THE NACIONALISTA PARTY, MARCELO ADDURU, DOMOCAO

ALONTO, PEDRO C. HERNAEZ, TRINIDAD F. LEGARDA, ALEJO

MABANAG, CLARO M. RECTO, JOSE O. VERA, and JOSE
VELOSO Petitioners, vs. VICENTE DE VERA, as Chairman of the
Commission on Elections, Respondent.

This is the special action for prohibition filed by the Nacionalista Party and its
official candidates for senators against Vicente de Vera, Chairman of the
Commission on Elections, to enjoin him from sitting or taking part in the
deliberations of said Commission in connection with the elections of November 8,
1949, on two grounds: (1) that he is the father of Teodoro de Vera one of the
candidates of the Liberal Party for the position of senator in the last election and, for
that reason, he is disqualified from acting on all matters connected with said
elections; and (2) that his appointment as Chairman of the Commission on Elections
is a violation of the Constitution and, therefore, it is void ab
initio.chanroblesvirtualawlibrary chanrobles virtual law library
Ichanrobles virtual law library
Rule 126, section 1, of the Rules of Court, invoked by petitioners to disqualify the
respondent, is as follows:
SECTION 1. Disqualification of judges. - No judge or judicial officer shall sit in any
case in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the sixth degree
of consanguinity or affinity , computed according to the rules of the civil law, or in
which he has been executor, administrator, guardian, trustee or counsel, or in which
he has presided in any inferior court when his ruling or decision is the subject of
review, without the written consent of all parties in interest, signed by them and
entered upon the record.
Upon the other hand, section 2 of said Rule 126, providing the procedure to be
followed in the disqualification of judges or judicial officers, is as follows:
SEC. 2. Objection that judge disqualified, how made and effect. - If it be claimed
that an official is disqualified from sitting as above provided, the party objecting to

his competency may, in writing, file with the official his objection, stating the
grounds therefor, and the official shall thereupon proceed with the trial , or withdraw
therefrom, in accordance with his determination of the question of his
disqualification. His decision shall be forthwith made in writing and filed with the
other papers in the case, but no appeal or stay shall be allowed from, or by reason of,
his decision in favor of his own competency, until after final judgment in the case.
Under this provision, the party seeking the disqualification of a judge officer must,
in writing, file with said official his objection, stating the grounds therefor, and if the
objection is denied, the remedy is an appeal to be taken after final judgment is
rendered in the case. For this reason, the petition for prohibition is
improper.chanroblesvirtualawlibrary chanrobles virtual law library
This is on the assumption that the Rules of Court are applicable to the Commission
on Elections, but in truth they are not. Section 13, Article VIII of the Constitution
granted to the Supreme Court "the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said
rules shall be uniform for all courts of the same grade and shall not diminish,
increase, or modify substantive rights," Courts, as referred to in this Constitutional
provision, are those bodies vested with the judicial power by Article VIII, section 1
of the Constitution, and they do not include the Commission on Elections, which, in
a separate Article ( X) of the Constitution, is created as an independent
administrative body with the "exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections," with the power to
decide "all administrative questions affecting elections save those involving the right
to vote." Under the Constitution the Supreme Court has no general powers of
supervision over the Commission on Elections except those specifically granted by
the Constitution, that is, to review the decisions, orders and rulings of the
Commission which may be brought up properly before the Supreme
Court.chanroblesvirtualawlibrary chanrobles virtual law library
If it is true as suggested that the Rules of the Court have been adopted in a
suppletory character by the Commission on Elections, such adoption can have no
reference but to those rules that are necessary for the functioning of the Commission
and which are not inconsistent with the nature of its proceedings, and therefore it
does not include the rules of disqualification of judicial officers. the Commission
has
no
authority
to
adopt
or
promulgate
rules
of
such
nature.chanroblesvirtualawlibrary chanrobles virtual law library

We hold, therefore, that the Rules of the Court are not applicable to the Commission
on Elections, and consequently whether or not a Commissioner may or not act on
matters in which a son of his is directly interested, is a question of decorum and
ethics for him exclusively to decide. The silence of the Constitution in that regard
may well be interpreted to mean that all prohibition to that effect is unnecessary
because the persons to be selected for such delicate positions in the Commission
should be of such high morality as to exclude all probability of transgression of
simple rules of decency or good taste.chanroblesvirtualawlibrary chanrobles virtual
law library
In the instant case, respondent, in his answer, avers that he has disqualified himself
from acting as Chairman of the Commission in all matters in which his son has a
direct interest. There is no showing that this averment is not
true.chanroblesvirtualawlibrary chanrobles virtual law library
IIchanrobles virtual law library
The second ground invoked by the petitioners is that respondent's appointment to the
Chairmanship of the Commission on Elections is void ab initio because he was
already a member of the Commission when he was appointed its chairman and such
appointment is in fact a reappointment, which is expressly prohibited by the
Constitution. In this jurisdiction the writ of prohibition cannot be availed of as a
substitute for quo warranto. The ground invoked by the petitioners would be proper
in quo warranto proceedings but not in a petition for prohibition. The writ of
prohibition has been allowed in the Philippines, not only against courts and tribunals
in order to keep them within the limits of their own jurisdiction and to prevent them
from encroaching upon the jurisdiction of other tribunals, but also, in appropriate
cases, against an officer or person whose acts are without or in excess of his
authority. Thus, a writ of prohibition has been issued against the Director of Posts
who attempted to do the act that was offensive to the Constitution (Aglipay vs. Ruiz,
64 Phil., 201), or against the Commissioner of Civil Service who attempted to
conduct an investigation that was violative of the Constitution (Planas vs. Gil, G.R.
No. 46440, Jan. 18,1939, 37 Off. Gaz., 1228), 1 or against the City of Manila, which
attempted to enforce an ordinance which was null and void (Rodriguez vs. city of
Manila, 46 Phil., 171). but when the petition for prohibition seeks to inquire into
person's title to an office which he is holding under the color of right, it has been
denied upon the ground that quo warranto is the proper remedy. Thus, in Takyo v.
Capistrano, 53 Phil., 866, a petition for prohibition was filed against Judge
Capistrano to enjoined him from taking cognizance of certain civil and criminal
cases on the ground that he was more than 65 years of age and under the law then in
force he had ceased to be a judge. This Court held that Judge Capistrano was a

judge de facto and the remedy prayed for could not be granted for the reason that :
"The rightful authority of a judge, in full exercise of his public judicial functions,
cannot be questioned by any merely private suitor, nor by any other, excepting in the
form especially provided by law. A judge de facto assumes the exercise of a part of
the prerogative of sovereignty and the legality of that assumption is open to the
attack of the sovereign power alone. Accordingly, it is well established principle,
dating from the earliest period and repeatedly confirmed by an unbroken current of
decisions, that the official acts of a de facto judge are just as valid for all purposes as
those of a de jure judge, so far as the public or third persons who are interested
therein are concerned. The rule is the same in civil and criminal cases. The principle
is one founded in policy and convenience, for the right of no one claiming a title or
interest under or through the proceedings of an officer having an apparent authority
to act would be safe, if it were necessary in every case to examine the legality of the
title or interest of such person were held to be invalidated by some accidental defect
or flaw in the appointment, election or qualification of such officer, or in the rights
of those from whom his appointment or election emanated; nor could the supremacy
of the laws be maintained , or their execution enforced if the acts of the judge having
a colorable, but not a legal title, were to be deemed invalid. As in the case of judges
of courts of record, the acts of a justice de facto cannot be called in question in any
suit to which he is not a party. The official acts of a de facto justice cannot be
attacked collaterally. An exception to the general rule that the title of a person
assuming to act as judge cannot be questioned in a suit before him is generally
recognized in the case of a special judge on the proceedings before him, and that the
judgment will be reversed on appeal, where proper exceptions are taken, if the
person assuming to act as a special judge is not a judge de jure. The title of a de
facto officer cannot be indirectly questioned in a proceeding to obtain the writ of a
prohibition to prevent him from doing an official act, nor in a suit to enjoin the
collection of a judgment rendered by him. Having at least colorable right to the
office his title can be determined only in a quo warranto proceeding or information
in the nature of a quo warranto at suit of the sovereign." (15 R.C. L., pp. 519521.)chanrobles virtual law library
It is unnecessary to say that the exception as to a special judge is not applicable to
respondent
who
is
not
a
special
Commissioner.chanroblesvirtualawlibrary chanrobles virtual law library
In the United States, the prevailing rule is that "the writ of prohibition, even when
directed against persons acting as judges or other judicial officers, cannot be treated
as a substitute for quo warranto or be rightfully called upon to perform any of the
functions of that writ. If there is a court, judge or officer de facto, the title to the
office and the right to act cannot be questioned by prohibition. if an intruder takes

possession of a judicial office, the person dispossessed cannot obtain relief through a
writ of prohibition commanding the alleged intruder to cease from performing
judicial acts, since in its very nature prohibition is an improper proceeding by which
to determine the title to an office. And the writ of prohibition will not issue against a
judge de facto on the ground that the statute purporting to confer authority upon the
governor to appoint him is unconstitutional. (42 Amer. Jur., 156.)chanrobles virtual
law library
We hold, therefore, that quo warranto and not prohibition is the proper remedy to
inquire into validity of respondent's appointment as Chairman of the Commission on
Elections. And we would stop here were it not because there is apparently some
divergence of opinion as to the true import of the constitutional provisions
concerning the appointment of Commissioners of Elections, and some members of
the Court have decided to state their individual opinions on the matter. Under these
circumstances, the majority deems is advisable to also express its views:chanrobles
virtual law library
Section 1, Article X of the Constitution reads as follows:
There shall be an independent Commission on Elections composed of a Chairman
and two other Members to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a term of nine years and
may not be reappointed. Of the Members of the Commission first appointed, one
shall hold office for nine years, another for six years, and the third for three years.
The Chairman and the other Members of the Commission on Elections may be
removed from office only by impeachment in the manner provided in this
Constitution.
Let us analyze the first two sentences contained in this provision, which concern the
appointment of Commissioners of Elections. The first sentenced reads: "There shall
be an independent Commission on Elections composed of a Chairman and two other
Members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be
reappointed." (Emphasis ours.) It must be noticed from this provision that the
prohibition against reappointment comes as a continuation of the requirement that
the Commissioners may not reappointed only after they have held office for nine
years. Reappointment is not prohibited when a Commissioner has held office only
for say, three or six years, provided his term will not exceed nine years in
all.chanroblesvirtualawlibrary chanrobles virtual law library

Upon the other hand, the second sentence provides that "Of the Members of the
Commission first appointed, one shall hold office for nine years, another for six
years, and the third for three years." The evident purpose of this provision is to place
in the Commission a new member every reappointment that is to be made in favor of
a Commissioner who was held office for less than nine years. It may then be said as
a fair interpretation of the Constitution that appointment may be made in favor of the
Commissioner who was held office for less than nine years, provided it does not
preclude the appointment of a new member every three years, and provided further
that
the
reappointee's
term
does
not
exceed
nine
years
in
all.chanroblesvirtualawlibrary chanrobles virtual law library
In order to carry out the purpose of the Constitution of placing in the Commission a
new member every three years, it is essential that after the First Commissioners have
been appointed, every subsequent appointment shall so fix the appointee's term of
office as to maintain the three years difference between the dates of expiration of the
respective terms of the incumbents. And this can be done if after the appointments of
the first three Commissioners, the successor of any one of them who ceases prior to
the expiration of his term, be appointed only for the unexpired portion of that term.
Of course, when a Commissioner ceases because of the expiration of his term his
successor must be appointed for a term of nine years; but when he ceases on other
grounds prior to the expiration of his term, his successor must be appointed only for
the unexpired portion of that term, otherwise the appointment would be offensive to
the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
In July, 1945 three Commissioners were appointed: Jose Lopez Vito as Chairman,
for a term of nine years; Francisco Enage, as Member, for a term of six years;
Vicente de Vera, as Member, for a term of three years. Apparently, these were
considered as the first Commissioners appointed under the Constitution. Under the
interpretation above stated, Vicente de Vera cannot be reappointed to succeed
himself upon the expiration of his term of three years because that would preclude
the appointment of a new member after such period of three years and would,
furthermore, increase his term to twelve years, since, as above indicated, upon the
expiration of his term his successor must be appointed for nine years. But the
chairmanship of the Commission became vacant in 1947, by the death of Chairman
Jose Lopez Vito, and Commissioner Vicente de Vera was promoted to occupy this
vacancy for the unexpired term of the former incumbent. There is nothing in that
promotion that is offensive to the Constitution for it does not increase De Vera's term
of office to more than nine years nor does it preclude the appointment of a new
member upon the expiration of de Vera's first term of three
years.chanroblesvirtualawlibrary chanrobles virtual law library

It is maintained that the prohibition against the reappointment applies not only to the
Commissioner appointed for none years, but also to those appointed for a shorter
period, because the reason underlying the prohibition is equally applicable to them,
the prohibition being, according to this theory, intended to prevent the
Commissioners from being exposed to improper influences that are apt to be brought
to bear upon those aspiring for reappointment. It is, however, doubtful whether this
apparently persuasive reasoning is fully justified and supported by the wording of
the Constitution. As above stated, the language of the Constitution does not warrant
the interpretation that the prohibition against reappointment applies not only to
Commissioners who have held office for nine years but also to those appointed for a
lesser term. Upon the other hand, reappointment is not the only interest that may
affect his independence. And it is perhaps useless to prohibit reappointment to
higher and better paid positions is not at the same time prohibited. This, apart from
the consideration that reappointment is not altogether disastrous. A Commissioner,
hopeful of reappointment may strive to do good. Whereas, without that hope or
other hope of material reward, his enthusiasm may decline as the end of his term
approaches and may he even lean to abuses if there is no higher restrain in his moral
character. Moral character is no doubt the most effective safeguard of independence.
With moral integrity, a commissioner will be independent with or without possibility
of reappointment. Without moral integrity, he will not be independent no matter how
emphatic the prohibition on reappointment might be. That prohibition is sound only
as to a Commissioner who has held office for nine years, because after such a long
period of so heavy and taxing work, it is but fair that the venerable Commissioner be
given either a rest well earned or another honorable position for a
change.chanroblesvirtualawlibrary chanrobles virtual law library
For all the foregoing considerations, the petition is denied with costs against
petitioners.

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. HONORABLE DOMINGO

IMPERIAL and HONORABLE RODRIGO D. PEREZ, Respondents.

