigration
authorities that he was an alien and registered as such under Alien Certificate of
Registration No. B-323985. 16 He later asked for the change of his status from
immigrant to a returning former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809. 17 He also categorically declared that he was a
citizen of Australia in a number of sworn statements voluntarily made by him and.
even sought to avoid the jurisdiction of the barangay court on the ground that he was a
foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts as
"mistakes" that did not divest the petitioner of his citizenship, although, as earlier
noted, not all the member joined in this finding. We reject this ruling as totally
baseless. The petitioner is not an unlettered person who was not aware of the
consequences of his acts, let alone the fact that he was assisted by counsel when he
performed these acts.
The private respondent questions the motives of the COMELEC at that time
and stresses Labo's political affiliation with the party in power then, but we need not
go into that now.
There is also the claim that the decision can no longer be reversed because of
the doctrine of res judicata, but this too must be dismissed. This doctrine does not
apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover,
it does not appear that it was properly and seasonably pleaded, in a motion to dismiss
or in the answer, having been invoked only when the petitioner filed his reply 20 to

the private respondent's comment. Besides, one of the requisites of res judicata, to
wit, identity of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian national in 1976
did not automatically divest him of Philippine citizenship is irrelevant. There is no
claim or finding that he automatically ceased to be a Filipino because of that
marriage. He became a citizen of Australia because he was naturalized as such
through a formal and positive process, simplified in his case because he was married
to an Australian citizen. As a condition for such naturalization, he formally took the
Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above.
Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to
Her Majesty Elizabeth the Second, Queen of Australia. . . . , and to fulfill his duties as
an Australian citizen."
cdll

The petitioner now claims that his naturalization in Australia made him at
worst only a dual national and did not divest him of his Philippine citizenship. Such a
specious argument cannot stand against the clear provisions of CA No. 63, which
enumerates the modes by which Philippine citizenship may be lost. Among these are:
(1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws of a foreign
country, all of which are applicable to the petitioner. It is also worth mentioning in
this connection that under Article IV, Section 5, of the present Constitution, "Dual
allegiance of citizens is inimical to the national interest and shall be dealt with by
law."
Even if it be assumed that, as the petitioner asserts, his naturalization in
Australia was annulled after it was found that his marriage to the Australian citizen
was bigamous, that circumstance alone did not automatically restore his Philippine
citizenship. His divestiture of Australian citizenship does not concern us here. That is
a matter between him and his adopted country. What we must consider is the fact that
he voluntarily and freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship of a foreign country. The possibility that he may have been
subsequently rejected by Australia, as he claims, does not mean that he has been
automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be
reacquired by direct act of Congress, by naturalization, or by repatriation. It does not
appear in the record, nor does the petitioner claim, that he has reacquired Philippine
citizenship by any of these methods. He does not point to any judicial decree of
naturalization as to any statute directly conferring Philippine citizenship upon him.
Neither has he shown that he has complied with PD No. 725, providing that:
. . . (2) natural-born Filipinos who have lost their Philippine citizenship may
reacquire Philippine citizenship through repatriation by applying with the

Special Committee on Naturalization created by Letter of Instruction No. 270,

and, if their applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, after which they shall be deemed to have
reacquired Philippine citizenship. The Commission on Immigration and
Deportation shall thereupon cancel their certificate of registration. (Emphasis
supplied.)

That is why the Commission on Immigration and Deportation rejected his

application for the cancellation of his alien certificate of registration. And that is also
the reason we must deny his present claim for recognition as a citizen of the
Philippines.
The petitioner is not now, nor was he on the day of the local elections on
January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified
voter under the Constitution itself because of his alienage. 21 He was therefore
ineligible as a candidate for mayor of Baguio City under Section 42 of the Local
Government Code providing in material part as follows:
Sec. 42. Qualifications. (1) An elective local official must be a citizen of the
Philippines, at least twenty-three years of age on election day, a qualified voter
registered as such in the barangay, municipality, city or province where he
proposes to be elected, a resident therein for at least one year at the time of the
filing of his certificate of candidacy, and able to read and write English,
Pilipino, or any other local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile

technicality" that should not frustrate the will of the electorate of Baguio City who
elected him by a "resonant and thunderous majority." To be accurate, it was not as
loud as all that, for his lead over the second-placer was only about 2,100 votes. In any
event, the people of that locality could not have, even unanimously, changed the
requirements of the Local Government Code and the Constitution. The electorate had
no power to permit a foreigner owing his total allegiance to the Queen of Australia, or
at least a stateless individual owing no allegiance to the Republic of the Philippines,
to preside over them as mayor of their city. Only citizens of the Philippines have that
privilege over their countrymen.
The probability that many of those who voted for the petitioner may have done
so in the belief that he was qualified only strengthens the conclusion that the results of
the election cannot nullify the qualifications for the office now held by him. These
qualifications are continuing requirements; once any of them is lost during
incumbency, title to the office itself is deemed forfeited. In the case at bar, the
citizenship and voting requirements were not subsequently lost but were not
possessed at all in the first place on the day of the election. The petitioner was
disqualified from running as mayor and, although elected, is not now qualified to
serve as such.
LLpr

Finally, there is the question of whether or not the private respondent, who
filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The
simple reason is that as he obtained only the second highest number of votes in the
election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections, 22 decided in 1985. In that case, the candidate who placed second was
proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregarded as stray. In effect, the
second placer won by default. That decision was supported by eight members of the
Court then, 23 with three dissenting 24 and another two reserving their vote.25 One was
on official leave. 26
Re-examining that decision, the Court finds, and so holds, that it should be
reversed in favor of the earlier case of Geronimo v. Ramos, 27 which represents the
more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs. Paredes, 28 was supported by ten members of the
Court, 29 without any dissent, although one reserved his vote, 30 another took no part,
31 and two others were an leave. 32 There the Court held:
". . . it would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their
ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is
a fundamental idea in all republican forms of government that no one can be
declared elected and no measure can be declared carried unless he or it receives
a majority or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected
does not necessarily entitle the candidate who obtained the second highest
number of votes to be declared the winner of the elective office. The votes cast
for a dead, disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence of a statute
which clearly asserts a contrary political and legislative policy on the matter, if
the votes were cast in the sincere belief that the candidate was alive, qualified,
or eligible, they should not be treated as stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his
status as such and cherish this priceless gift that, out of more than a hundred other
nationalities, God has seen fit to grant him. Having been so endowed, he must not

lightly yield this precious advantage, rejecting it for another land that may offer him
material and other attractions that he may not find in his own country. To be sure, he
has the right to renounce the Philippines if he sees fit and transfer his allegiance to a
state with more allurements for him. 33 But having done so, he cannot expect to be
welcomed back with open arms once his taste for his adopted country turns sour or he
is himself disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered
after its renunciation. It may be restored only after the returning renegade makes a
formal act of re-dedication to the country he has abjured and he solemnly affirms once
again his total and exclusive loyalty to the Republic of the Philippines. This may not
be accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen
of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor
of Baguio City. He is ordered to VACATE his office and surrender the same to the
Vice-Mayor of Baguio City once this decision becomes final and executory. The
temporary restraining order dated January 31, 1989, is LIFTED.
Fernan, C . J ., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ .,
concur.

Separate Opinions
GUTIERREZ, JR., J ., concurring:
As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June
23, 1989) and inspite of what would otherwise be insuperable procedural obstacles, I
am constrained to concur in the Court's decision so forcefully and felicitously written
by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can
countenance a citizen of a foreign country or one who has renounced Filipino
citizenship sitting as the mayor of one of the most important cities in the Philippines.
dctai

What was raised to the Court was only the issue of the COMELEC's
jurisdiction to inquire into the citizenship of the petitioner. Ordinarily, we would have
limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the
case for further proceedings and the rendition of a decision. Under Section 7, Article
XI-A of the Constitution, a decision, order, or ruling of the COMELEC may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof. No decision on the petitioner's citizenship has been
rendered and no decision can, as yet, be elevated to us for review. I, therefore,
reiterate my statement in Frivaldo that my concurrence is limited only to cases

involving citizenship and disloyalty but not to any of the many other grounds for
disqualification cited in my concurring opinion.
Our decision to disqualify the petitioner is particularly distressing to me
because I am impressed by the singular achievements in the beautification of Baguio
City, in the peace and order situation, and in the resurgence of civic pride so visible to
anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However,
I see no other way this case can be resolved except by adopting a pragmatic approach.
It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I join the
rest of the Court.
|||

(Labo, Jr. v. COMELEC, G.R. No. 86564, August 01, 1989)

EN BANC
[G.R. No. L-16924. April 29, 1963.]
ANTONIA A. YEE, petitioner-appellee, vs. The Director of Public
Schools, The Division Superintendent of Schools of Antique, HON.
SECRETARY OF EDUCATION, and HON. COMMISSIONER OF
CIVIL SERVICE, respondents-appellants.
Acsay & Associates and Silvestre E. Untaran, Jr. for petitioner-appellee.
Solicitor General for respondents-appellants.

DECISION

PADILLA, J :
p

This is an appeal from a judgment rendered by the Court of First Instance of Antique
. . . declaring illegal and contrary to law the removal of the petitioner from her
position as school teacher in the Division of Antique on October 28, 1957, and
ordering the respondents to reinstate the petitioner forthwith to her former
position, with all the privileges appurtenant thereto, and to cause to be paid her
salary of P140.00 a month from November 1, 1957 until the date of her
reinstatement, without pronouncement as to costs (Civil Case No. 12)

upon a stipulation of facts submitted by the parties which is, as follows:

1. That the petitioner was a public school teacher and had been appointed as
such teacher in the Division of Antique in 1951;
2. That the petitioner was a civil service eligible as a regular national teacher
having passed the Junior Teachers' (Regular) Examination that was given on or
about December 29, 1955;
3. That the petitioner was receiving a monthly salary of P140.00 as such
teacher;
4. That in the school year 1957-1958 the petitioner was actually teaching in the
Buhang Elementary School, Buhang Hamtic, Antique;

5. That petitioner having married Mr. Ng Foo alias Pio Chet Yee, a Chinese
citizen, on August 10, 1957 is presently a Chinese citizen;
6. That effective sometime on October 28, 1957 the petitioner was removed
from her teaching service by virtue of Special Order No. 296, series of 1957,
dated October 25, 1957, issued by the Division Superintendent of Schools of
Antique hereto attached as "Annex A", and this was pursuant to the 2nd
indorsement of the Director of Public Schools dated October 14, 1957, hereto
attached (as) "Annex B", disauthorizing the continuance in the service of the
petitioner on account of Circular No. 40 series of 1947, hereto attached as
"Annex C";
7. That prior to the effectivity of the order of removal the petitioner wrote a
letter to the Commissioner of Civil Service dated October 25, 1957 hereto
attached as "Annex D";
8. That petitioner wrote another letter dated September 26, 1958 addressed to
the Division Superintendent of Schools of Antique asking for reinstatement
which is hereto attached as "Annex E";
9. That Special Order No. 296 of the Division Superintendent of Schools of
Antique (Annex A) the ruling of the Director of Public Schools in his 2nd
indorsement dated October 14, 1957 (Annex B), and Circular No. 40, series of
1947 (Annex C) had never been appealed by the petitioner to the Secretary of
Education;
10. That when this case was filed sometime on October 11, 1958, the original
respondents were only the Director of Public Schools and the Division
Superintendent of Schools of Antique;
11. That the petitioner came to know for the first time of the actions taken on
her letter of October 25, 1957 (Annex D) herein, sometime on January 9, 1959
when the respondents Division Superintendent of Schools and the Director of
Public Schools submitted their evidence in support of their motion to dismiss
and which documents are hereto attached as Annexes F, F-1, F-2, F-3, F-4, F-5
and F-6 wherein it appears that the Secretary of Education in its 3rd
indorsement dated March 17, 1958 (Annex F-3) concurs with the
recommendation of the Director of Public Schools for denial of the
reinstatement of the petitioner to the service (Annex F-4) and that on August 26,
1958, in its 4th indorsement the Commissioner of Civil Service likewise
concurs in the action separating Mrs. Antonio A. Yee from the teaching service
(Annex F-2);
12. That petitioner learned of the actions taken by the respondents on her letter
dated September 26, 1958 (Annex E) sometime in May, 1959 and which actions
are embodied in the indorsements hereto attached as Annexes G, G-1, G-2, G-3,