This is a quo warranto proceeding instituted by the Solicitor General against Honorable
Domingo Imperial and Honorable Rodrigo Perez, to test the legality of their continuance
in office as Chairman and Member, respectively, of the Commission on
Elections.chanroblesvirtualawlibrary chanrobles virtual law library
According to the Solicitor General, the first commissioners of Elections were duly
appointed and qualified on July 12, 1945, with the following terms of office:
Hon. Jose Lopez Vito, Chairman, for 9 years, expiring on July 12, 1954.
Hon. Francisco Enage, Member, for 6 years, expiring on July 12, 1951.
Hon. Vicente Vera, Member, for 3 years, expiring on July 12, 1948;
that upon the death of Chairman Jose Lopez Vito in May, 1947, Member Vicente de Vera
was promoted Chairman by appointment dated May 26, 1947; that in accordance with the
ruling of this Court in Nacionalista Party vs. Vera, 47 Off. Gaz., 2375, and Nacionalista
Party vs. Felix Angelo Bautista, 47 Off. Gaz., 2356, the term of office of Chairman De
Vera would have expired on July 12, 1954, that is, the date when the term of office of the
first Chairman, Honorable Jose Lopez Vito, would have expired; that Chairman Vicente
de Vera died in August, 1951, before the expiration of the maximum term of nine years
(on July 12, 1954) of the first Chairman of the Commission; that on August 11, 1951, the
respondent Honorable Domingo Imperial was appointed Chairman to succeed Honorable
Vicente de Vera; that while the appointment of the respondent Honorable Imperial
provided that he was to serve "for a term expiring July 12, 1960", the term for which he
could legally serve as Chairman legally expired on July 12, 1954, that is, the expiration of
the nine-year term for which the first Chairman, Honorable Jose Lopez Vito, was
appointed; that the respondent Honorable Rodrigo Perez was appointed Member of the
Commission on December 8, 1949, for "a term of nine years expiring on November 24,
1958", vice Honorable Francisco Enage, who was retired on November, 1949; that the
term of office of respondent Perez legally expired on July 12, 1951, the expiration of the
term of six years for which Commissioner Enage, his predecessor, was appointed.
Wherefore, the Solicitor General concludes that the respondents Commissioners Imperial
and Perez have ceased to have any legal or valid title to the positions of Chairman and
Member, respectively, of the Commission on Elections, and that therefore, their positions
should be declared vacant.chanroblesvirtualawlibrary chanrobles virtual law library

The respondents filed separate answer to the petition for quo warranto, both of which
pray for the dismissal of the petition.chanroblesvirtualawlibrary chanrobles virtual law
library
The defense of respondent Honorable Domingo Imperial is substantially that Honorable
Jose Lopez Vito was first appointed Chairman of the Commission on Elections on May
12, 1941, for a term of nine years expiring on May 12, 1950; that when Commissioner
Lopez Vito was again appointed Chairman on July 12, 1945, his nine-year, term of office
under this second appointment should not be reckoned from the date thereof, that is, July
12, 1945, but from the date of his first appointment in 1941, so that the term under his
second appointment expired on May 12, 1950; that respondent Imperial having been
appointed after the expiration of Chairman Lopez Vito's full term of nine years in 1950,
he (respondent Imperial) should serve office for a full term of nine years, ending only on
August 10, 1960. Respondent Imperial stresses the unconstitutionality of Chairman
Lopez Vito's second appointment to serve up to July 12, 1954, upon the ground that under
the Constitution, he (Chairman Lopez Vito) could neither be appointed for more than nine
years nor be allowed to succeed himself.chanroblesvirtualawlibrary chanrobles virtual
law library
The other respondent, Honorable Rodrigo Perez, alleges that since Chairman Lopez Vito
was the first to be appointed under the Constitution on May 13, 1941, the terms of office
of all the Commissioners on Election should be reckoned from that date, May 13, 1941,
to maintain the three-year difference between the dates of expiration of their respective
terms as provided for by the Constitution; that the term of office of Member Francisco
Enage (his predecessor) should therefore be considered as having started on May 13,
1941, and since Enage was appointed only for six years, his term of office expired on
May 12, 1947; and that since respondent Perez was appointed (on December 8, 1949)
after Commissioner Enage's six-year term of office had already expired, he should serve
for a full term of nine years from the expiration of Enage's term of office on May 12,
1947; hence, his own term of office would expire only on May 12, 1956. Respondent
Perez argues that if the computation of the Solicitor General were to be followed, that is,
that Commissioner Enage's term be counted from July 12, 1945 ending on July 12, 1951,
this term would end at a date very close to the expiration of Commissioner Lopez Vito's
term on May 12, 1950, so there would be only a difference of fourteen months between
the expiration of the terms of office of Commissioners Lopez Vito and Enage, a situation
which is contrary to and violative of the Constitution that prescribes a difference of three
years between the dates of the expiration of the terms of the Members of the
Commission.chanroblesvirtualawlibrary chanrobles virtual law library
The issues now posed demand a re-examination and application of the Constitutional
amendment establishing an independent Commission on Elections (Article X) that
became operative on December 2, 1940, superseding the purely statutory Commission

previously created and organized along the same lines by Commonwealth Act No. 607.
While this Court already had occasion to make pronouncements on the matter in previous
decisions, the same are not considered decisive in view of the divergence of opinions
among the members of the Court at the time said decisions were
rendered.chanroblesvirtualawlibrary chanrobles virtual law library

common date; and (2) that any vacancy due to death, resignation or disability before the
expiration of the term should only be filled only for the unexpired balance of the term.
Without satisfying these conditions, the regularity of the intervals between appointments
would be destroyed, and the evident purpose of the rotation (to prevent that a four-year
administration should appoint more than one permanent and regular commissioner)
would be frustrated.chanroblesvirtualawlibrary chanrobles virtual law library

Section 1, paragraph 1, of Article X of the Constitution reads as follows:

SEC. 1. There shall be an independent Commission on Elections composed of a
Chairman and two other Members to be appointed by the President with the consent of
the Commission on Appointments, who shall hold office for a term of nine years and may
not be reappointed. Of the Members of the Commission first appointed, one shall hold
office for nine years, another for six years, and the third for three years. The Chairman
and the other Members of the Commission on Elections may be removed from office
only by impeachment in the manner provided in this Constitution.
The provision that of the first three commissioners appointed, "one shall hold office for 9
years, another for 6 years, and the third for 3 years," when taken together with the
prescribed term of office for 9 years, without reappointment, evidences a deliberate plan
to have a regular rotation or cycle in the membership of the commission, by having
subsequent members appointable only once every three years. This had already been
indicated in previous opinions of this Court (Nacionalista Party vs. Angelo Bautista, 1 47
Off. Gaz., 2356; Nacionalista Party vs. Vera, 2 47 Off. Gaz., 2375), where it was declared
that "with these periods it was the intention to have one position vacant every three years,
so that no President can appoint more than one Commissioner, thereby preserving and
safe-guarding the independence and impartiality of the Commission" as a body, we may
add, for the impartiality and independence of each individual Commissioner's tenure was
safeguarded by other provisions in the same Article X of the fundamental charter
(removability by impeachment alone, and stability of compensation in sec. 1; disability to
practice any profession and prohibition of conflicting interest in sec. 3)chanrobles virtual
law library
That the rotation of the Commissioner's appointments at regular and fixed intervals of
three years was a deliberate plan is shown by the history of the provision, and by
selection of the fixed term of nine years for all subsequent appointees, since no other term
would give such a result. Initiated under Commonwealth Act No. 607, the rotation plan
was transferred without variation to the Constitution, evidently for the purpose of
preserving it from hasty and irreflexive changes.chanroblesvirtualawlibrary chanrobles
virtual law library
Now, the operation of the rotational plan requires two conditions, both indispensable to
its workability: (1) that the terms of the first three commissioners should start on a

While the general rule is that a public officer's death or other permanent disability creates
a vacancy in the office, so that the successor is entitled to hold for a full term, such rule is
recognized to suffer exception in those cases where the clear intention is to have
vacancies appointments at regular intervals. Thus, in 43 Amer. prudence, sec. 159, p. 18,
it is stated:
. . . In like manner, it has been ruled that the resignation or the removal of an officer
during his term and the election or appointment of a successor do not divide the term or
create a new and distinct one, and that in such a case the successor is filling out his
predecessor's term. It seems the term of office of one elected or appointed to fill a
vacancy in a board of several officers will be held to be for the unexpired term of his
predecessor only, where the clear intent of the creating power is that the entire board
should not go out of office at once, but that different groups should retire at regularly
recurring intervals.(Emphasis supplied).
In State ex rel. Rylands vs. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 LRA 643, the Court,
discussing provisions in the charter of the city of Bridgeport requiring two city
Commissioners to serve for 2 years, and another two to serve for 4 years, said:
. . . The evident intent of section 50 is to secure to the city at all times, so far as possible,
the services of commissioners, half of whom have had the benefit of at least a year's
experience in office, and to divide the membership of each half equally between the
leading political parties. Parmater vs. State, 102 Ind. 90, 93. Such a board had existed in
Bridgeport since 1868. The charter of that year provided for the election of two
commissioners to serve for one year, and two for two years, and for the annual election
thereafter of two to serve for two years, and secured a nonpartisan character to the board
by allowing no one to vote for more than two out of the four, and requiring the election of
deputy commissioners to replace each elected commissioner in case of a vacancy. From
that time until the resignation of the entire board, in December, 1890, its membership had
been annually renewed by the appointment of two commissioners for a term of two years,
each belonging to a different political party from the other. Were the contention of the
defendant well founded, the successors of the four commissioners who resigned in
December, 1890, should have been, and in law were, appointed each for two-year term,
thus totally and forever frustrating the care-fully devised scheme of alternating
succession which had been followed for twenty years. (Cas. Cit., 22 LRA, 669)

The following cases also support the rule:

When the Constitution fixes the duration of a term of office, and at the same time
provides for its being filled at a fixed time occurring periodically, it necessarily follows
that, a casual vacancy occurring during such term of office, necessity must arise for
filling it for the unexpired term; and although the mode of filling such vacancy is
prescribed by the Constitutional, yet the incumbent only holds until the time arrives for
filling the office in the regular mode and at the regular time prescribed by the
Constitution. (Simpson vs. Willard, 14 S. C. 191).chanroblesvirtualawlibrary chanrobles
virtual law library
And in Baker vs. Kirk, 33 Ind. 517, it was held that the term of office of one appointed to
fill a vacancy in one of three memberships of a board will, in the absence of any express
provision therefore, be deemed to be for the unexpired term, where the statute fixes the
first term at unequal lengths, so as to prevent an entire change of membership at any one
time. In speaking of the reasoning to the contrary, the court said: "It would make the term
of office to depend upon the pleasure or caprice of the incumbent, and not upon the will
of the legislature as expressed in plain and undoubted language in the law. This
construction would defeat the true intent and meaning of the legislature, 50 LRA. (N. S.),
which was to prevent an entire change of the board of directors of the prison.
Other cases to the same effect are collated in the editorial note in State Ex. Rel. Fish vs.
Howell, 50 L. R. A. (N. S.), 345.chanroblesvirtualawlibrary chanrobles virtual law library
The fact that the orderly rotation and renovation of Commissioners would be wrecked
unless, in case of early vacancy, a successor should only be allowed to serve for the
unexpired portion of each regular term, sufficiently explains why no express provision to
that effect is made in Article X of the Constitution. The rule is so evidently fundamental
and indispensable to the working of the plan that it became unnecessary to state it in so
many words. The mere fact that such appointments would make the appointees serve for
less than 9 years does not argue against reading such limitation into the constitution,
because the nine-year term cannot be lifted out of context and independently of the
provision limiting the terms of the terms of the first commissioners to nine, six and three
years; and because in any event, the unexpired portion is still part and parcel of the
preceding term, so that in filling the vacancy, only the tenure of the successor is
shortened, but not the term of office.chanroblesvirtualawlibrary chanrobles virtual law
library
It may be that the appointing power has sufficient inducements at hand to create
vacancies in the Commission, and find occasion for appointments thereto, whenever it
chooses to do so. That possibility, however, would not in any way justify this Court in
setting at naught the clear intention of the Constitution to have members of Commission

appointed at regular 3-year intervals.chanroblesvirtualawlibrary chanrobles virtual law

library
It is argued that under the rule, one may be appointed for a much shorter term than nine
years, say one year or even less, and his independence would be thereby reduced. The
point is, however, that the majority of the Commission would not be affected (save in
really exceptional cases) and independence of the majority is the independence of the
whole Commission.chanroblesvirtualawlibrary chanrobles virtual law library
For the same reasons it must be admitted that the terms of the first three Commissioners
should be held to have started at the same moment, irrespective of the variations in their
dates of appointment and qualification, in order that the expiration of the first terms of
nine, six and three years should lead to the regular recurrence of the three-year intervals
between the expiration of the terms. Otherwise, the fulfillment and success of the
carefully devised constitutional scheme would be made to depend upon the willingness of
the appointing power to conform thereto.chanroblesvirtualawlibrary chanrobles virtual
law library
It would be really immaterial whether the terms of the first Commissioners appointed
under the Constitutional provision should be held to start from the approval of the
constitutional amendment (December 2, 1940), the reorganization of the Commission
under C. A. 657, on June 21, 1941, or from the appointment of the first Chairman,
Honorable Jose Lopez Vito, on May 13, 1941. The point to be emphasized is that the
terms of all three Commissioners appointed under the Constitution began at the same
instant and that, in case of a belated appointment (like that of Commissioner Enage), the
interval between the start of the term and the actual qualification of the appointee must be
counted against the latter. No other rule could satisfy the constitutional
plan.chanroblesvirtualawlibrary chanrobles virtual law library
Of the three starting dates given above, we incline to prefer that of the organization of the
constitutional Commission on Elections under Commonwealth Act 657, on June 21,
1941, since said act implemented and completed the organization of the Commission that
under the Constitution "shall be" established. Certainly the terms cannot begin from the
first appointments, because appointment to a Constitution office is not only a right, but
equally a duty that should not be shirked or delayed. On the basic tenets of our
democratic institutions, it can hardly be conceded that the appointing power should
possess discretion to retard compliance with its constitutional duty to appoint when delay
would impede or frustrate the plain intent of the fundamental law. Ordinarily, the
operation of the Constitution can not be made to depend upon the Legislature or the
Executive, but in the present case the generality of the organization lines under Article X
seems to envisage prospective implementation.chanroblesvirtualawlibrary chanrobles
virtual law library

Applying the foregoing ruling to the case at bar, we find that the terms of office of the
first appointees under the constitution should be computed as follows:
Hon. Jose Lopez Vito, Chairman, nine-year term, from June 21, 1941 to June 20, 1950.
Hon. Francisco Enage, Member, six year term, from June 21, 1941 to June 20, 1947.
The first 3 year term, from June 21, 1941 to June 20, 1944, was not filled.
Thereafter, since the first three-year term had already expired, the appointment (made on
July 12, 1945) of the Honorable Vicente de Vera must be deemed for the full term of nine
years, from June 21, 1944, to June 20, 1953.chanroblesvirtualawlibrary chanrobles virtual
law library
The first vacancy occurred by expiration of the initial 6-year term of Commissioner
Enage on June 21, 1937 (although he served as de facto Commissioner until 1949). His
successor, respondent Rodrigo Perez, was named for a full nine-year term. However, on
the principles heretofore laid, the nine-year term of Commissioner Perez (vice Enage)
should be held to have started in June 21, 1947, to expire on June 20,
1956.chanroblesvirtualawlibrary chanrobles virtual law library
The second vacancy happened upon the death of Chairman Jose Lopez Vito, who died on
May 7, 1947, more than two years before the expiration of his full term. To succeed him
as Chairman, Commissioner Vicente de Vera was appointed. Such appointment, if at all
valid, could legally be only for the unexpired period of the Lopez Vito's term, up to June
20, 1950.chanroblesvirtualawlibrary chanrobles virtual law library
To fill the vacancy created by Vera's assumption of the Chairmanship, Commissioner
Leopoldo Rovira was appointed on May 22, 1947. Pursuant to the principles laid down,
Rovira could only fill out the balance of Vera's term, until June 20, 1953, and could not
be reappointed thereafter.chanroblesvirtualawlibrary chanrobles virtual law library
Commissioner Vera's tenure as Chairman (vice Lopez Vito) expired, as we have stated, on
June 20, 1950, the end of Lopez Vito's original term. A vacancy, therefore, occurred on
that date that Vera could no longer fill, since his reappointment was expressly prohibited
by the Constitution. The next Chairman was respondent Commissioner Domingo
Imperial, whose term of nine years must be deemed to have begun on June 21, 1950, to
expire on June 20, 1959.chanroblesvirtualawlibrary chanrobles virtual law library
The vacancy created by the legal expiration of Rovira's term on June 20, 1953 appears
unfilled up to the present. The time elapsed, as we have held, must be counted against his
successor, whose legal term is for nine years, from June 21, 1953 to June 20,
1962.chanroblesvirtualawlibrary chanrobles virtual law library

The fact must be admitted that appointments have heretofore been made with little regard
for the Constitutional plan. However, if the principles set in this decision are observed, no
difficulty need be anticipated for the future.chanroblesvirtualawlibrary chanrobles virtual
law library
And it appearing, from the foregoing, that the legal terms of office of the respondents
Perez and Imperial have not as yet expired, whether the original terms started from the
operation of the Constitutional amendments or the enactment of C. A. 657, the petition
for quo warranto is hereby dismissed without costs.

THELMA P. GAMINDE, petitioner, vs. COMMISSION ON AUDIT and/or

Hon. CELSO D. GANGAN, Hon. RAUL C. FLORES and
EMMANUEL M. DALMAN, respondents.
The Case
The case is a special civil action of certiorari seeking to annul and set aside
two decisions of the Commission on Audit ruling that petitioners term of office as
Commissioner, Civil Service Commission, to which she was appointed on June 11,
1993, expired on February 02, 1999, as set forth in her appointment paper.
The Facts
On June 11, 1993, the President of the Philippines appointed petitioner Thelma
P. Gaminde, ad interim, Commissioner, Civil Service Commission. She assumed
office on June 22, 1993, after taking an oath of office. On September 07, 1993, the
Commission on Appointment, Congress of the Philippines confirmed the
appointment. We quote verbatim her appointment paper:
11 June 1993
Madam:
Pursuant to the provisions of existing laws, you are hereby appointed,
ad interim, COMMISSIONER, CIVIL SERVICE COMMISSION, for a term
expiring February 2, 1999.
By virtue hereof, you may qualify and enter upon the performance of
the duties of the office, furnishing this Office and the Civil Service
Commission with copies of your oath of office.[1]
However, on February 24, 1998, petitioner sought clarification from the Office
of the President as to the expiry date of her term of office. In reply to her request, the
Chief Presidential Legal Counsel, in a letter dated April 07, 1998 [2] opined that
petitioners term of office would expire on February 02, 2000, not on February 02,
1999.
Relying on said advisory opinion, petitioner remained in office after February
02, 1999. On February 04, 1999, Chairman Corazon Alma G. de Leon, wrote the
Commission on Audit requesting opinion on whether or not Commissioner Thelma
P. Gaminde and her co-terminous staff may be paid their salaries notwithstanding
the expiration of their appointments on February 02, 1999.
On February 18, 1999, the General Counsel, Commission on Audit, issued an
opinion that the term of Commissioner Gaminde has expired on February 02, 1999
as stated in her appointment conformably with the constitutional intent. [3]
Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe
issued notice of disallowance No. 99-002-101 (99), disallowing in audit the salaries
and emoluments pertaining to petitioner and her co-terminous staff, effective
February 02, 1999.[4]
On April 5, 1999, petitioner appealed the disallowance to the Commission on
Audit en banc. On June 15, 1999, the Commission on Audit issued Decision No. 99090 dismissing petitioners appeal. The Commission on Audit affirmed the propriety
of the disallowance, holding that the issue of petitioners term of office may be
properly addressed by mere reference to her appointment paper which set the

expiration date on February 02, 1999, and that the Commission is bereft of power to
recognize an extension of her term, not even with the implied acquiescence of the
Office of the President.[5]
In time, petitioner moved for reconsideration; however, on August 17, 1999,
the Commission on Audit denied the motion in Decision No. 99-129. [6]
Hence, this petition.[7]
The Issue
The basic issue raised is whether the term of office of Atty. Thelma P.
Gaminde, as Commissioner, Civil Service Commission, to which she was appointed
on June 11, 1993, expired on February 02, 1999, as stated in the appointment paper,
or on February 02, 2000, as claimed by her.
The Courts Ruling
The term of office of the Chairman and members of the Civil Service
Commission is prescribed in the 1987 Constitution, as follows:
Section 1 (2). The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, the Chairman shall hold
office for seven years, a Commissioner for five years, and another Commissioner for
three years, without reappointment. Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.[8]
The 1973 Constitution introduced the first system of a regular rotation or cycle
in the membership of the Civil Service Commission. The provision on the 1973
Constitution reads:
x x x The Chairman and the Commissioners shall be appointed by the Prime
Minister for a term of seven years without reappointment. Of the Commissioners
first appointed, one shall hold office for seven years, another for five years, and the
third for three years. Appointment to any vacancy shall be only for the unexpired
portion of the term of the predecessor.[9]
Actually, this was a copy of the Constitutional prescription in the amended
1935 Constitution of a rotational system for the appointment of the Chairman and
members of the Commission on Elections. The Constitutional amendment creating
an independent Commission on Elections provides as follows:
Section 1. There shall be an independent Commission on Elections composed of a
Chairman and two other Members to be appointed by the President with the consent
of the Commission on Appointments, who shall hold office for a term of nine years
and may not be reappointed. Of the Members of the Commission first appointed,
one shall hold office for nine years, another for six years, and the third for three
years. The Chairman and the other Members of the Commission on Elections may
be removed from office only by impeachment in the manner provided in this
Constitution."[10]
In Republic vs. Imperial,[11] we said that the operation of the rotational plan
requires two conditions, both indispensable to its workability: (1) that the terms of
the first three (3) Commissioners should start on a common date, and, (2) that any

vacancy due to death, resignation or disability before the expiration of the term
should only be filled only for the unexpired balance of the term.[12]
Consequently, the terms of the first Chairmen and Commissioners of the
Constitutional Commissions under the 1987 Constitution must start on a common
date, irrespective of the variations in the dates of appointments and qualifications of
the appointees, in order that the expiration of the first terms of seven, five and three
years should lead to the regular recurrence of the two-year interval between the
expiration of the terms.[13]
Applying the foregoing conditions to the case at bar, we rule that the
appropriate starting point of the terms of office of the first appointees to the
Constitutional Commissions under the 1987 Constitution must be on February 02,
1987, the date of the adoption of the 1987 Constitution. In case of a belated
appointment or qualification, the interval between the start of the term and the actual
qualification of the appointee must be counted against the latter.[14]
In the law of public officers, there is a settled distinction between term and
tenure. [T]he term of an office must be distinguished from the tenure of the
incumbent. The term means the time during which the officer may claim to hold
office as of right, and fixes the interval after which the several incumbents shall
succeed one another. The tenure represents the term during which the incumbent
actually holds the office. The term of office is not affected by the hold-over. The
tenure may be shorter than the term for reasons within or beyond the power of the
incumbent.[15]
In concluding that February 02, 1987 is the proper starting point of the terms
of office of the first appointees to the Constitutional Commissions of a staggered 75-3 year terms, we considered the plain language of Article IX (B), Section 1 (2),
Article IX (C), Section 1 (2) and Article IX (D), Section 1 (2) of the 1987
Constitution that uniformly prescribed a seven-year term of office for Members of
the Constitutional Commissions, without re-appointment, and for the first appointees
terms of seven, five and three years, without re-appointment. In no case shall any
Member be appointed or designated in a temporary or acting capacity. There is no
need to expressly state the beginning of the term of office as this is understood to
coincide with the effectivity of the Constitution upon its ratification (on February
02, 1987).
On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution
provides:
SEC. 15. The incumbent Members of the Civil Service Commission, the
Commission on Elections, and the Commission on Audit shall continue in office for
one year after the ratification of this Constitution, unless they are sooner removed
for cause or become incapacitated to discharge the duties of their office or appointed
to a new term thereunder. In no case shall any Member serve longer than seven years
including service before the ratification of this Constitution. [16]
What the above quoted Transitory Provisions contemplate is tenure not term of
the incumbent Chairmen and Members of the Civil Service Commission, the
Commission on Elections and the Commission on Audit, who shall continue in
office for one year after the ratification of this Constitution, unless they are sooner

removed for cause or become incapacitated to discharge the duties of their office or
appointed to a new term thereunder. The term unless imports an exception to the
general rule.[17] Clearly, the transitory provisions mean that the incumbent members
of the Constitutional Commissions shall continue in office for one year after the
ratification of this Constitution under their existing appointments at the discretion of
the appointing power, who may cut short their tenure by: (1) their removal from
office for cause; (2) their becoming incapacitated to discharge the duties of their
office, or (3) their appointment to a new term thereunder, all of which events may
occur before the end of the one year period after the effectivity of the Constitution.
However, the transitory provisions do not affect the term of office fixed in
Article IX, providing for a seven-five-three year rotational interval for the first
appointees under this Constitution.
At the time of the adoption of the 1987 Constitution, the incumbent Chairman
and members of the Civil Service Commission were the following: (1) Chairperson
Celerina G. Gotladera. She was initially appointed as OIC Chairman on March 19,
1986, and appointed chairman on December 24, 1986, which she assumed on March
13, 1987. (2) Atty. Cirilo G. Montejo. On June 25, 1986, President Corazon C.
Aquino appointed him Commissioner, without any term. He assumed office on July
9, 1986, and served until March 31, 1987, when he filed a certificate of candidacy
for the position of Congressman, 2 nd District, Leyte, thereby vacating his position as
Commissioner. His tenure was automatically cut-off by the filing of his certificate of
candidacy. (3) Atty. Mario D. Yango. On January 22, 1985, President Ferdinand E.
Marcos appointed him Commissioner for a term expiring January 25, 1990. He
served until February 2, 1988, when his term ended in virtue of the transitory
provisions referred to. On May 30, 1988, President Aquino re-appointed him to a
new three-year term and served until May 31, 1991, exceeding his lawful term, but
not exceeding the maximum of seven years, including service before the ratification
of the 1987 Constitution. Under this factual milieu, it was only Commissioner Yango
who was extended a new term under the 1987 Constitution. The period consumed
between the start of the term on February 02, 1987, and his actual assumption on
May 30, 1988, due to his belated appointment, must be counted against him.
Given the foregoing common starting point, we compute the terms of the first
appointees and their successors to the Civil Service Commission under the 1987
Constitution by their respective lines, as follows:
First line : Chairman seven-year term. February 02, 1987 to February 01,
1994. On January 30, 1988, the President nominated Ms. Patricia A. Sto. Tomas
Chairman, Civil Service Commission. On March 02, 1988, the Commission on
Appointments confirmed the nomination. She assumed office on March 04,
1988. Her term ended on February 02, 1994. She served as de facto Chairman until
March 04, 1995. On March 05, 1995, the President appointed then Social Welfare
Secretary Corazon Alma G. de Leon, Chairman, Civil Service Commission, to a
regular seven-year term. This term must be deemed to start on February 02, 1994,
immediately succeeding her predecessor, whose term started on the common date of
the terms of office of the first appointees under the 1987 Constitution. She assumed
office on March 22, 1995, for a term expiring February 02, 2001.

This is shown in her appointment paper, quoted verbatim as follows:

March 5, 1995
Madam:
Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the
Constitution, you are hereby appointed, ad interim, CHAIRMAN, CIVIL
SERVICE COMMISSION, for a term expiring February 2, 2001.
By virtue hereof, you may qualify and enter upon the performance of the
duties of the office, furnishing this Office and the Civil Service Commission
with copies of your oath of office.
(Sgd.) FIDEL V. RAMOS
Second line : Commissioner Five-year term. February 02, 1987 to February
02, 1992. On January 30, 1988, the President nominated Atty. Samilo N. Barlongay
Commissioner, Civil Service Commission. On February 17, 1988, the Commission
on Appointments, Congress of the Philippines, confirmed the nomination. He
assumed office on March 04, 1988. His term ended on February 02, 1992. He served
as de facto Commissioner until March 04, 1993.
On June 11, 1993, the President appointed Atty. Thelma P. Gaminde
Commissioner, Civil Service Commission, for a term expiring February 02, 1999.
[18]
This terminal date is specified in her appointment paper. On September 07, 1993,
the Commission on Appointments confirmed the appointment. She accepted the
appointment and assumed office on June 22, 1993. She is bound by the term of the
appointment she accepted, expiring February 02, 1999. In this connection, the letter
dated April 07, 1998, of Deputy Executive Secretary Renato C. Corona [19] clarifying
that her term would expire on February 02, 2000, was in error. What was submitted
to the Commission on Appointments was a nomination for a term expiring on
February 02, 1999. Thus, the term of her successor [20] must be deemed to start on
February 02, 1999, and expire on February 02, 2006.
Third line : Commissioner Three-year term. February 02, 1987 to February 02,
1990. Atty. Mario D. Yango was incumbent commissioner at the time of the
adoption of the 1987 Constitution. His extended tenure ended on February 02,
1988. In May, 1988, President Corazon C. Aquino appointed him Commissioner,
Civil Service Commission to a new three-year term thereunder. He assumed office
on May 30, 1988. His term ended on February 02, 1990, but served as de
facto Commissioner until May 31, 1991. On November 26, 1991, the President
nominated Atty. Ramon P. Ereeta as Commissioner, Civil Service Commission. On
December 04, 1991, the Commission on Appointments confirmed the
nomination. He assumed office on December 12, 1991, for a term expiring February
02, 1997.[21]
Commendably, he voluntarily retired on February 02, 1997. On February 03,
1997, President Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner,
Civil Service Commission, for a term expiring February 02, 2004. He assumed
office on February 11, 1997.
Thus, we see the regular interval of vacancy every two (2) years, namely,
February 02, 1994, for the first Chairman, [22] February 02, 1992, for the first fiveyear term Commissioner,[23] and February 02, 1990, for the first three-year term

Commissioner.[24] Their successors must also maintain the two year interval, namely:
February 02, 2001, for Chairman; [25] February 02, 1999, for Commissioner Thelma
P. Gaminde, and February 02, 1997, for Commissioner Ramon P. Ereeta, Jr.
The third batch of appointees would then be having terms of office as follows:
First line : Chairman, February 02, 2001 to February 02, 2008;
Second line: Commissioner, February 02, 1999 to February 02, 2006; [26] and, Third
line: Commissioner, February 02, 1997 to February 02, 2004, [27] thereby consistently
maintaining the two-year interval.
The line of succession, terms of office and tenure of the Chairman and
members of the Civil Service Commission may be outlined as follows: [28]
Chairman Term Tenure
(7-year original)
Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to
Feb. 02, 1994 March 08, 1995
De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995 to
(incumbent) Feb. 02, 2001 Feb. 02, 2001
_______ - 3rd appointee Feb. 02, 2001 to
Feb. 02, 2008
2nd Member Term Tenure
(5-year original)
Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988 to
Feb. 02, 1992 March 04, 1993
Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to
Feb. 02, 1999 Feb. 02, 2000
Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to
(incumbent) Feb. 02, 2006 Feb. 02, 2006
3rd Member Term Tenure
(3-year original)
Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to
Feb. 02, 1990 May 31, 1991
Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to
Feb. 02, 1997 Feb. 02, 1997
Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to
(incumbent) Feb. 02, 2004 Feb. 02, 2004
The Fallo
WHEREFORE, we adjudge that the term of office of Ms. Thelma P.
Gaminde as Commissioner, Civil Service Commission, under an appointment
extended to her by President Fidel V. Ramos on June 11, 1993, expired on February
02, 1999. However, she served as de facto officer in good faith until February 02,
2000, and thus entitled to receive her salary and other emoluments for actual service
rendered. Consequently, the Commission on Audit erred in disallowing in audit such
salary and other emoluments, including that of her co-terminous staff.
ACCORDINGLY, we REVERSE the decisions of the Commission on Audit
insofar as they disallow the salaries and emoluments of Commissioner Thelma P.

Gaminde and her coterminous staff during her tenure as de facto officer from
February 02, 1999, until February 02, 2000.
This decision shall be effective immediately.
No costs.
SO ORDERED.
CAPABLANCA vs. CSC
Uniformed members of the Philippine National Police (PNP) are considered
employees of the National Government, and all personnel of the PNP are subject to civil service
laws and regulations.[1] Petitioner cannot evade liability under the pretense that another agency has
primary jurisdiction over him. Settled is the rule that jurisdiction is conferred only by the
Constitution or the law.[2] When it clearly declares that a subject matter falls within the jurisdiction
of a tribunal, the party involved in the controversy must bow and submit himself to the tribunal on
which jurisdiction is conferred.