G-4, G-5, G-6 and G-7 indicating that in the 3rd indorsement dated February 2,
1959 (Annex G-4) the Secretary of Education ruled that Mrs. Antonia A. Yee is
still disqualified from holding any position in the teaching service reiterating its
position previously stated in the 3rd indorsement dated March 17, 1958 relative
to the same matter (Annex F-3), and that this reiterated ruling of the Secretary
of Education was duly noted by the Commissioner of Civil Service on March
24, 1959 (Annex G-3);
13. That the original petition for mandamus was filed on October 11, 1958
against the Director of Public Schools and the Division Superintendent of
Schools as the stated respondents; that by virtue of the order of the Court, dated
February 16, 1959, deferring the determination of said motion to dismiss,
respondents' answer to the original petition was submitted to the Court on
February 16, 1959; that on February 18, 1959 petitioner filed a motion for leave
to include the Secretary of Education and the Commissioner of Civil Service as
co-respondents; that to this motion, an opposition to the same was filed on
February 20, 1959 by the original respondents; that in its order of February 23,
1959 the Court ordered the joining of the Secretary of Education and the
Commissioner of Civil Service as additional respondents;
14. That on February 23, 1959, petitioner submitted her amended petition for
mandamus wherein the additional respondents have been included, to which a
motion to dismiss dated April 7, 1959 was filed by the respondents and said
motion to dismiss was denied by the Court in its order of July 24, 1959, but in
that same order, petitioner was directed to amend its petition to include
averments of the caused of action against the Secretary of Education and the
Commissioner of Civil Service; that on July 30, 1959, an amended petition for
mandamus was filed by the petitioner against all the herein respondents and the
corresponding answer to the amended petition was submitted in behalf of the
same respondents on July 31, 1959.
xxx xxx xxx

The questions to determine are whether the appellee's removal as public school teacher
from the Buhang Elementary School, Hamtic, Antique, is illegal; whether she has a cause
of action against the appellants and by mandamus proceedings may secure reinstatement
to her former position; and whether she has exhausted all administrative remedies.
A cause of action exists if upon the facts alleged in a complaint admitted by the adverse
party or proved by admissible and credible evidence a valid judgment may be rendered
by a competent court. In her petition for mandamus the appellee alleges that she was
illegally removed from her teaching position. If that allegation be established or proved, a
valid judgment may be rendered reinstating her to her position. Hence, a cause of action
exists against those responsible for her removal from her position and the remedy of
mandamus is available to secure her reinstatement thereto.

There is, however, no doubt that her removal as a public school teacher because of loss of
Filipino citizenship is legal. Not being included in section 671 of the Revised
Administrative Code which enumerates the officers and employees constituting the
unclassified service, teaching in a public school is in the classified service a public
function which may be performed by Filipino citizens only. An applicant for admission to
examination for entrance into the civil service must be a citizen of the Philippines (
section 675 of the Revised Administrative Code). And after he had qualified himself to
be eligible for appointment to a civil service position and had been appointed to such
position, he must continue to be such citizen. A voluntary change of citizenship or a
change thereof by operation of law disqualifies him to continue holding the civil service
position to which he had qualified and had been appointed. Such being the case, upon the
appellee's marriage on 10 August 1957 to Ng Foo alias Pio Chet Yee, a Chinese citizen,
the appellee ceased to be a citizen of the Philippines, and for that reason she is no longer
qualified to continue holding the civil service position to which she had qualified and had
been appointed.
Section 681 of the Revised Administrative Code which provides that
In making selection from lists of certified eligibles furnished by the
Commissioner, appointing officer shall, when other qualifications are equal,
prefer:
First. Citizens of the Philippines.
Second. Honorably discharged soldiers, sailors, and mariners of the United
States,

is no argument against the limitation of holding public offices to citizens of the

Philippines. The preference provided for in the section quoted above was operative
during the period before 4 July 1946 or before the Philippines became an independent
nation. IN VIEW OF THE CONCLUSION ARRIVED AT, the point of exhaustion of
administrative remedy need not be passed upon.
The judgment appealed from is reversed and petition denied, without pronouncement as
to costs in both instances.
Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes J.B.L., Barrera, Paredes,
Dizon, Regala and Makalintal, JJ., concur.
|||

(Yee v. Director of Public School, G.R. No. L-16924, April 29, 1963)