In an Order[11] dated November 16, 2001, the CSC Caraga held that there was no dispute that it
was the NAPOLCOM which had the sole authority to conduct the entrance and promotional
examinations of police officers. However, since petitioner submitted a CSC Career Service
Professional eligibility and not a NAPOLCOM eligibility to support his appointment on a
permanent status, then the CSC had jurisdiction to conduct the preliminary investigation.

Factual Antecedents

Proceedings before the Regional Trial Court

On October 3, 1996, the PNP-Regional Office 10 appointed petitioner Eugenio S. Capablanca

into the PNP service with the rank of Police Officer 1 (PO1) with a temporary status [3] and was
assigned at the PNP Station in Butuan City. On November 29, 1998, petitioner took the PNP
Entrance Examination conducted by the National Police Commission (NAPOLCOM) [4] and
passed the same. On July 28, 2000, he took the Career Service Professional ExaminationComputer Assisted Test (CSP-CAT) given by the Civil Service Commission (CSC) [5] and
likewise passed the same. Thereafter, or on October 3, 2000, the Regional Director of Police
Regional Office XIII conferred upon petitioner the permanent status as PO1.[6]

To prevent the CSC Caraga from further proceeding with the conduct of the administrative
investigation, PO1 Capablanca filed on January 16, 2002 a Petition[13] for prohibition and
injunction with a prayer for the issuance of a temporary restraining order and writ of preliminary
injunction with the Regional Trial Court of Butuan. The said court issued a 20-day temporary
restraining order and set the case for summary hearing on February 8, 2002 to resolve the
application for preliminary injunction.[14]

Proceedings before the Civil Service Commission

On October 15, 2001, the CSC Caraga Regional Office XIII (CSC Caraga) through its Regional
Director Lourdes Clavite-Vidal informed PO1 Capablanca about certain alleged irregularities
relative to the CSP-CAT which he took on July 28, 2000. According to the CSC, the person in
the picture pasted in the Picture Seat Plan (PS-P) is different from the person whose picture is
attached in the Personal Data Sheet (PDS) and that the signature appearing in the PS-P was
different from the signature affixed to the PDS. [7] The CSC further informed petitioner that such
findings of alleged examination irregularities constituted the offense of dishonesty if prima
facie evidence was established.
A Preliminary Investigation was scheduled on November 16, 2001;[8] petitioner failed to appear
but was represented by counsel who moved to dismiss the proceedings. He argued that it is the
NAPOLCOM which has sole authority to conduct entrance and promotional examinations for
police officers to the exclusion of the CSC, pursuant to Civil Service Commission v. Court of
Appeals.[9] Thus, the CSP-CAT conducted on July 28, 2000 was void. Moreover, he alleged that
the administrative discipline over police officers falls under the jurisdiction of the PNP and/or
NAPOLCOM.[10]

The dispositive portion of the CSC Order dated November 16, 2001, reads:
WHEREFORE, the Motion to Dismiss filed by Atty. Poculan,
for his client, Eugenio S. Capablanca is hereby DENIED for lack of
merit. Accordingly, Capablanca is directed to submit his counter-affidavit
within five (5) days from receipt hereof.[12]

Instead of filing its Answer, the CSC Caraga moved to dismiss the case,[15] arguing inter alia that:
a) PO1 Capablanca failed to exhaust administrative remedies by appealing before the CSC
Central Office instead of filing a petition before the trial court; b) PO1 Capablancas reliance
on Civil Service Commission v. Court of Appeals[16] was misplaced because what he took was a
career service professional examination and not a police entrance examination; and c) the CSC
was not stripped of its original disciplinary jurisdiction over all cases involving civil service
examination anomalies.
In its March 8, 2002 Resolution,[17] the trial court denied CSCs Motion to Dismiss for lack of
merit. It held that the CSC had no jurisdiction to conduct the preliminary investigation, much less
to prosecute PO1 Capablanca. The dispositive portion of the Resolution, reads:
WHEREFORE, in view of all the foregoing, respondents motion to
dismiss is denied for lack of merit. As a consequence and for want of
jurisdiction, herein respondent, its Regional Director, Region 13 Caraga, or
its officers, attorneys agents, or any person acting for and its behalf, is
hereby ordered to finally, permanently and perpetually desist, cease and
stop from proceeding or conducting any administrative investigation
against the petitioner Eugenio S. Capablanca.
No pronouncement as to costs.

IT IS SO ORDERED.[18]

GRANTING THAT IT HAS, THE HONORABLE COURT OF

APPEALS GRAVELY ERRED IN NOT DECLARING THAT IT HAS
ONLY APPELLATE JURISDICTION OVER THE CASE AND IT IS
THE NATIONAL POLICE COMMISSION (NAPOLCOM) WHICH
HAS THE JURISDICTION TO CONDUCT INITIATORY
INVESTIGATION OF THE CASE, AS HELD IN THE CASE
OF MIRALLES VS. GO, G.R. NO. 139943, JANUARY 18, 2001.

Proceedings before the Court of Appeals

Its Motion for Reconsideration[19] unheeded,[20] the CSC Caraga filed a Petition
for Certiorari[21] before the Court of Appeals praying for the nullification of the Resolution of the
trial court, and at the same time insisting on its jurisdictional power to prosecute the administrative
case involving dishonesty and that PO1 Capablanca failed to exhaust administrative remedies.
In his Comment,[22] the petitioner contended that there was no need to exhaust administrative
remedies because the proceeding before the CSC was an absolute nullity, and that it was the
NAPOLCOM, the Peoples Law Enforcement Board (PLEB), or PNP which had primary
jurisdiction over the alleged irregularities in the CSP-CAT. He alleged that the case involved a
purely legal issue and that he would suffer irreparable injury if he should still await the outcome of
the administrative action before the CSC Central Office. PO1 Capablanca stressed that the July
28, 2000 CSP-CAT was ineffectual as far as he was concerned, because it was in the nature of a
promotional examination for policemen and was solely within the province of NAPOLCOM.
On March 22, 2006, the Court of Appeals rendered its Decision [23] granting CSCs petition. The
Court of Appeals found that PO1 Capablanca prematurely resorted to court intervention when the
remedy of appeal to the CSC Central Office was available. Upholding the jurisdiction of the CSC
Caraga, the appellate court declared that the subject of the latters preliminary investigation was not
with respect to PO1 Capablancas acts in the conduct of his duties as a police officer, but with
respect to the authenticity of the documents he submitted before the CSC Caraga in support of his
application for permanent status as well as the veracity of its contents. It held that pursuant to the
CSC's constitutional duty to protect the integrity of the civil service system, it acted within its
authority to investigate irregularities or anomalies involving civil service examinations, and to
ascertain whether a prospective civil service appointee is qualified in accordance with all the legal
requirements.
Hence, this petition.
Petitioners Arguments

II
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT
GRAVELY ERRED IN DECLARING THAT HEREIN PETITIONER
FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.[24]
Respondents Arguments
The CSC, through the Office of the Solicitor General (OSG) argues that in pursuing a case against
one who undermines the integrity of the CSC examinations, the CSC Caraga was only acting
within its mandated powers and duties. The OSG clarifies that the PNP does not have exclusive
jurisdiction over disciplinary cases. Rather, its jurisdiction over such cases is concurrent with that
of the CSC. It also argues that Civil Service Commission v. Court of Appeals[25] is irrelevant to
petitioner's situation because the ruling therein does not affect the authority of the CSC to conduct
the CSP examination and to investigate examination anomalies. Lastly, the OSG contends that
petitioner should not have directly resorted to court action, because the CSC proper could still
review the decisions and actions of the CSC Caraga.[26]
Issue
The case at bar boils down to the issue of whether the CSC Caraga has jurisdiction to conduct the
preliminary investigation of a possible administrative case of dishonesty against PO1 Capablanca
for alleged CSP examination irregularity.
Our Ruling
The petition lacks merit.

Petitioner PO1 Capablanca assigns the following errors:

1
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT,
GRAVELY ERRED IN DECLARING THAT RESPONDENT CSC
HAS JURISDICTION AND DISCIPLINARY AUTHORITY OVER
HEREIN PETITIONER, A MEMBER OF THE PHILIPPINE
NATIONAL POLICE.
1-A

The CSC, as the central personnel agency of the Government, is mandated to establish a career
service, to strengthen the merit and rewards system, and to adopt measures to promote morale,
efficiency and integrity in the civil service.[27] The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the government, including government-owned or
controlled corporations with original charters.[28] Specifically, Section 91 of Republic Act (RA)
No. 6975 (1990) or the Department of Interior and Local Government Act of 1990 provides that
the Civil Service Law and its implementing rules and regulations shall apply to all personnel of
the Department, to which herein petitioner belongs.

Section 12 of Executive Order (EO) No. 292 or the Administrative Code of 1987, enumerates the
powers and functions of the CSC, to wit:
SEC. 12. Powers and Functions. - The Commission shall have
the following powers and functions:
(1) Administer and enforce the constitutional and statutory provisions on
the merit system for all levels and ranks in the Civil Service;

xxxx
Based on the foregoing, it is clear that the CSC acted within its jurisdiction when it initiated the
conduct of a preliminary investigation on the alleged civil service examination irregularity
committed by the petitioner.
However, petitioner contends that a citizen who has complaints against a police officer should
bring his complaint before the following, citing Section 41 of RA 6975,[29] to wit:
(a) x x x x

xxxx
(7) Control, supervise and coordinate Civil Service examinations. x x x

(1) Chiefs of police, where the offense is punishable by withholding of

privileges, restriction to specified limits, suspension or forfeiture of salary,
or any combination thereof for a period not exceeding fifteen (15) days;

xxxx
(11) Hear and decide administrative cases instituted by or brought before
it directly or on appeal, including contested appointments, and review
decisions and actions of its offices and of the agencies attached to it. x x x
In addition, Section 28, Rule XIV of the Omnibus Civil Service Rules and
Regulations specifically confers upon the CSC the authority to take cognizance over any
irregularities or anomalies connected with the examinations, thus:
Sec. 28. The Commission shall have original disciplinary jurisdiction over
all its officials and employees and over all cases involving civil service
examination anomalies or irregularities.
To carry out this mandate, the CSC issued Resolution No. 991936, or the Uniform
Rules on Administrative Cases in the Civil Service, empowering its Regional Offices to take
cognizance of cases involving CSC examination anomalies:
SECTION 6. Jurisdiction of Civil Service Regional Offices. - The Civil
Service Commission Regional Offices shall have jurisdiction over the
following cases:
A. Disciplinary
1. Complaints initiated by, or brought before, the Civil Service
Commission Regional Offices provided that the alleged acts or
omissions were committed within the jurisdiction of the
Regional Office, including Civil Service examination
anomalies or irregularities and the persons complained of are
employees of agencies, local or national, within said
geographical areas;

(2) Mayors of cities or municipalities, where the offense is punishable by

withholding of privileges, restriction to specified limits, suspension or
forfeiture of salary, or any combination thereof, for a period of not less than
sixteen (16) days but not exceeding thirty (30) days;
(3) People's Law Enforcement Board, as created under Section 43 hereof,
where the offense is punishable by withholding of privileges, restriction to
specified limits, suspension or forfeiture of salary, or any combination
thereof, for a period exceeding thirty (30) days; or by dismissal.
xxxx
(c) Exclusive Jurisdiction. - A complaint or a charge filed against a PNP
member shall be heard and decided exclusively by the disciplining
authority who has acquired original jurisdiction over the case and
notwithstanding the existence of concurrent jurisdiction as regards the
offense: Provided, That offenses which carry higher penalties referred to a
disciplining authority shall be referred to the appropriate authority which
has jurisdiction over the offense.
Based on the foregoing, petitioner avers that the CSC does not have the authority to
conduct an initiatory investigation of the case, but it only has appellate jurisdiction to review the
decision of any of the disciplining authorities above mentioned. Petitioner anchors his argument
on the following provisions of EO 292 stating that the heads of departments, agencies, offices or
bureaus should first commence disciplinary proceedings against their subordinates before their
decisions can be reviewed by the CSC:
Section 47, Book V of EO 292:
Disciplinary Jurisdiction. - (1) The Commission shall decide upon appeal
all administrative disciplinary cases involving the imposition of a penalty

of suspension for more than thirty days, or fine in an amount exceeding

thirty days' salary, demotion in rank or salary or transfer, removal or
dismissal from office x x x

Pursuant to Section 47 (1), (2) and Section 48 above, it is the Vice

President of the Philippines, as head of office, who is vested with
jurisdiction to commence disciplinary action against respondent Albao.

(2) The Secretaries and heads of agencies and instrumentalities, provinces,

cities and municipalities shall have jurisdiction to investigate and decide
matters involving disciplinary action against officers and employees under
their jurisdiction. Their decisions shall be final in case the penalty imposed
is suspension for not more than thirty days or fine in an amount not
exceeding thirty days' salary. In case the decision rendered by a bureau or
office head is appealable to the Commission, the same may be initially
appealed to the department and finally to the Commission and pending
appeal, the same shall be executory except when the penalty is removal, in
which case the same shall be executory only after confirmation by the
Secretary concerned.

Nevertheless, this Court does not agree that petitioner is helpless to act
directly and motu proprio, on the alleged acts of dishonesty and
falsification of official document committed by respondent in connection
with his appointment to a permanent position in the Office of the Vice
President.

Section 48, Book V of EO 292:

Procedure in Administrative Cases Against Non-Presidential Appointees. (1) Administrative proceedings may be commenced against a subordinate
officer or employee by the Secretary or head of office of equivalent rank,
or head of local government, or chiefs of agencies, or regional directors, or
upon sworn, written complaint of any other person.
We are not persuaded. It has already been settled in Cruz v. Civil Service Commission[30] that
the appellate power of the CSC will only apply when the subject of the administrative cases
filed against erring employees is in connection with the duties and functions of their office, and
not in cases where the acts of complainant arose from cheating in the civil service
examinations. Thus:

It is true that Section 47 (2), Title I (A), Book V of EO No. 292 gives the
heads of government offices original disciplinary jurisdiction over their
own subordinates. Their decisions shall be final in case the penalty
imposed is suspension for not more than thirty days or fine in an amount
not exceeding thirty days salary. It is only when the penalty imposed
exceeds the aforementioned penalties that an appeal may be brought
before the Civil Service Commission which has appellate jurisdiction over
the same in accordance with Section 47 (1) Title I(A), Book V of EO No.
292, thus:
SEC. 47. Disciplinary Jurisdiction. (1) The
Commission shall decide upon appeal all
administrative disciplinary cases involving the
imposition of a penalty of suspension for more than
thirty days, or fine in an amount exceeding thirty
days salary, demotion in rank or salary or transfer,
removal or dismissal from office. x x x

Petitioners invocation of the law is misplaced. The provision is applicable

to instances where administrative cases are filed against erring employees
in connection with their duties and functions of the office. This is,
however, not the scenario contemplated in the case at bar. It must be noted
that the acts complained of arose from a cheating caused by the petitioners
in the Civil Service (Subprofessional) examination. The examinations
were under the direct control and supervision of the Civil Service
Commission. The culprits are government employees over whom the
Civil Service Commission undeniably has jurisdiction. x x x

The present case, however, partakes of an act by petitioner to protect

the integrity of the civil service system, and does not fall under the
provision on disciplinary actions under Sec. 47. It falls under the
provisions of Sec. 12, par. 11, on administrative cases instituted by it
directly. This is an integral part of its duty, authority and power to
administer the civil service system and protect its integrity, as
provided in Article IX-B, Sec. 3 of the Constitution, by removing from
its list of eligibles those who falsified their qualifications. This is to be
distinguished from ordinary proceedings intended to discipline a
bona fide member of the system, for acts or omissions that constitute
violations of the law or the rules of the service. (Emphasis Ours)

Moreover, in Civil Service Commission v. Albao,[31] we rejected the contention that the CSC,
under the aforestated Sections 47 and 48 of Book V of EO 292, only has appellate disciplinary
jurisdiction on charges of dishonesty and falsification of documents in connection with an
appointment to a permanent position in the government service. We enunciated, thus:

Incidentally, it must be mentioned at this juncture that citizens complaints before the PLEB under
RA 6975 pertain to complaints lodged by private citizens against erring PNP members for the
redress of an injury, damage or disturbance caused by the latter's illegal or irregular acts, an
example being that of a policeman who takes fish from the market without paying for it.