FIRST DIVISION
[G.R. No. 145368. April 12, 2002.]
SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A.
DESIERTO, in his capacity as Ombudsman, respondent.
Laurel Law Office for petitioner.
The Solicitor General for respondent.
SYNOPSIS
The Evaluation and Preliminary Investigation Bureau of the Office of the
Ombudsman directed petitioner, Chairman of the National Centennial Commission
(NCC), to submit his counter affidavit on the charges of anomalies found by the
Senate Blue Ribbon and Saguisag Committees. The Blue Ribbon Committee
recommended his prosecution for violation of the rules on public bidding on the
award of centennial contracts and manifest bias in the issuance of the Notice to
Proceed in the absence of a valid contract, while the Saguisag Committee
recommended the further investigation of petitioner for violations of Section 3 (e) of
RA. No. 3019, Section 4 (a) in relation to Section 11 of R.A. 6713, and Article 217 of
the Revised Penal Code. Petitioner moved to dismiss on ground of lack of jurisdiction
claiming that he is not a public officer and that NCC is a private organization. The
motion was denied by the Ombudsman, hence, the instant recourse.
The NCC was created under Administrative Order No. 223 and Executive
Order No. 128 to ensure a more coordinated and synchronized celebrations of the
Philippine Centennial and wider participation from the government and nongovernment or private organizations. It aims to implement the state policies on the
promotion of the nation's historical and cultural heritage and resources. It is thus a
public office performing executive functions. Thus, the Chairman of this Committee
is a public officer who may be investigated by the Office of the Ombudsman.
DICSaH

SYLLABUS
1. POLITICAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS; OFFICE OF
THE OMBUDSMAN; POWER TO INVESTIGATE AND PROSECUTE; PLENARY
AND UNQUALIFIED. In the Court's decision in Uy, we held that "it is the
prosecutor, not the Ombudsman, who has the authority to file the corresponding
information/s against petitioner in the regional trial court. The Ombudsman exercise

prosecutorial powers only in cases cognizable by the Sandiganbayan." The foregoing

ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman
in the same case, the Court set aside the foregoing pronouncement in its Resolution dated
March 20, 2001. The Court explained the rationale for this reversal. The power to
investigate and to prosecute granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any public officer or employee when
such act or omission appears to be illegal, unjust, improper or inefficient. The law does
not make a distinction between cases cognizable by the Sandiganbayan and those
cognizable by regular courts. It has been held that the clause "any illegal act or omission
of any public official" is broad enough to embrace any crime committed by a public
officer or employee.
2. POLITICAL LAW; ADMINISTRATIVE LAW; PUBLIC OFFICE AND PUBLIC
OFFICER, DEFINED. A definition of public officers cited in jurisprudence is that
provided by Mechem, a recognized authority on the subject: A public office is the right,
authority and duty, created and conferred by law, by which, for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested
with some portion of the sovereign functions of the government, to be exercised by him
for the benefit of the public. The individual so invested is a public officer.
3. CONSTITUTIONAL
LAW;
EXECUTIVE
DEPARTMENT; NATIONAL
CENTENNIAL COMMISSION (NCC) CREATED UNDER ADMINISTRATIVE
ORDER NO. 223 AND Executive Order No. 128 PERFORMS EXECUTIVE
FUNCTIONS. We hold that the NCC performs executive functions. The executive
power "is generally defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their due observance."
The executive function, therefore, concerns the implementation of the policies as set forth
by law. Clearly, the NCC performs sovereign functions. It is, therefore, a public office,
and petitioner, as its Chair, is a public officer.
4. POLITICAL LAW; ADMINISTRATIVE LAW; PUBLIC OFFICE; SALARY, NOT
A NECESSARY CRITERION FOR DETERMINING NATURE OF POSITION. A
salary is a usual but not a necessary criterion for determining the nature of the position. It
is not conclusive. The salary is a mere incident and forms no part of the office. Where a
salary or fees is annexed, the office is provided for it is a naked or honorary office, and is
supposed to be accepted merely for the public good. Hence, the office of petitioner as
NCC Chair may be characterized as an honorary office, as opposed to a lucrative office
or an office of profit, i.e., one to which salary, compensation or fees are attached. But it is
a public office, nonetheless.
cTCaEA

DECISION

KAPUNAN, J :
p

On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223
"constituting a Committee for the preparation of the National Centennial Celebration in
1998." The Committee was mandated "to take charge of the nationwide preparations for
the National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress." 1
Subsequently, President Fidel V. Ramos issued Executive Order No. 128, "reconstituting
the Committee for the preparation of the National Centennial Celebrations in 1988." It
renamed the Committee as the "National Centennial Commission." Appointed to chair
the reconstituted Commission was Vice-President Salvador H. Laurel. Presidents
Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons. 2
Characterized as an "ad-hoc body," the existence of the Commission "shall terminate
upon the completion of all activities related to the Centennial Celebrations." 3 Like its
predecessor Committee, the Commission was tasked to "take charge of the nationwide
preparations for the National Celebration of the Philippine Centennial of the Declaration
of Philippine Independence and the Inauguration of the Malolos Congress."
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to "prepare, for approval of the President, a Comprehensive Plan for the
Centennial Celebrations within six (6) months from the effectivity of" the Executive
Order.
E.O. No. 128 also contained provisions for staff support and funding:
SEC. 3. The Commission shall be provided with technical and administrative
staff support by a Secretariat to be composed of, among others, detailed
personnel from the Presidential Management Staff, the National Commission
for Culture and the Arts, and the National Historical Institute. Said Secretariat
shall be headed by a full time Executive Director who shall be designated by the
President.
SEC. 4. The Commission shall be funded with an initial budget to be drawn
from the Department of Tourism and the president's Contingent Fund, in an
amount to be recommended by the Commission, and approved by the President.
Appropriations for succeeding years shall be incorporated in the budget of the
Office of the President.

Subsequently, a corporation named the Philippine Centennial Expo '98 Corporation

(Expocorp) was created. 4 Petitioner was among the nine (9) Expocorp incorporators,
who were also its first nine (9) directors. Petitioner was elected Expocorp Chief
Executive Officer.

On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the
Senate denouncing alleged anomalies in the construction and operation of the Centennial
Exposition Project at the Clark Special Economic Zone. Upon motion of Senator Franklin
Drilon, Senator Coseteng's privilege speech was referred to the Committee on
Accountability of Public Officers and Investigation (The Blue Ribbon Committee) and
several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35,
creating an ad hoc and independent citizens' committee to investigate all the facts and
circumstances surrounding the Philippine centennial projects, including its component
activities. Former Senator Rene A.V. Saguisag was appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the
Senate its Committee Final Report No. 30 dated February 26, 1999. Among the
Committee's recommendations was "the prosecution by the Ombudsman/DOJ of Dr.
Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to
Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating in the scheme
to preclude audit by COA of the funds infused by the government for the implementation
of the said contracts all in violation . . . of the anti-graft law." 5
Later, on November 5, 1999, the Saguisag Committee issued its own report. It
recommended "the further investigation by the Ombudsman, and indictment, in proper
cases of," among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of
R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217
of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently
referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On
January 27, 2000, the Bureau issued its Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary investigation be conducted
before the Evaluation and Preliminary Investigation Bureau (EPIB),
Office of the Ombudsman against former NCC and EXPOCORP chair
Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea and
AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of
R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and
Regulations;

2. That the Fact Finding and Intelligence Bureau of this Office, act as the
nominal complainant. 6

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and
Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and
those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioner's motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but
the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a
resolution finding "probable cause to indict respondents SALVADOR H. LAUREL and
TEODORO Q. PEA before the Sandiganbayan for conspiring to violate Section 3(e) of
Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution also
directed that an information for violation of the said law be filed against Laurel and Pea.
Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but
dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining order,
commanding respondents to desist from filing any information before the Sandiganbayan
or any court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral
argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public
officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL
WHICH UNDERTOOK THE FREEDOM RING PROJECT IN
CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND
CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A
PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR
CONTROLLED CORPORATION.

B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A
PUBLIC OFFICE.

C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP
WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER THE ANTIGRAFT & CORRUPT PRACTICES ACT. 7

In addition, petitioner in his reply 8 invokes this Court's decision in Uy vs.

Sandiganbayan, 9 where it was held that the jurisdiction of the Ombudsman was limited
to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and
higher. As petitioner's position was purportedly not classified as Grade 27 or higher, the
Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Court's decision in Uy, we held that "it is
the prosecutor, not the Ombudsman, who has the authority to file the corresponding
information/s against petitioner in the regional trial court. The Ombudsman exercises
prosecutorial powers only in cases cognizable by the Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the
State and regular provincial and city prosecutors under the Department of
Justice to have control over prosecution of cases falling within the jurisdiction
of the regular courts. The investigation and prosecutorial powers of the
Ombudsman relate to cases rightfully falling within the jurisdiction of the
Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the
Functional and Structural Organization of the Office of the Ombudsman, and
for other purposes") which vests upon the Ombudsman "primary jurisdiction
over cases cognizable by the Sandiganbayan . . ." And this is further buttressed
by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special
Prosecutor shall have the power to "conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus,
repeated references to the Sandiganbayan's jurisdiction clearly serve to limit the
Ombudsman's and Special Prosecutor's authority to cases cognizable by the
Sandiganbayan. [Emphasis in the original.]

The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by
the Ombudsman in the same case, the Court set aside the foregoing pronouncement in its
Resolution dated March 20, 2001. The Court explained the rationale for this reversal:

The power to investigate and to prosecute granted by law to the Ombudsman is

plenary and unqualified. It pertains to any act or omission of any public officer
or employee when such act or omission appears to be illegal, unjust, improper
or inefficient. The law does not make a distinction between cases cognizable by
the Sandiganbayan and those cognizable by regular courts. It has been held that
the clause "any illegal act or omission of any public official" is broad enough to
embrace any crime committed by a public officer or employee.
SIDEaA

The reference made by RA 6770 to cases cognizable by the Sandiganbayan,

particularly in Section 15(1) giving the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation and prosecute
criminal cases within the jurisdiction of the Sandiganbayan, should not be
construed as confining the scope of the investigatory and prosecutory power of
the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman "to take over, at any stage, from any investigatory
agency of the government, the investigation of such cases." The grant of this
authority does not necessarily imply the exclusion from its jurisdiction of cases
involving public officers and employees by other courts. The exercise by the
Ombudsman of his primary jurisdiction over cases cognizable by the
Sandiganbayan is not incompatible with the discharge of his duty to investigate
and prosecute other offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and employees
during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be
equated with the limited authority of the Special Prosecutor under Section 11 of
RA 6770. The Office of the Special Prosecutor is merely a component of the
Office of the Ombudsman and may only act under the supervision and control
and upon authority of the Ombudsman. Its power to conduct preliminary
investigation and to prosecute is limited to criminal cases within the jurisdiction
of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to these types of cases.
The Ombudsman is mandated by law to act on all complaints against officers
and employees of the government and to enforce their administrative, civil and
criminal liability in every case where the evidence warrants. To carry out this
duty, the law allows him to utilize the personnel of his office and/or designate
any fiscal, state prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and prosecution of
certain cases. Those designated or deputized to assist him work under his
supervision and control. The law likewise allows him to direct the Special

Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in

accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one
of the most important functions of the Ombudsman. In passing RA 6770, the
Congress deliberately endowed the Ombudsman with such power to make him a
more active and effective agent of the people in ensuring accountability in
public office. A review of the development of our Ombudsman law reveals this
intent. [Emphasis in the original.]