[32]

Clearly, the PLEB has no jurisdiction concerning matters involving the integrity of the civil
service system.
Finally, petitioners reliance on Civil Service Commission v. Court of Appeals,[33] is
misplaced. In said case, the NAPOLCOM assailed Item 3 of CSC Resolution No. 96-5487,
which provides:
3. Appointees to Police Officer and Senior Police Officer
positions in the Philippine National Police must have passed any of the
following examinations:

It must be stressed however that the subject matter in the above cited case was the conduct of
promotional examination for policemen. On the contrary, the issue in the instant case is the
jurisdiction of the CSC with regard to anomalies or irregularities in the CSP-CAT, which is a
totally different matter.
In fine, we find that CSC Caraga acted within its powers when it instituted the conduct
of a preliminary investigation against herein petitioner. In view of the foregoing, we need not
anymore attend to the issue of the doctrine of exhaustion of administrative remedies.
WHEREFORE, the petition is DENIED for lack of merit.

a)
b)
c)

PNP Entrance Examination;

Police Officer 3rd Class Examination; and
CSC Police Officer Entrance Examination.

The NAPOLCOM took exception to this provision, particularly letter (c), arguing that the
requirement of taking a CSC Police Officer Entrance Examination is only applicable to entrance
in the first-level position in the PNP, i.e., the rank of PO1.[34] NAPOLCOM stressed that what
would entitle a police officer to the appropriate eligibility for his promotion in the PNP are the
promotional examinations conducted by the NAPOLCOM, and not the CSC Police Officer
Entrance Examination.
The Court of Appeals found in favor of the NAPOLCOM and held that the CSC, by issuing Item
3 of CSC Resolution No. 96-5487 encroached on the exclusive power of NAPOLCOM under
RA 6975[35] to administer promotional examinations for policemen and to impose qualification
standards for promotion of PNP personnel to the ranks of PO2 up to Senior Police Officers 14. Thus:
Admittedly, the CSC is mandated to conduct the qualifying entrance
examination (CSC Police Officer Entrance Examination) for Police
Officer 1. However, when the CSC prescribes the same examination for
appointment of Senior Police Officer (SPO) under the questioned Item 3, it
in effect imposes an examination for promotion (appointment) of a
policeman to PO2 up to other higher ranks up to SP04. Thus Item 3
encompasses examinations for the positions of Police Officer as well as
that of Senior Police Officer, meaning examination not only for
appointment to PO1 but promotion to PO2 and PO3 up to the four SPO
ranks.[36]
The Court of Appeals thus ordered the CSC to desist from conducting any promotional
examination for Police Officers and Senior Police Officers.
In a Minute Resolution dated September 25, 2001 in G.R. No. 141732, we affirmed the Court of
Appeals thereby sustaining the authority of the NAPOLCOM to administer promotional
examinations for policemen.

SO ORDERED.

BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS

COMMISSION and NATIONAL HOUSING
CORPORATION, respondents.

On February 6, 1989, respondent NHC moved for the dismissal of the

complaint on the ground that the Civil Service Commission has no jurisdiction over
the case.[5]
On April 11, 1989, the Civil Service Commission issued an order dismissing
the complaint for lack of jurisdiction. It ratiocinated that:

This is a petition for certiorari to set aside the Decision of the National Labor
Relations Commission (NLRC) dated March 14, 1991, which reversed the Decision
dated May 21, 1990 of Labor Arbiter Manuel R. Caday, on the ground of lack of
jurisdiction.
Petitioner Benjamin C. Juco was hired as a project engineer of respondent
National Housing Corporation (NHC) from November 16, 1970 to May 14, 1975.
On May 14, 1975, he was separated from the service for having been implicated in a
crime of theft and/or malversation of public funds.
On March 25, 1977, petitioner filed a complaint for illegal dismissal against
the NHC with the Department of Labor.
On September 17, 1977, the Labor Arbiter rendered a decision dismissing the
complaint on the ground that the NLRC had no jurisdiction over the case. [1]
Petitioner then elevated the case to the NLRC which rendered a decision on
December 28, 1982, reversing the decision of the Labor Arbiter.[2]
Dissatisfied with the decision of the NLRC, respondent NHC appealed before
this Court and on January 17, 1985, we rendered a decision, the dispositive portion
thereof reads as follows:
WHEREFORE, the petition is hereby GRANTED. The questioned decision of the
respondent National Labor Relations Commission is SET ASIDE. The decision of
the Labor Arbiter dismissing the case before it for lack of jurisdiction is
REINSTATED.[3]
On January 6, 1989, petitioner filed with the Civil Service Commission a
complaint for illegal dismissal, with preliminary mandatory injunction. [4]

The Board finds the comment and/or motion to dismiss meritorious. It was not
disputed that NHC is a government corporation without an original charter but
organized/created under the Corporate Code.
Article IX, Section 2 (1) of the 1987 Constitution provides:
The civil service embraces all branches, subdivisions, instrumentalities and agencies
of the government, including government owned and controlled corporations with
original charters. (underscoring supplied)
From the aforequoted constitutional provision, it is clear that respondent NHC is not
within the scope of the civil service and is therefore beyond the jurisdiction of this
board. Moreover, it is pertinent to state that the 1987 Constitution was ratified and
became effective on February 2, 1987.
WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed. [6]
On April 28, 1989, petitioner filed with respondent NLRC a complaint for
illegal dismissal with preliminary mandatory injunction against respondent NHC. [7]
On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday
ruled that petitioner was illegally dismissed from his employment by respondent as
there was evidence in the record that the criminal case against him was purely
fabricated, prompting the trial court to dismiss the charges against him. Hence, he
concluded that the dismissal was illegal as it was devoid of basis, legal or factual.
He further ruled that the complaint is not barred by prescription considering
that the period from which to reckon the reglementary period of four years should be
from the date of the receipt of the decision of the Civil Service Commission
promulgated on April 11, 1989. He also ratiocinated that:

It appears x x x complainant filed the complaint for illegal dismissal with the Civil
Service Commission on January 6, 1989 and the same was dismissed on April 11,
1989 after which on April 28, 1989, this case was filed by the complainant. Prior to
that, this case was ruled upon by the Supreme Court on January 17, 1985 which
enjoined the complainant to go to the Civil Service Commission which in fact,
complainant did. Under the circumstances, there is merit on the contention that the
running of the reglementary period of four (4) years was suspended with the filing of
the complaint with the said Commission. Verily, it was not the fault of the
respondent for failing to file the complaint as alleged by the respondent but due to,
in the words of the complainant, a legal knot that has to be untangled. [8]
Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of
which reads:
"Premises considered, judgment is hereby rendered declaring the dismissal of the
complainant as illegal and ordering the respondent to immediately reinstate him to
his former position without loss of seniority rights with full back wages inclusive of
allowance and to his other benefits or equivalent computed from the time it is
withheld from him when he was dismissed on March 27, 1977, until actually
reinstated.[9]
On June 1, 1990, respondent NHC filed its appeal before the NLRC and on
March 14, 1991, the NLRC promulgated a decision which reversed the decision of
Labor Arbiter Manuel R. Caday on the ground of lack of jurisdiction. [10]
The primordial issue that confronts us is whether or not public respondent
committed grave abuse of discretion in holding that petitioner is not governed by the
Labor Code.
Under the laws then in force, employees of government-owned and /or
controlled corporations were governed by the Civil Service Law and not by the
Labor Code. Hence,
Article 277 of the Labor Code (PD 442) then provided:
"The terms and conditions of employment of all government employees, including
employees of government-owned and controlled corporations shall be governed by
the Civil Service Law, rules and regulations x x x.

The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided:
The Civil Service embraces every branch, agency, subdivision and instrumentality of
the government, including government-owned or controlled corporations.
Although we had earlier ruled in National Housing Corporation v. Juco,[11] that
employees of government-owned and/or controlled corporations, whether created by
special law or formed as subsidiaries under the general Corporation Law, are
governed by the Civil Service Law and not by the Labor Code, this ruling has been
supplanted by the 1987 Constitution. Thus, the said Constitution now provides:
The civil service embraces all branches, subdivision, instrumentalities, and agencies
of the Government, including government owned or controlled corporations
with original charter. (Article IX-B, Section 2[1])
In National Service Corporation (NASECO) v. National Labor Relations
Commission,[12] we had the occasion to apply the present Constitution in deciding
whether or not the employees of NASECO are covered by the Civil Service Law or
the Labor Code notwithstanding that the case arose at the time when the 1973
Constitution was still in effect. We ruled that the NLRC has jurisdiction over the
employees of NASECO on the ground that it is the 1987 Constitution that governs
because it is the Constitution in place at the time of the decision. Furthermore, we
ruled that the new phrase with original charter means that government-owned and
controlled corporations refer to corporations chartered by special law as
distinguished from corporations organized under the Corporation Code. Thus,
NASECO which had been organized under the general incorporation stature and a
subsidiary of the National Investment Development Corporation, which in turn was
a subsidiary of the Philippine National Bank, is excluded from the purview of the
Civil Service Commission.
We see no cogent reason to depart from the ruling in the aforesaid case.
In the case at bench, the National Housing Corporation is a government owned
corporation organized in 1959 in accordance with Executive Order No. 399,
otherwise known as the Uniform Charter of Government Corporation, dated January
1, 1959. Its shares of stock are and have been one hundred percent (100%) owned by
the Government from its incorporation under Act 1459, the former corporation
law. The government entities that own its shares of stock are the Government
Service Insurance System, the Social Security System, the Development Bank of the
Philippines, the National Investment and Development Corporation and the Peoples

Homesite and Housing Corporation. [13] Considering the fact that the NHA had been
incorporated under act 1459, the former corporation law, it is but correct to say that
it is a government-owned or controlled corporation whose employees are subject to
the provisions of the Labor Code. This observation is reiterated in recent case of
Trade Union of the Philippines and Allied Services (TUPAS) v. National Housing
Corporation,[14] where we held that the NHA is now within the jurisdiction of the
Department of Labor and Employment, it being a government-owned and/or
controlled corporation without an original charter. Furthermore, we also held that the
workers or employees of the NHC (now NHA) undoubtedly have the right to form
unions or employees organization and that there is no impediment to the holding of a
certification election among them as they are covered by the Labor Code.
Thus, the NLRC erred in dismissing petitioners complaint for lack of
jurisdiction because the rule now is that the Civil Service now covers only
government-owned or controlled corporations with original charters. [15] Having been
incorporated under the Corporation Law, its relations with its personnel are
governed by the Labor Code and come under the jurisdiction of the National Labor
Relations Commission.
One final point. Petitioners have been tossed from one forum to another for a
simple illegal dismissal case. It is but apt that we put an end to his dilemma in the
interest of justice.
WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089
dated March 14, 1991 is hereby REVERSED and the Decision of the Labor Arbiter
dated May 21, 1990 is REINSTATED.
SO ORDERED.

HOME DEVELOPMENT MUTUAL FUND represented by its acting President

and Chief Executive Officer, ATTY. ROMERO FEDERICO S.
QUIMBO, petitioner, vs. COMMISSION ON AUDIT represented by
the Chairman, GUILLERMO N. CARAGUE, respondent.

On 29 September 1997, State Auditor IV Delma M. Villaflor conducted a post

audit of the payment of P1,376,666.67 amelioration allowance to the DBPSC
personnel. She found that there was no legal basis for the grant of such allowance to
employees of an independent contractor and thus disallowed the same. [6]

The Case

The HDMF sought to lift the notice of disallowance in a letter dated 21

October 1997 addressed to Corporate Auditor Winnie Rose H. Encallado
(Encallado).[7] Encallado replied in a letter dated 12 November 1997 to HDMF
President and Chief Executive Officer, Ms. Zorayda Amelia C. Alonzo (Alonzo),
that she would not reconsider the disallowance. Encallado advised Alonzo to seek
further remedy with the COA by an appeal.[8]

Before the Court is a special civil action for certiorari[1] to reverse the
Decision dated 22 August 2002[2] and the Resolution dated 30 January 2003 [3] of the
Commission on Audit (COA). The COA sustained the decision of the Corporate
Audit Office, which affirmed the disallowance of payment of amelioration
allowance by the Home Development Mutual Fund (HDMF) to the DBP Service
Corporation (DBPSC) personnel.
The Antecedent Facts
The HDMF is a government-owned and controlled corporation created under
Presidential Decree No. 1752 (PD 1752), [4] as amended. On 25 March 1995, the
HDMF entered into a Contract for Manpower Services with DBPSC for a period
starting from 1 January 1995 to 31 December 1995 (1995 Contract). On 2 May
1996, the HDMF renewed the Contract for another year under the same terms and
conditions, from 1 January 1996 to 31 December 1996 (1996 Contract). The HDMF
again renewed the Contract on 18 March 1997 for a period starting from 1 January
1997 to 31 December 1997 (1997 Contract). The Contracts provide that DBPSC
shall supply HDMF temporary manpower services, such as the services rendered by
clerks, encoders, messengers and janitors, in accordance with the schedules required
by HDMF.
On 2 June 1997, the HDMF Board of Trustees approved Resolution No. 1313,
Series of 1997, granting amelioration allowance to its employees, including the
DBPSC personnel assigned to its head office. The grant covered employees who
were in HDMFs service on 31 December 1996, provided they were still in the
service at the time of its approval. The amelioration allowance was chargeable
against HDMFs 1996 approved budget. [5] The amelioration allowance, equivalent to
one month basic salary but not less than P10,000, was released on 24 June 1997.