Having disposed of this contention, we proceed to the principal grounds upon which
petitioner relies. We first address the argument that petitioner, as Chair of the NCC, was
not a public officer.
SAaTHc

The Constitution 10 describes the Ombudsman and his Deputies as "protectors of the
people," who "shall act promptly on complaints filed in any form or manner against
public officials or employees of the government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations." Among
the awesome powers, functions, and duties vested by the Constitution 11 upon the Office
of the Ombudsman is to "[i]nvestigate . . . any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient."
The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770,
otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of said law
respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the
people shall act promptly on complaints filed in any form or manner against
officers or employees of the Government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations, and enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to promote efficient service by
the Government to the people.
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall
have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act
or omission of any public officer or employee, office or agency, when such act
or omission appears to be illegal unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
this primary jurisdiction, it may take over, at any stage, from any investigatory
agency of Government, the investigation of such cases;

xxx xxx xxx.

The coverage of the law appears to be limited only by Section 16, in relation to Section
13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance and non-feasance that have been committed by any
officer or employee as mentioned in Section 13 hereof, during his tenure of
office.

In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and
non-feasance by a public officer or employee of the government, or of any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations. 12
SHECcD

Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public
officers are. A definition of public officers cited in jurisprudence 13 is that provided by
Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by law, by
which, for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the
public. The individual so invested is a public officer. 14

The characteristics of a public office, according to Mechem, include the delegation of

sovereign functions, its creation by law and not by contract, an oath, salary, continuance
of the position, scope of duties, and the designation of the position as an office. 15
Petitioner submits that some of these characteristics are not present in the position of
NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he
purportedly did not receive any compensation; and (3) continuance, the tenure of the
NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign functions of
government as "[t]he most important characteristic" in determining whether a position is
a public office or not.
The most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office involves
a delegation to the individual of some of the sovereign functions of government,
to be exercised by him for the benefit of the public; that some portion of the
sovereignty of the country, either legislative, executive or judicial, attaches, for

the time being, to be exercised for the public benefit. Unless the powers
conferred are of this nature, the individual is not a public officer. 16

Did E.O. 128 delegate the NCC with some of the sovereign functions of government?
Certainly, the law did not delegate upon the NCC functions that can be described as
legislative or judicial. May the functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The executive power "is generally
defined as the power to enforce and administer the laws. It is the power of carrying the
laws into practical operation and enforcing their due observance." 17 The executive
function, therefore, concerns the implementation of the policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts,
Culture, and Sports) thereof:
aDcTHE

SEC. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nation's historical and cultural heritage
and resources, as well as artistic creations.

In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for
the National Centennial Celebrations in 1998:
WHEREAS, the birth of the Republic of the Philippines is to be celebrated in
1998, and the centennial presents an important vehicle for fostering nationhood
and a strong sense of Filipino identity;
WHEREAS, the centennial can effectively showcase Filipino heritage and
thereby strengthen Filipino values;
WHEREAS, the success of the Centennial Celebrations may be insured only
through long-range planning and continuous developmental programming;
WHEREAS, the active participation of the private sector in all areas of special
expertise and capability, particularly in communication and information
dissemination, is necessary for long-range planning and continuous
developmental programming;
WHEREAS, there is a need to create a body which shall initiate and undertake
the primary task of harnessing the multisectoral components from the business,
cultural, and business sectors to serve as effective instruments from the
launching and overseeing of this long-term project;
xxx xxx xxx.

E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in
1998, cited the "need to strengthen the said Committee to ensure a more coordinated and
synchronized celebrations of the Philippine Centennial and wider participation from the
government and non-government or private organizations." It also referred to the "need to
rationalize the relevance of historical links with other countries."
The NCC was precisely created to execute the foregoing policies and objectives, to carry
them into effect. Thus, the Commission was vested with the following functions:
(a) To undertake the overall study, conceptualization, formulation and
implementation of programs and projects on the utilization of
culture, arts, literature and media as vehicles for history, economic
endeavors, and reinvigorating the spirit of national unity and sense
of accomplishment in every Filipino in the context of the
Centennial Celebrations. In this regard, it shall include a
Philippine National Exposition '98 within Metro Manila, the
original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to
awareness and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of
all information about the plans and events for the Centennial
Celebrations;
(d) To

constitute working groups which shall

implementation of the programs and projects;

undertake

the

(e) To prioritize the refurbishment of historical sites and structures

nationwide. In this regard, the Commission shall formulate
schemes (e.g. lease-maintained-and-transfer, build-operatetransfer, and similar arrangements) to ensure the preservation and
maintenance of the historical sites and structures;
(f) To call upon any government agency or instrumentality and
corporation, and to invite private individuals and organizations to
assist it in the performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs,
projects, activities as well as the status of the preparations for the
Celebration. 18

It bears noting the President, upon whom the executive power is vested, 19 created the
NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:
SEC. 2. Executive Orders. Acts of the President providing for rules of a
general or permanent character in implementation or execution of constitutional
or statutory powers shall be promulgated in executive orders. [Italics ours.]

Furthermore, the NCC was not without a role in the country's economic development,
especially in Central Luzon. Petitioner himself admitted as much in the oral arguments
before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, don't you agree
that the task of the centennial commission was also to focus on the long term
over all socio economic development of the zone and Central Luzon by
attracting investors in the area because of the eruption of Mt. Pinatubo.

FORMER VICE PRESIDENT SALVADOR H. LAUREL:

I am glad Your Honor touched on that because that is something I wanted to
touch on by lack of material time I could not but that is a very important point.
When I was made Chairman I wanted the Expo to be in Batangas because I am
a Batangeo but President Ramos said Mr. Vice President the Central Luzon is
suffering, suffering because of the eruption of Mt. Pinatubo let us try to catalize
[sic] economic recovery in that area by putting this Expo in Clark Field and so
it was done I agreed and Your Honor if I may also mention we wanted to
generate employment aside from attracting business investments and
employment. And the Estrada administration decided to junk this project there
48, 40 thousand people who lost job, they were employed in Expo. And our
target was to provide 75 thousand jobs. It would have really calibrated,
accelerated the development of Central Luzon. Now, I think they are going back
to that because they had the airport and there are plan to revive the Expo site
into key park which was the original plan.

There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy. 20
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla 21 that the holding by a
municipality of a town fiesta is a proprietary rather than a governmental function.
Petitioner argues that the "holding of a nationwide celebration which marked the nation's
100th birthday may be likened to a national fiesta which involved only the exercise of the
national government's proprietary function." 22 In Torio, we held:

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative

Code] simply gives authority to the municipality to [celebrate] a yearly fiesta
but it does not impose upon it a duty to observe one. Holding a fiesta even if the
purpose is to commemorate a religious or historical event of the town is in
essence an act for the special benefit of the community and not for the general
welfare of the public performed in pursuance of a policy of the state. The mere
fact that the celebration, as claimed, was not to secure profit or gain but merely
to provide entertainment to the town inhabitants is not a conclusive test. For
instance, the maintenance of parks is not a source of income for the town,
nonetheless it is [a] private undertaking as distinguished from the maintenance
of public schools, jails, and the like which are for public service.

As stated earlier, there can be no hard and fast rule for purposes of determining
the true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. The
basic element, however beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private or propriety
in character. Easily, no governmental or public policy of the state is involved in
the celebration of a town fiesta.

Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the
Court cautioned that "there can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive." Thus, in
footnote 15 of Torio, the Court, citing an American case, illustrated how the "surrounding
circumstances plus the political, social, and cultural backgrounds" could produce a
conclusion different from that in Torio:
We came across an interesting case which shows that surrounding
circumstances plus the political, social, and cultural backgrounds may have a
decisive bearing on this question. The case of Pope v. City of New Haven, et al.
was an action to recover damages for personal injuries caused during a Fourth
of July fireworks display resulting in the death of a bystander alleged to have
been caused by defendants' negligence. The defendants demurred to the
complaint invoking the defense that the city was engaged in the performance of
a public governmental duty from which it received no pecuniary benefit and for
negligence in the performance of which no statutory liability is imposed. This
demurrer was sustained by the Superior Court of New Haven Country. Plaintiff
sought to amend his complaint to allege that the celebration was for the
corporate advantage of the city. This was denied. In affirming the order, the
Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance
of purely public governmental duties, unless made liable by statute. . . .

A municipality corporation, which under permissive authority of its charter or

of statute, conducted a public Fourth of July celebration, including a display of
fireworks, and sent up a bomb intended to explode in the air, but which failed to
explode until it reached the ground, and then killed a spectator, was engaged in
the performance of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is made a public holiday,
called Independence Day, by our statutes. All or nearly all of the other states
have similar statutes. While there is no United States statute making a similar
provision, the different departments of the government recognize, and have
recognized since the government was established, July 4th as a national holiday.
Throughout the country it has been recognized and celebrated as such. These
celebrations, calculated to entertain and instruct the people generally and to
arouse and stimulate patriotic sentiments and love of country, frequently take
the form of literary exercises consisting of patriotic speeches and the reading of
the Constitution, accompanied by a musical program including patriotic air
sometimes preceded by the firing of cannon and followed by fireworks. That
such celebrations are of advantage to the general public and their promotion a
proper subject of legislation can hardly be questioned. . . . "

Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the liberation of
our people from oppression by a foreign power. 1998 marked 100 years of independence
and sovereignty as one united nation. The Celebrations was an occasion to reflect upon
our history and reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle for
fostering nationhood and a strong sense of Filipino identity," an opportunity to "showcase
Filipino heritage and thereby strengthen Filipino values." The significance of the
Celebrations could not have been lost on petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to
rekindle the love for freedom, love for country, that is the over-all goal that has
to make everybody feel proud that he is a Filipino, proud of our history, proud
of what our forefather did in their time. . . . .

Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of little
consequence. A salary is a usual but not a necessary criterion for determining the nature
of the position. It is not conclusive. The salary is a mere incident and forms no part of the

office. Where a salary or fees is annexed, the office is provided for it is a naked or
honorary office, and is supposed to be accepted merely for the public good. 23 Hence, the
office of petitioner as NCC Chair may be characterized as an honorary office, as opposed
to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees
are attached. 24 But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body"
make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and
certainly a position which is merely temporary and local cannot ordinarily be
considered an office. "But," says Chief Justice Marshall, "if a duty be a
continuing one, which is defined by rules prescribed by the government and not
by contract, which an individual is appointed by government to perform, who
enters on the duties pertaining to his station without any contract defining them,
if those duties continue though the person be changed, it seems very difficult
to distinguish such a charge or employment from an office of the person who
performs the duties from an officer."
At the same time, however, this element of continuance can not be considered
as indispensable, for, if the other elements are present "it can make no
difference," says Pearson, C.J., "whether there be but one act or a series of acts
to be done, whether the office expires as soon as the one act is done, or is to
be held for years or during good behavior." 25