Alonzo again moved for the reconsideration of the disallowance in a letter

dated 13 February 1998 to then COA Chairman Celso D. Gangan. [9] The COA, in a
letter dated 24 April 1998 sent by Commission Secretary Sofronio L. Flores, Jr.,
returned Alonzos letter without action for failure to comply with the provisions of
the 1997 Revised Rules of Procedure of the Commission on Audit.[10]
Alonzo wrote another letter dated 8 May 1998 to Encallado, justifying the
grant of the amelioration allowance and requesting reconsideration of the
disallowance.[11] Encallado denied Alonzos request in a letter dated 15 May 1998,
and recommended recourse by appeal to the Director of the Corporate Audit Office I
pursuant to the 1997 Revised Rules of Procedure of the COA. [12]
Alonzo filed a notice of appeal dated 20 May 1998. [13]
On 29 December 1998, the Corporate Audit Office (CAO) rendered a Decision
denying HDMFs appeal.[14] The CAO ruled:
This Office finds the foregoing contentions untenable. The doctrine of autonomy of
contracts is not challenged in the case at bar. Records show that the Contract for
Manpower Services dated March 18, 1997 which is being cited by Appellant to have
contained stipulations that HDMF could grant additional benefits to DBPSC
personnel is the Renewal Service Contract for the year 1997. This is the pivotal
point in this case since COA Auditor asserts that what has been paid on June 24,
1997 was the amelioration allowance for 1996. And this is corroborated by the
Affidavit dated October 17, 1997 of Mr. Vicente D. Julian, Jr. who is the Chief of
Division of the Benefits and Compensation, Human Resources Management and
Development Department, HDMF, that the proposal and subsequent Board Approval

(Board Resolution No. 1313, series 97) for the grant of an amelioration allowance
covers employees of the Fund as of December 31, 1996.
It is worth stressing that the 1996 Renewal Contract for Manpower Services did not
provide or stipulate that HDMF could grant additional allowance/benefits
whatsoever to DBPSC personnel who are under contract with HDMF.
Assuming arguendo that what has been paid on June 24, 1997 was the 1997
amelioration allowance, still the same is bereft of legal basis since Administrative
Order No. 365 dated October 10, 1997 which authorized the grant of amelioration
assistance to government personnel expressly prohibits payment of said benefit to
those serving under service contract (Section 1, AO 365). Such being the case, the
principle of vested right cannot be invoked since there is no legal right to receive the
allowance in question.
Premises considered, the within appeal of the Home Development Mutual Fund
(HDMF) is hereby denied. Accordingly, the disallowance on the payment of
amelioration allowance to DBP Service Corporation personnel assigned at HDMF
embodied under ND No. 97-006-101(97) in the aggregate amount of P1,376,666.67
is hereby affirmed. Likewise, ND No. 97-001-101(97) which pertains to
amelioration allowance paid to DBPSC personnel assigned at HDMF Baclaran
Branch is affirmed.[15]
Dissatisfied with the decision, the HDMF appealed to the COA for relief
through a petition for review.
The Ruling of the Commission on Audit
In its decision dated 22 August 2002, the COA affirmed the disallowance of
amelioration benefits to DBPSC personnel. The COA ruled:
The Director, Corporate Audit Office I correctly opined that under Section 2 of
Administrative Order No. 365, all Heads of NGAs, LGUs including GOCCs and
GFIs as well as their governing boards are enjoined and prohibited from
authorizing/granting amelioration assistance or any other similar benefit without
prior approval and authorization as specifically provided by the Office of the
President. Granting that Administrative Order No. 365 is not applicable in this case,
petitioners contention on the legality of the payment of amelioration allowance is
largely dependent on its contract with DBPSC. The Contract for Manpower Services
dated March 18, 1997 cited by petitioner to have contained stipulations that HDMF

could grant additional benefits to DBPSC personnel is actually the Renewal Service
Contract for the year 1997. The Original Service Contract in 1995 as well as the
Renewal Contract for 1996 did not contain any stipulation that DBPSC personnel
are allowed to receive benefits from HDMF. Records, however, disclosed that in an
affidavit dated October 17, 1997 executed by the Chief of Division of the Benefits
and Compensation, Human Resources Management and Development of the HDMF,
what has been paid on June 24, 1997 using the 1997 funds was the amelioration
allowance for the year 1996. Moreover, it is without doubt that the HDMF Board of
Trustees possesses the usual corporate powers for their effective governance.
However, unlike private corporations, government corporations are circumscribed
by laws which limit their governing boards power in the adoption of rules and
regulations as well as the authorization of expenditures. Every expenditure must
have a legal basis and should not be contrary to law, rules and regulations. The use
of 1997 funds to pay amelioration allowance for the previous year without prior
approval of the Office of the President is contrary to laws, rules and regulations. [16]
WHEREFORE, premises considered, the instant petition for review is hereby denied
for lack of merit. Accordingly, the disallowance of the amelioration allowance
granted to DBPSC personnel in the total amount of P1,376,666.67 is hereby
affirmed.[17]
In a resolution dated 30 January 2003, the COA denied HDMFs motion for
reconsideration and affirmed with finality its decision, prompting HDMF to come to
this Court for relief.
The Issues
In its memorandum, HDMF raises the following issues:
1. Whether Administrative Order No. 365 issued on October 10, 1997,
which expressly prohibits the payment of amelioration allowance to
those serving under service contract, has retroactive effect to the
payment made on June 24, 1997;
2. Whether the payment made in 1997 of the amelioration allowance for
1996, based on the stipulation for such benefit in the 1997 contract,
is valid;
3. Assuming that the COA correctly disallowed the amelioration
allowance for lack of legal basis, whether the COA should

nevertheless allow such payment in audit since HDMF paid the

amelioration allowance to the employees in good faith. [18]
HDMF points out that it paid the amelioration allowance to the DBPSC
personnel on 24 June 1997. Administrative Order No. 365 (AO 365), [19] prohibiting
the payment of amelioration allowance to persons serving under service contracts,
was issued only on 10 October 1997. Hence, AO 365 cannot apply retroactively to
the payment of amelioration allowance in 1996. HDMF asserts that the payment of
amelioration allowance to DBPSC personnel was part of its contractual obligation in
the 1997 Contract. Finally, HDMF maintains that the employees should retain the
amelioration allowance already paid following the ruling of this Court
in Association of Dedicated Employees of the Philippine Tourism Authority v.
COA.[20]
The COA[21] asserts that while the Contract between HDMF and DBPSC is the
law between the contracting parties, the Contract cannot prevail over existing laws
and regulations. Further, the COA insists that HDMF did not raise the defense of
good faith in the proceedings below. The COA also argues that the case HDMF cites
is not applicable to the present case for two reasons. First, the COA does not seek to
make the HDMF officers personally liable for the refund of the amelioration
allowance. Second, the DBPSC personnel are not government employees while the
employees in Association of Dedicated Employees of the Philippine Tourism
Authority were government employees. The COA also points out that existing laws
limit the power of the governing boards of government corporations to promulgate
rules, adopt budgets and authorize expenditures.

SECTION 1. All National Government Agencies, Government-Owned and

Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs),
and Local Government Units are hereby authorized to grant Amelioration Assistance
in the maximum amount of Seven Thousand Two Hundred Pesos (P7,200) each to
their personnel, regardless of salary and appointment status, who have rendered at
least four (4) months of service as of the payment of the said benefit except those
serving under service contract.
Personnel who rendered less than four (4) months of service shall be entitled to an
amount proportionate to the actual service rendered while part-time personnel shall
be entitled to one-half (1/2) of the benefit of a full-time personnel.
SECTION 2. Heads of NGAs, LGUs including GOCCs and GFIs as well as their
respective governing boards are hereby enjoined and prohibited from
authorizing/granting Amelioration Assistance or any other similar benefit
without prior approval and authorization via Administrative Order by the
Office of the President. Henceforth, anyone found violating any of the provisions
of this Order, including all officials/employees and the COA Resident Auditor of
such government entity found to have taken part thereof, shall be accordingly and
severely dealt with in accordance with the applicable provisions of existing
administrative and penal laws.
Consequently, all administrative authorizations granting any and all forms of
additional compensation paid outside of the prescribed basic salary under RA 6758
that are inconsistent with the legislated policy on the matter or are not covered by
any legislative action are hereby revoked.

The Ruling of the Court

The petition is partly meritorious.
The COA correctly ruled that the grant of amelioration allowance to DBPSC
personnel has no legal basis.
The Applicability of Administrative Order No. 365
AO 365 authorized the grant of amelioration assistance to all government
personnel for the fiscal year 1997, and prohibited payments of similar benefits in
future years unless authorized by the President. AO 365 provides:

SECTION 3. All government entities which authorized the payment of

Amelioration Assistance in 1997 in excess of the amount authorized herein are
hereby directed to cause the refund of the excess within a period of three (3)
months to commence after the issuance of this Order.
SECTION 4. Entities are hereby allowed to pay the benefit herein authorized
out of any available savings for FY 1997. In case of deficiency, the benefit shall be
partially and uniformly implemented. No additional funds for the purpose shall be
released by the Department of Budget and Management. (Emphasis supplied)
AO 365 took effect on 10 October 1997. The HDMF Board of Trustees
approved on 2 June 1997 Resolution No. 1313, Series of 1997, granting the
amelioration allowance. A law or regulation has no retroactive application unless the

law or regulation expressly provides for retroactivity.[22] Article 4 of the Civil Code
is clear on the matter: Laws shall have no retroactive effect, unless the contrary is
provided. The Court explained the reason for the law in Lopez and Lopez v. Crow:
[23]

x x x According to this provision of law, in order that a law may have retroactive
effect it is necessary that an express provision to this effect be made in the law,
otherwise nothing should be understood which is not embodied in the law. x x x.
Furthermore, it must be borne in mind that a law is a rule established to guide our
actions with no binding effect until it is enacted, wherefore, it has no application to
past times but only to future time, and that is why it is said that the law looks to the
future only and has no retroactive effect unless the legislator may have formally
given that effect to some legal provisions.
AO 365 does not provide for any retroactive effect. Besides, AO 365 clearly
applies only to FY 1997 since Sections 3 and 4 of AO 365 refer only to amelioration
allowance paid in 1997 from any available savings for FY 1997. Thus, AO 365
cannot apply to 1996 and prior years.

development interventions. In granting amelioration allowance to the DBPSC

personnel, HDMF stretched the scope of the welfare provision beyond its meaning.
The COA points out that Section 2 of the Omnibus Rules does not provide for
any grant of allowance. Even if we consider welfare as including economic welfare,
[27]
the grant of amelioration allowance should cover only the regular employees of
HDMF. The Omnibus Rules specifically apply only to all officers and employees
both in the career and non-career service. [28] The DBPSC personnel are neither
career nor non-career service employees. They are not even employees of HDMF or
the government. They are employees of DBPSC, a private corporation, which
temporarily assigned them to HDMF to perform DBPSCs contractual obligations to
HDMF. The 1995 Contract clearly stipulates this, as follows:
02. It is expressly understood and agreed that the employees assigned by DBPSC to
the FUND are, for all legal intents and purposes, the employees of DBPSC and not
of the FUND, hence the FUND does not maintain any employee-employer
relationship with said personnel of DBPSC. However, DBPSC employees assigned
to the FUND shall be subject to the latters existing office rules, regulations and
decorum.[29]

The Authority of HDMF to Grant Amelioration Allowance

The 1996 and 1997 Contracts reiterated the same stipulation. [30]
In approving the grant of amelioration allowance, the HDMF relied on Section
2,[24] Rule VIII of the Omnibus Rules (Omnibus Rules) [25] Implementing Executive
Order No. 292.[26] Section 2 of the Omnibus Rules provides:
SEC. 2. Each department or agency shall prepare a career and personnel
development plan which shall be integrated into a national plan by the Commission
which shall serve as the basis for all career and personnel development activities in
the government. The Career and Personnel Development Plan shall include
provisions on merit promotions, performance evaluation; in-service training;
overseas and local scholarships and training grants; suggestions, incentive awards
systems; provisions for welfare, counseling, recreation and similar services; and
other human resource development interventions such as on the job training,
counseling, coaching, job rotation, secondment, job swapping and others.
This provision, however, refers to career and personnel development plans. It
covers merit promotions, performance evaluation, in-service training, scholarships
and training grants, suggestions and incentive awards systems, and provisions for
welfare, counseling, recreation and similar services, as well as other human resource

HDMF also invokes Section 12 of its charter, Presidential Decree No. 1752, as
amended, to support its cause:
SEC. 12. Powers of the Board. The Board shall have the following powers:
xxx
(c) To authorize expenditures of the Fund in the interest of effective administration
and operations, to adopt from time to time the budget for said purposes.
Such power, however, is subject to existing laws and does not give the HDMF
Board blanket authority to adopt budgets and authorize payments contrary to law.
Presidential Decree No. 985 (PD 985), [31] which took effect on 22 August
1976, established a system of compensation standardization and position
classification in the national government for all departments, bureaus, agencies, and

offices including government-owned or controlled corporations and financial

institutions.[32] Section 2 of PD 985 provides that:
x x x notwithstanding a standardized salary system established for all employees,
additional financial incentives may be established by government corporation and
financial institutions for their employees to be supported fully from their corporate
funds and for such technical positions as may be approved by the President in
critical government agencies. (Emphasis supplied)
PD 985 authorizes additional financial incentives only to employees of
government corporations and financial institutions. Presidential Decree No. 1597
(PD 1597),[33] which took effect on 11 June 1978, reiterates the same condition.
Section 5 of PD 1597 provides that:
x x x (a)llowances, honoraria and other fringe benefits which may be granted
to government employees, whether payable by their respective offices or by other
agencies of government, shall be subject to the approval of the President upon
recommendation of the Commissioner of the Budget. x x x .
Republic Act No. 6758 (RA 6758)[34] further strengthened PD 985 and PD
1597. RA 6758 integrated all allowances, except those enumerated, in the
standardized salary rates prescribed, thus:
SEC. 12. Consolidation of Allowances and Compensation. All allowances, except
for representation and transportation allowances; clothing and laundry allowances;
subsistence allowance of marine officers and crew on board government vessels and
hospital personnel; hazard pay; allowances of foreign service personnel stationed
abroad; and such other additional compensation not otherwise specified herein as
may be determined by the DBM, shall be deemed included in the standardized salary
rates herein prescribed. Such other additional compensation, whether in cash or in
kind, being received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.
True, RA 6758 does not specifically prohibit the grant of other allowances.
However, Section 21 of RA 6758 provides that the provisions of PD 985 and PD
1597, which are not expressly modified, repealed or otherwise inconsistent with RA
6758 shall remain in effect.
Finally, on 31 May 1988, then President Corazon C. Aquino issued
Memorandum Order No. 177.[35] Section 3 of the Memorandum Order provides:

SEC. 3. Compliance with Legal Requirements. All government-owned or controlled

corporations are henceforth required to comply strictly with laws, rules and
regulations governing the grant of salary increases, allowances and other benefits to
their officials and employees. The head of the corporations shall be held
responsible for any unauthorized grant without prejudice to requiring the refund by
the employees concerned. (Emphasis supplied)
Clearly, the HDMF Board does not have the authority, except for 1997, to
grant amelioration allowance to its own employees. Nothing in any existing law or
presidential issuance grants authority to the HDMF Board to pay amelioration
allowance to private employees of HDMFs service contractors.
The Contractual Obligation of HDMF
The HDMF insists that the Contract obligates it to pay amelioration allowance
to DBPSC personnel assigned to HDMF.
Contrary to the COAs impression in its Decision of 22 August 2002, the
HDMF did not use its 1997 funds to pay the amelioration allowance for 1996.
Vicente D. Julian Jr., Chief of Division of the Benefits and Compensation of the
Human Resources Management and Development Department, clarified that the
amelioration allowance covers employees as of 31 December 1996 and is chargeable
against HDMFs 1996 approved budget. He admitted there was an oversight in
preparing the budget and the calendar year cited referred to the preparation year of
the request instead of the year covered by the amelioration allowance. [36]
Since the amelioration allowance was for the year 1996, the applicable
contract was the 1996 Contract, which merely adopted the same terms and
conditions of the 1995 Contract. The contractual obligation invoked by HDMF is
not part of the 1995 and 1996 Contracts. The contractual obligation is part of the
1997 Contract, which stipulates:
7. The FUND, based on HDMF Board approval, may grant additional
benefits/emoluments/bonuses to detailed DBPSC personnel. The grant may be in
cash or in kind. Given the one-time nature of the grants, these shall not form part of
the billing rate.[37]
Considering that the amelioration allowance was for the year 1996, HDMF
could not justify extending the allowance to DBPSC personnel by invoking the 1997
contract. The stipulation states that HDMF may grant additional

benefits/emoluments/bonuses to detailed DBPSC personnel. The use of the

word may in contrast to shall used in the other provisions of the contract show that
the grant of additional benefits, emoluments or bonuses is not a mandatory
obligation of HDMF.
The 1996 Contract, which is a renewal of the 1995 Contract under the same
terms and conditions, provides for the following consideration:
ARTICLE V
CONSIDERATION
01. For and in consideration of the service/s rendered. (sic) The Fund hereby agrees
to pay DBPSC the agreed amount in pesos for services rendered in accordance with
the statement of billing rates attached herewith as Annex A and forming part of the
contract. The rate is based on an 8 hour work schedule, from Monday to Friday and
includes the ten (10%) percent Value Added Tax. However, the rate shall be
adjusted accordingly in case of future government mandated wage increase and
other charges upon written request by DBPSC and approved by the FUND;
Provided however, that tardiness, undertime, half-days and absences incurred by the
employees assigned to the FUND shall be deducted accordingly from the monthly
billing of the DBPSC.
x x x.
ARTICLE VI
MANNER OF PAYMENT/BILLING
xxx
02. DBPSC shall be solely responsible for the payment of the employees monthly
wages, which shall be paid every 15th and end of the month.[38] (Emphasis supplied)
The 1996 Contract does not obligate HDMF to pay the amelioration
allowance, which is not a mandated wage increase. The payment of such allowance
in 1997 for services rendered in 1996 is an ex gratia payment. Such payment
constitutes a gratuity for past services.

The Applicability of Blaquera v. Alcala

The COA contends that the HDMF raised the defense of good faith for the
first time on appeal. The COA is mistaken. While HDMF invoked the defense of
good faith only in the motion for reconsideration before the COA, it is not accurate
to say that the HDMF is changing the theory of its case at this late stage of the
proceedings. The COA had an opportunity to pass upon the issue. However, the
COA did not squarely rule on the defense of good faith in its resolution of 30
January 2003.
We rule that Blaquera v. Alcala[39] applies in this case.
In Blaquera, the COA disallowed the productivity incentive bonus granted to
officials and employees of different government departments and agencies.
However, the Court, finding that the parties acted in good faith, no longer required
the government officials and employees to refund the incentive benefits they
received, thus:
Considering, however, that all the parties here acted in good faith, we cannot
countenance the refund of subject incentive benefits for the year 1992, which
amounts the petitioners have already received. Indeed, no indicia of bad faith can be
detected under the attendant facts and circumstances. The officials and chiefs of
offices concerned disbursed such incentive benefits in the honest belief that the
amounts given were due to the recipients and the latter accepted the same with
gratitude, confident that they richly deserve such benefits. [40]
In the case before us, the HDMF Board also acted in good faith. The Minutes
of the HDMF Board meeting on 2 June 1997 showed that the grant of amelioration
allowance originally covered only direct-hired contractual employees of the HDMF,
or those directly hired by HDMF such as doctors and nurses. The grant of
amelioration allowance did not include temporary manpower supplied by agencies
like the DBPSC. There was a suggestion to delete the word direct to include
employees of manpower agencies. A trustee seconded the suggestion in the interest
of equity and fair play and on the ground that the DBPSC personnel perform the
work normally done by regular employees.
Ma. Clara P. Fragada (Fragada), Senior Vice President of the Technical
Support Group, also explained to the HDMF trustees that under a provision of the
Contract, the HDMF may grant additional benefits or emoluments to DBPSC

personnel detailed with the HDMF.[41] Fragada did not specify which contract she
was referring to although she was obviously referring to the 1997 Contract.
The HDMF trustees did not bother to check if the contractual stipulation
Fragada cited was also part of the 1996 Contract considering that the amelioration
allowance was for the year 1996. There was also no evidence that Fragada knew that
the stipulation was not in the 1996 Contract. The HDMF trustees were negligent in
making a payment for services rendered in 1996 without verifying whether the 1996
Contract required such payment. However, the HDMF trustees did not act with
malice or in bad faith in making such payment. They acted in the honest but
mistaken belief that the DBPSC personnel may be granted the same benefits
accruing to regular HDMF employees. Obviously, the HDMF trustees should have
exercised more diligence in their work.
The DBPSC personnel also acted in good faith. It is true that they are not
government employees but employees of an independent contractor. However, they
performed the work of regular government employees. They received their
amelioration allowances believing that they deserved the benefit, which is actually a
gratuity since it was an ex gratia payment for past services. Hence, applying by
analogy the ruling in Blaquera, the DBPSC personnel should no longer refund the
amelioration allowances they received from HDMF.
WHEREFORE, we AFFIRM with MODIFICATION the Decision dated 22
August 2002 and Resolution dated 30 January 2003 of the Commission on Audit.
The personnel of the DBP Service Corporation need not refund the amelioration
allowances they received pursuant to Board Resolution No. 1313, Series of 1997.
SO ORDERED.

PNB vs. TEJANO

In this petition for review,[1] the Philippine National Bank assails the January 3,
2006 Decision[2] of the Court of Appeals in CA-G.R. SP No. 50084, which reversed
Resolution Nos. 980716 and 983099 issued by the Civil Service Commission,
respectively dated April 14, 1998 and December 7, 1998, and referred the case back to
said office for further proceedings. The assailed Resolutions, in turn, dismissed
respondent Cayetano A. Tejanos appeal from the resolution of the Board of Directors of
the Philippine National Bank which found him guilty of grave misconduct in connection
with a number of transactions with certain corporate entities.
The case stems from a number of alleged irregular and fraudulent transactions made by
respondent Cayetano A. Tejano, Jr. supposedly with the participation of eight (8) other
employees of petitioner Philippine National Bank (PNB) in its branch in Cebu City
namely Ma. Teresa Chan, Marcelino Magdadaro, Douglasia Canuel, Novel Fortich,
Jacinto Ouano, Quirubin Blanco, Manuel Manzanares and Pedrito Ranile. Respondent,
together with the other employees, allegedly committed grave misconduct, gross neglect
of duty, conduct grossly prejudicial to the best interest of the service and acts violative of
Republic Act No. 3019, relative to the corporate accounts of and transactions with Pat
International Trading Corporation (PITC), Khun Tong International Trading Corporation
(KITC), Pat Garments International Corporation (PGIC), Aqua Solar Trading
Corporation, Dacebu Traders and Exporters, Mancao Mercantile Co., Inc. and V&G
Better Homes Subdivision. All of these transactions transpired at the time that PNB was
still a government-owned and controlled corporation.
Respondent, who was then the Vice-President and Manager of the bank, and the eight
other employees were administratively charged before the PNB Management Hearing
Committee on February 24 and March 17, 1994.[3] At the close of the hearing on the
merits, the Committee found that with respect to respondent, he was guilty of gross
misconduct in misappropriating the funds of V&G and of gross neglect in extending
unwarranted credit accommodations to PITC, PGIC and KITC which must serve as an
aggravating circumstance. The Committee then recommended that respondent be meted
the penalty of forced resignation without forfeiture of benefits. [4]
The PNB Board of Directors differed. In its Resolution No. 88[5] dated June 21,
1995, it found that respondents gross neglect in giving unwarranted credit to PITC, PGIC
and KITC must serve as an aggravating circumstance in relation to the offense of grave
misconduct consisting of misappropriation of V&G funds and must serve the penalty of
forced resignation with forfeiture of benefits.[6]
It appears that only herein respondent sought reconsideration but the Board of Directors,
in its Resolution No. 107,[7] denied the same. Thereafter, on September 21, 1995,
respondent appealed to the Civil Service Commission (CSC) [8] and, on October 19, 1995,
he submitted his Memorandum on Appeal.[9]
In the meantime, on May 27, 1996, the PNB had ceased to be a government-owned and
controlled corporation, and in view of its conversion into a private banking institution by
virtue of Executive Order (E.O.) No. 80. [10] Despite this development, the CSC, on April

14 1998, issued Resolution No. 980716 [11] dismissing respondents appeal for being filed
out of time.
Respondent filed a motion for reconsideration [12] on which the CSC required
petitioner to comment. In its Comment, petitioner theorized that even granting
respondents appeal was filed on time, the same must, nevertheless, be dismissed on
account of the privatization of PNB which thereby removed the case from the jurisdiction
of the CSC. The CSC found this argument meritorious and, subsequently, in its
Resolution No. 983099[13] dated December 7, 1998, it denied respondents reconsideration
on that ground.
[14]

Respondent elevated the matter to the Court of Appeals on petition for review,
docketed as CA-G.R. SP No. 50084.

Before the appellate court, respondent, on the one hand, ascribed error to the
CSC in denying due course to his appeal on the basis of the privatization of PNB
inasmuch as the incident subject of the case had transpired way back in 1992, when the
bank was still a government-owned and controlled corporation. He particularly noted that
the CSC, before the privatization of the bank, had already acquired jurisdiction over the
appeal upon the filing thereof and subsequent submission of the memorandum on appeal.
This, according to respondent, negated petitioners theory that the CSC could no longer
assume jurisdiction and dispose of the appeal on the merits, especially considering that
jurisdiction once acquired generally continues until the final disposition of the case. [15] On
the other hand, petitioner argued in essence that although the jurisdiction to act on the
appeal must continue until the final disposition of the case, this rule admits of exceptions
as where, in the present case, the law must be construed in a way as to operate on actions
pending before its enactment.[16]
The Court of Appeals found merit in respondents appeal. On January 3, 2006,
it issued the assailed Decision reversing the twin resolutions of the CSC. The appellate
court pointed out that respondents appeal before the CSC had been filed on time and that
the said commission had not lost jurisdiction over it despite the supervening privatization
of PNB. But inasmuch as the assailed Resolutions did not permeate the merits of
respondents appeal, the appellate court found it wise to remand the case to the CSC for
further proceedings. It disposed of the appeal as follows:
WHEREFORE, premises considered, the instant petition
for review under Rule 43 of the Rules of Court is hereby
GRANTED. ACCORDINGLY, Resolution No. 980716 dated April
14, 1998 and Resolution No. 983099 dated December 7, 1998 of the
Civil Service Commission are hereby REVERSED and the case is
remanded to the Civil Service Commission for further proceedings.
SO ORDERED.[17]
Petitioners motion for reconsideration was denied.[18] Hence, it filed the instant petition
for review bearing the same issue as that raised previously.

At the core of the controversy is the question of whether E.O. No. 80 has the
effect of removing from the jurisdiction of the CSC the appeal of respondent which was
already pending before the CSC at the time the said law converted PNB into a private
banking institution.Petitioner is insistent that, indeed, the law does have that effect, and
this argument is perched on Section 6 of E.O. No. 80, which materially provides that the
bank would cease to be a government-owned and controlled corporation upon the
issuance of its articles of incorporation by the Securities and Exchange Commission and
would no longer be subject to the coverage of both the CSC and the Commission on
Audit.[19] Petitioner believes that while indeed jurisdiction ordinarily continues until the
termination of the case, it advances the opinion that the rule does not apply where the law
provides otherwise or where the said law intends to operate on cases pending at the time
of its enactment.[20]
For his part, respondent submits that Section 6 of E.O. No. 80 does not provide for the
transfer of jurisdiction over his pending appeal from the CSC to another administrative
authority, and that neither does the provision authorize its retroactive application in a way
that would deprive the CSC of jurisdiction over cases already pending before it prior to
its effectivity.[21] Additionally, he invokes estoppel against petitioner inasmuch as the
latter has actively participated in the proceedings before the CSC and, hence, was already
barred from raising the issue of jurisdiction, and alleges that petitioners present recourse
was taken merely to cause delay in the final resolution of the controversy.[22]
We draw no merit in the petition.
In essence, Section 6 of E.O. No. 80, also known as the Revised Charter of
PNB, treats of the effects of converting the bank into a private financial and banking
institution. It states:
Section 6. Change in Ownership of the Majority of the
Voting Equity of the Bank. - When the ownership of the majority of
the issued common voting shares passes to private investors, the
stockholders shall cause the adoption and registration with the
Securities and Exchange Commission of the appropriate Articles of
Incorporation and revised by-laws within three (3) months from
such transfer of ownership. Upon the issuance of the certificate of
incorporation under the provisions of the Corporation Code, this
Charter shall cease to have force and effect, and shall be deemed
repealed. Any special privileges granted to the Bank such as the
authority to act as official government depositary, or restrictions
imposed upon the Bank, shall be withdrawn, and the Bank shall
thereafter be considered a privately organized bank subject to the
laws and regulations generally applicable to private banks. The
Bank shall likewise cease to be a government-owned or
controlled corporation subject to the coverage of service-wide
agencies such as the Commission on Audit and the Civil Service
Commission.

The fact of the change of the nature of the Bank from a

government-owned and controlled financial institution to a
privately-owned entity shall be given publicity.[23]
In a language too plain to be mistaken, the quoted portion of the law only
states no more than the natural, logical and legal consequences of opening to private
ownership the majority of the banks voting equity. This is very evident in the title of the
section called Change in Ownership of the Majority of the Voting Equity of the
Bank. Certainly, the transfer of the majority of the banks voting equity from public to
private hands is an inevitable effect of privatization or, conversely, the privatization of the
bank would necessitate the opening of the voting equity thereof to private
ownership. And as the bank ceases to be government depository, it would, accordingly be
coming under the operation of the definite set of laws and rules applicable to all other
private corporations incorporated under the general incorporation law. Perhaps the aspect
of more importance in the present case is that the bank, upon its privatization, would no
longer be subject to the coverage of government service-wide agencies such as the CSC
and the Commission on Audit (COA).
By no stretch of intelligent and reasonable construction can the provisions in
Section 6 of E.O. No. 80 be interpreted in such a way as to divest the CSC of jurisdiction
over pending disciplinary cases involving acts committed by an employee of the PNB at
the time that the bank was still a government-owned and controlled corporation. Stated
otherwise, no amount of reasonable inference may be derived from the terms of the said
Section to the effect that it intends to modify the jurisdiction of the CSC in disciplinary
cases involving employees of the government.
Sound indeed is the rule that where the law is clear, plain and free from
ambiguity, it must be given its literal meaning and applied without any interpretation or
even construction.[24] This is based on the presumption that the words employed therein
correctly express its intent and preclude even the courts from giving it a different
construction.[25] Section 6 of E.O. No. 80 is explicit in terms. It speaks for itself. It does
not invite an interpretation that reads into its clear and plain language petitioners adamant
assertion that it divested the CSC of jurisdiction to finally dispose of respondents pending
appeal despite the privatization of PNB.
In the alternative, petitioner likewise posits that the portion of Section 6 of the
E.O. No. 80, which states that the PNB would no longer be subject to the coverage of
both the COA and the CSC, must be understood to be applicable to cases already pending
with the CSC at the time of the banks conversion into a private entity. We are not swayed.
While there is no denying that upon its privatization, the bank would
consequently be subject to laws, rules and regulations applicable to private corporations
which is to say that disciplinary cases involving its employees would then be placed
under the operation of the Labor Code of the Philippines still, we cannot validate
petitioners own interpretation of Section 6 of E.O. No. 80 that the same must be applied
to respondents pending appeal with the CSC and that, resultantly, the CSC must abdicate
its appellate jurisdiction without having to resolve the case to finality.