Our conclusion that petitioner is a public officer finds support in In Re Corliss. 26 There
the Supreme Court of Rhode Island ruled that the office of Commissioner of the United
States Centennial Commission is an "office of trust" as to disqualify its holder as elector
of the United States President and Vice-President. (Under Article II of the United States
Constitution, a person holding an office of trust or profit under the United States is
disqualified from being appointed an elector.)
. . . . We think a Commissioner of the United States Centennial Commission
holds an office of trust under the United States, and that he is therefore
disqualified for the office of elector of President and Vice-President of the
United States.
The commission was created under a statute of the United States approved
March 3, 1871. That statute provides for the holding of an exhibition of
American and foreign arts, products, and manufactures, "under the auspices of
the government of the United States," and for the constitution of a commission,
to consist of more than one delegate from each State and from each Territory of
the United States, "whose functions shall continue until close of the exhibition,"
and "whose duty it shall be to prepare and superintend the execution of the plan
for holding the exhibition." Under the statute the commissioners are appointed

by the President of the United States, on the nomination of the governor of the
States and Territories respectively. Various duties were imposed upon the
commission, and under the statute provision was to be made for it to have
exclusive control of the exhibit before the President should announce, by
proclamation, the date and place of opening and holding the exhibition. By an
act of Congress approved June 1st, 1872, the duties and functions of the
commission were further increased and defined. That act created a corporation,
called "The Centennial Board of Finance," to cooperate with the commission
and to raise and disburse the funds. It was to be organized under the direction of
the commission. The seventh section of the act provides "that the grounds for
exhibition shall be prepared and the buildings erected by the corporation, in
accordance with plans which shall have been adopted by the United States
Centennial Commission; and the rules and regulations of said corporation,
governing rates for entrance and admission fees, or otherwise affecting the
rights, privileges, or interests of the exhibitors, or of the public, shall be fixed
and established by the United States Centennial Commission; and no grant
conferring rights or privileges of any description connected with said grounds or
buildings, or relating to said exhibition or celebration, shall be made without the
consent of the United States Centennial Commission, and said commission shall
have power to control, change, or revoke all such grants, and shall appoint all
judges and examiners and award all premiums." The tenth section of the act
provides that "it shall be the duty of the United States Centennial Commission
to supervise the closing up of the affairs of said corporation, to audit its
accounts, and submit in a report to the President of the United States the
financial results of the centennial exhibition."

It is apparent from this statement, which is but partial, that the duties and
functions of the commission were various, delicate, and important; that they
could be successfully performed only by men of large experience and
knowledge of affairs; and that they were not merely subordinate and
provisional, but in the highest degree authoritative, discretionary, and final in
their character. We think that persons performing such duties and exercising
such functions, in pursuance of statutory direction and authority, are not to be
regarded as mere employees, agents, or committee men, but that they are,
properly speaking, officers, and that the places which they hold are offices. It
appears, moreover, that they were originally regarded as officers by Congress;
for the act under which they were appointed declares, Section 7, that "no
compensation for services shall be paid to the commissioners or other officers,
provided for in this act, from the treasury of the United States." The only other
officers provided for were the "alternates" appointed to serve as commissioners
when the commissioners were unable to attend.

Having arrived at the conclusion that the NCC performs executive functions and is,
therefore, a public office, we need no longer delve at length on the issue of whether

Expocorp is a private or a public corporation. Even assuming that Expocorp is a private

corporation, petitioner's position as Chief Executive Officer (CEO) of Expocorp arose
from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of
Expocorp must be viewed in the light of his powers and functions as NCC Chair. 27
Finally, it is contended that since petitioner supposedly did not receive any compensation
for his services as NCC or Expocorp Chair, he is not a public officer as defined in
Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore,
beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which
reads:
SEC. 3. Corrupt practices of public officers. In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government, or giving
any private party any unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations
charged with the grant of licenses or permits or other concessions.

A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows:
SEC. 2. Definition of terms. As used in this Act, the term
xxx xxx xxx
(b) "Public officer" includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exemption
service receiving compensation, even nominal, from the government as defined
in the preceding paragraph. [Italics supplied.]

It is clear from Section 2 (b), above, that the definition of a "public officer" is expressly
limited to the application of R.A. No. 3019. Said definition does not apply for purposes
of determining the Ombudsman's jurisdiction, as defined by the Constitution and the
Ombudsman Act of 1989.

Moreover, the question of whether petitioner is a public officer under the Anti-Graft and
Corrupt Practices Act involves the appreciation of evidence and interpretation of law,
matters that are best resolved at trial.
To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition is
not restrictive. 28 The Anti-Graft and Corrupt Practices Act is just one of several laws
that define "public officers." Article 203 of the Revised Penal Code, for example,
provides that a public officer is:
. . . any person who, by direct provision of law, popular election or appointment
by competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its
branches public duties as an employee, agent or subordinate official, of any rank
or class.

Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987, 29

on the other hand, states:
Officer as distinguished from "clerk" or "employee," refers to a person whose
duties not being of a clerical or manual nature, involves the exercise of
discretion in the performance of the functions of the government. When used
with reference to a person having authority to do a particular act or perform a
particular person in the exercise of governmental power, "officer" includes any
government employee, agent or body having authority to do the act or exercise
that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees), one may be
considered a "public official" whether or not one receives compensation, thus:
"Public Officials" include elective and appointive officials and employees,
permanent or temporary, whether in the career or non-career service including
military and police personnel, whether or not they receive compensation,
regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
"compensation," which is not defined by said law, has many meanings.
Under particular circumstances, "compensation" has been held to include
allowance for personal expenses, commissions, expenses, fees, an honorarium,
mileage or traveling expenses, payments for services, restitution or a balancing
of accounts, salary, and wages. 30

How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019, to
be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did
not receive any salary, the records do not reveal if he received any allowance, fee,
honorarium, or some other form of compensation. Notably, under the by-laws of
Expocorp, the CEO is entitled to per diems and compensation. 31 Would such fact bear
any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we preempt
the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the
Court's Resolution dated September 24, 2001 is hereby LIFTED.
SO ORDERED.
Puno and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., took no part, due to close relations to a party.
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(Laurel v. Desierto, G.R. No. 145368, April 12, 2002)