It is binding rule, conformably with Article 4 of the Civil Code, that, generally,
laws shall have only a prospective effect and must not be applied retroactively in such a
way as to apply to pending disputes and cases. This is expressed in the familiar legal
maxim lex prospicit, non respicit (the law looks forward and not backward.) [26] The
rationale against retroactivity is easy to perceive: the retroactive application of a law
usually divests rights that have already become vested or impairs the obligations of
contract and, hence, is unconstitutional. [27]Although the rule admits of certain welldefined exceptions[28] such as, for instance, where the law itself expressly provides for
retroactivity,[29] we find that not one of such exceptions that would otherwise lend
credence to petitioners argument obtains in this case. Hence, in other words, the fact that
Section 6 of E.O. No. 80 states that PNB would be removed from the coverage of the
CSC must be taken to govern acts committed by the banks employees after privatization.
Moreover, jurisdiction is conferred by no other source than law. Once
jurisdiction is acquired, it continues until the case is finally terminated. [30] The
disciplinary jurisdiction of the CSC over government officials and employees within its
coverage is well-defined in Presidential Decree (P.D.) No. 807, [31] otherwise known
as The Civil Service Decree of the Philippines. Section 37[32] thereof materially provides
that the CSC shall have jurisdiction over appeals in administrative disciplinary cases
involving the imposition of the penalty of suspension for more than thirty days; or fine in
an amount exceeding thirty days salary; demotion in rank or salary or transfer, removal or
dismissal from office.
It bears to stress on this score that the CSC was able to acquire jurisdiction
over the appeal of respondent merely upon its filing, followed by the submission of his
memorandum on appeal. From that point, the appellate jurisdiction of the CSC at once
attached, thereby vesting it with the authority to dispose of the case on the merits until it
shall have been finally terminated.
Petitioner, however, takes exception. It notes that, while indeed the general
rule is that jurisdiction continues until the termination of the case and is not affected by
new legislation on the matter, the rule does not obtain where the new law provides
otherwise, or where said law is intended to apply to actions pending before its
enactment. Again, petitioner insists that E.O. No. 80 is a new legislation of a character
belonging to one of the exceptions inasmuch as supposedly Section 6 thereof expressly
sanctions its application to cases already pending prior to its enactment particularly that
provision which treats of the jurisdiction of the CSC. [33]
The argument is unconvincing.
In Latchme Motoomull v. Dela Paz, [34] the Court had dealt with a situation
where jurisdiction over certain cases was transferred by a supervening legislation to
another tribunal. Latchme involved a perfected appeal from the decision of the SEC and
pending with the Court of Appeals at the time P.D. No. 902-A was enacted which
transferred appellate jurisdiction over the decisions of the SEC from the Court of Appeals
to the Supreme Court. On the question of whether the tribunal with which the cases were

pending had lost jurisdiction over the appeal upon the effectivity of the new law, the
Court ruled in the negative, citing the earlier case of Bengzon v. Inciong,[35] thus:
The rule is that where a court has already obtained and is
exercising jurisdiction over a controversy, its jurisdiction to proceed
to the final determination of the cause is not affected by new
legislation placing jurisdiction over such proceedings in another
tribunal. The exception to the rule is where the statute expressly
provides, or is construed to the effect that it is intended to
operate as to actions pending before its enactment. Where a
statute changing the jurisdiction of a court has no retroactive effect,
it cannot be applied to a case that was pending prior to the
enactment of the statute.[36]
Petitioner derives support from the exceptions laid down in the cases
of Latchme Motoomull and Bengzon quoted above. Yet, as discussed above, the
provisions in Section 6 of E.O. No. 80 are too clear and unambiguous to be interpreted in
such a way as to abort the continued exercise by the CSC of its appellate jurisdiction over
the appeal filed before the privatization of PNB became effective. Suffice it to say that
nowhere in the said Section can we find even the slightest indication that indeed it
expressly authorizes the transfer of jurisdiction from the CSC to another tribunal over
disciplinary and administrative cases already pending with the said Commission even
prior to the enactment of the law.
All told, the Court finds that no error was committed by the Court of Appeals
in reversing the twin resolutions issued by the CSC. The Court also agrees that because
the merits of respondents appeal with the said Commission have not been completely
threshed out, it is only correct and appropriate to remand the case back to it for further
proceedings.
With this disquisition, the Court finds it unnecessary to discuss the other issues
propounded by the parties.
WHEREFORE, the petition is DENIED. The January 3, 2006 Decision of the
Court of Appeals in CA-G.R. SP No. 50084, which reversed and set aside CSC
Resolution Nos. 980716 and 983099 and ordered the remand of the case to the CSC for
further proceedings, is hereby AFFIRMED.
SO ORDERED.

BARRO vs. COMELEC

This is a petition for certiorari[1] alleging that the First Division of
the Commission on Elections (COMELEC) committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the Orders dated November 25,
2008 and January 9, 2009. The Order[2] dated November 25, 2008 dismissed petitioners
appeal for failure to pay the appeal fee prescribed by the COMELEC Rules of Procedure
within the reglementary period. The Order[3] dated January 9, 2009 denied petitioners
motion for reconsideration.
The facts are as follows:
Petitioner Carmelinda C. Barro and private respondent Elpedio P. Continedas,
Jr. were candidates for Punong Barangay of Barangay Plaridel, Palompon, Leyte during
the October 29, 2007 synchronized Barangay and Sangguniang Kabataan Elections.
Petitioner garnered 150 votes, while respondent garnered 149 votes. The Barangay Board
of Canvassers proclaimed petitioner as the duly elected Punong Barangay, winning by a
margin of only one vote.
On November 5, 2007, private respondent filed an election protest before the
Municipal Trial Court of Palompon, Leyte (trial court), impugning the result of the
canvass in two precincts of the barangay.
After the revision of ballots, the trial court found that petitioner and respondent
both garnered 151 votes.
In its Decision[4] dated May 5, 2008, the trial court held:
In sum, the Protestant is credited with three (3) votes and
the Protestee with two (2) votes of the contested votes.
The three (3) credited votes added to the 148 votes of the
protestant equals 151 votes. The two (2) credited votes added to the
149 votes of the protestee equals 151 votes. The protestant and the
protestee, therefore, received the same number of votes.

It appearing that the Protestant and the Protestee received

the same number of votes for the position of Barangay Chairman of
Brgy. Plaridel, Palompon, Leyte, there shall be a drawing of lots and
the party favored by luck shall be proclaimed as the duly-elected
Barangay Chairman of Barangay Plaridel, Palompon, Leyte.[5]
On May 13, 2008, petitioner filed a Notice of Appeal [6] with the trial court and
she stated in her petition that she also paid the appeal fee required under Section 9, Rule
14 of the Rules of Procedure in Election Contests Before the Courts Involving Elective
Municipal and Barangay Officials (A.M. No. 07-4-15-SC).[7] Thereafter, the records of
the case were forwarded to the COMELEC.

On November 25, 2008, the First Division of the COMELEC issued an Order
dismissing petitioners appeal for failure to pay the appeal fee, thus:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC
Rules of Procedure which provide for the payment of appeal fee in
the amount of P3,000.00 within the period to file the notice of
appeal, and Section 9 (a), Rule 22 of the same Rules, which
provides that failure to pay the correct appeal fee is a ground for the
dismissal of the appeal, the Commission (First Division)
RESOLVED as it hereby RESOLVES to DISMISS the instant
appeal for Protestee-AppeIlant's failure to pay the appeal fee as
prescribed by the Comelec Rules of Procedure within the five (5)day reglementary period.[8]
On December 15, 2008, petitioner filed a Motion for Reconsideration [9] of the
Order dated November 25, 2008. On the same date, she also posted Postal Money Order
Nos. A0820039317; B0810040373 and J1350301774 in the total sum of P3,200.00
payable to the Cash Division of the COMELEC to cover the appeal fee.
Petitioners motion for reconsideration was denied by the First Division of the
COMELEC in its Order dated January 9, 2009, thus:
Protestee-Appellant's "Motion for Reconsideration" filed
thru registered mail on 15 December 2008 and received on 23
December 2008, seeking reconsideration of the Commission's (First
Division) Order dated 25 November 2008, is hereby DENIED for
failure of the movant to pay the necessary motion fees under Sec. 7
(f), Rule 40 of the Comelec Rules of Procedure as amended by
Comelec Resolution No. 02-0130. The Judicial Records DivisionECAD, this Commission, is hereby directed to return to the
protestee-appellant the Postal Money Order Nos. A0820039317 in
the amount of two thousand pesos (P2,000.00); B0810040373 in the
amount of one thousand pesos (P1,000.00) and J1350301774 in the
amount of two hundred pesos (P200.00) representing his belated
payment of appeal fee.[10]
On February 19, 2009, petitioner filed this petition raising the following issues:
1.

WHETHER OR NOT THE [FIRST DIVISION OF THE

COMELEC]
COMMITTED
GRAVE
ABUSE
OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE APPEAL.

2.

WHETHER OR NOT THE [FIRST DIVISION OF THE

COMELEC]
COMMITTED
GRAVE
ABUSE
OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF

JURISDICTION IN DENYING THE MOTION

RECONSIDERATION FILED BY PETITIONER.
3.

FOR

WHETHER OR NOT THE [FIRST DIVISION OF THE

COMELEC]
COMMITTED
GRAVE
ABUSE
OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ACTING ON THE MOTION FOR
RECONSIDERATION WITHOUT ELEVATING THE SAME
TO THE COMELEC EN BANC.[11]

The first issue is whether or not the First Division of the COMELEC gravely
abused its discretion in dismissing petitioners appeal.
Grave abuse of discretion implies a capricious and whimsical exercise of
judgment amounting to lack of jurisdiction or an arbitrary and despotic exercise of power
because of passion or personal hostility.[12] The grave abuse of discretion must be so
patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law.
[13]

The Court notes that in petitioners Notice of Appeal, [14] she manifested
payment of the appeal fees and other lawful fees required for the appeal per Official
Receipt Nos. 7719538 and 7719488. However, the receipts were not attached to the
record of the case. In her Petition, petitioner stated that when she filed her Notice of
Appeal on May 13, 2008, she also paid the appeal fee required under Section 9, Rule 14
of A.M. No. 07-4-15-SC.[15] In her Reply,[16] petitioner also stated that she relied on the
provision of Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC,[17] which took effect on
May 15, 2007, and that she believed in good faith that the said new Rules of Procedure
repealed the COMELEC Rules.
Based on petitioners pleadings and the fact that the trial court gave due course
to petitioners appeal, it may be presumed that petitioner paid the appeal fee of P1,000.00
to the trial court simultaneously with the filing of the Notice of Appeal, despite absence
of the receipt showing payment of the appeal fee of P1,000.00.
Petitioner contends in her Reply [18] that the recent case of Jerry B. Aguilar v.
Commission on Elections, et al.,[19] applies to her case. The Court agrees with petitioner.
In Aguilar, petitioner Aguilar won as barangay chairman in the October 29,
2007 barangay elections. An election protest was filed against him with the municipal
trial court. The municipal trial court found that Aguilar lost by a margin of one vote;
hence, his proclamation was annulled. On April 21, 2008, Aguilar filed a Notice of
Appeal and paid the appeal fee of P1,000.00 to the municipal trial court in accordance
with A.M. No. 07-4-15-SC. The First Division of the COMELEC dismissed his appeal
pursuant to Section 9 (a), Rule 22 of the COMELEC Rules of Procedure for non-payment
of the appeal fee of P3,000.00 as required in Sections 3 and 4, Rule 40 of the same
Rules. His first and second motions for reconsideration were denied by the First Division
of the COMELEC. He filed a petition for certiorari with this Court, which held:
xxxx

With the promulgation of A.M. No. 07-4-15-SC, the

previous rule that the appeal is perfected only upon the full payment
of the appeal fee, now pegged at P3,200.00, to the COMELEC Cash
Division within the period to appeal, as stated in the COMELEC
Rules of Procedure, as amended, no longer applies.
It thus became necessary for the COMELEC to clarify the
procedural rules on the payment of appeal fees. For this purpose, the
COMELEC issued on July 15, 2008, Resolution No. 8486, which
the Court takes judicial notice of.
xxxx
x x x The appeal to the COMELEC of the trial court's decision
in election contests involving municipal and barangay officials
is perfected upon the filing of the notice of appeal and the
payment of the P1,000.00 appeal fee to the court that rendered
the decision within the five-day reglementary period. The nonpayment or the insufficient payment of the additional appeal fee
of P3,200.00 to the COMELEC Cash Division, in accordance with
Rule 40, Section 3 of the COMELEC Rules of Procedure, as
amended, does not affect the perfection of the appeal and does not
result in outright or ipso factodismissal of the appeal. Following,
Rule 22, Section 9 (a) of the COMELEC Rules, the appeal may be
dismissed. And pursuant to Rule 40, Section 18 of the same rules, if
the fees are not paid, the COMELEC may refuse to take action
thereon until they are paid and may dismiss the action or the
proceeding. In such a situation, the COMELEC is merely given the
discretion to dismiss the appeal or not.
Accordingly, in the instant case, the COMELEC First
Division, may dismiss petitioner's appeal, as it in fact did, for
petitioner's failure to pay the P3,200.00 appeal fee.
Be that as it may, the Court still finds that the COMELEC
First Division gravely abused its discretion in issuing the order
dismissing petitioner's appeal. The Court notes that the notice of
appeal and the P1,000.00 appeal fee were, respectively, filed and
paid with the MTC of Kapatagan, Lanao del Norte on April 21,
2008. On that date, the petitioner's appeal was deemed perfected.
COMELEC issued Resolution No. 8486 clarifying the rule on the
payment of appeal fees only on July 15, 2008, or almost three
months after the appeal was perfected. Yet, on July 31, 2008, or
barely two weeks after the issuance of Resolution No. 8486, the
COMELEC First Division dismissed petitioner's appeal for nonpayment to the COMELEC Cash Division of the
additional P3,200.00 appeal fee.
Considering that petitioner filed his appeal months before
the clarificatory resolution on appeal fees, petitioner's appeal should
not be unjustly prejudiced by COMELEC Resolution No. 8486.
Fairness and prudence dictate that the COMELEC First Division

should have first directed petitioner to pay the additional appeal fee
in accordance with the clarificatory resolution, and if the latter
should refuse to comply, then, and only then, dismiss the appeal.
Instead, the COMELEC First Division hastily dismissed the appeal
on the strength of the recently promulgated clarificatory resolution
which had taken effect only a few days earlier. This unseemly haste
is an invitation to outrage.
In this case, the appeal to the COMELEC was perfected when petitioner filed
her Notice of Appeal and paid the appeal fee of P1,000.00 on May 13, 2008, which
was two months before the COMELEC issued Resolution No. 8486, [20] clarifying the
rule on the payment of appeal fees. As stated in Aguilar, fairness and prudence dictate
that the First Division of the COMELEC should have first directed petitioner to pay the
additional appeal fee of P3,200.00 in accordance with the clarificatory resolution; and
if petitioner refused to comply, only then should the appeal be dismissed. The First
Division of the COMELEC should have been more cautious in dismissing petitioners
appeal on the mere technicality of non-payment of the additional appeal fee of P3,200.00
given the public interest involved in election cases. [21]
In view of the foregoing, the Court finds that the First Division of the
COMELEC gravely abused its discretion in issuing the Order dated November 25, 2008,
dismissing petitioners appeal. The case is remanded to the First Division of the
COMELEC for disposition of the appeal in accordance with this decision, subject to the
presentation by petitioner of the receipt evidencing payment of the appeal fee
of P1,000.00 as required under Section 9, Rule 14 of A. M. No. 07-4-15-SC.
It must be stated, however, that for notices of appeal filed after the
promulgation on July 27, 2009 of Divinagracia v. Commission on Elections,[22] errors in
the matter of non-payment or incomplete payment of the two appeal fees in election cases
are no longer excusable.
The second and third issues shall be discussed jointly.
Petitioner contends that the First Division of the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction in acting on the motion for
reconsideration without elevating the same to the COMELEC en banc, and in denying the
motion for reconsideration.
The contention is meritorious.
It is settled that under Section 7, Article IX-A of the Constitution, [23] what may
be brought to this Court on certiorari is the decision, order or ruling of the
COMELEC en banc. However, this rule should not apply when a division of the
COMELEC arrogates unto itself and deprives the en banc of the authority to rule on a
motion for reconsideration, like in this case.[24]
Section 3, Article IX-C of the Constitution provides for the procedure for the
resolution of election cases by the COMELEC, thus:
Sec. 3. The Commission on Elections may sit en banc or
in two divisions, and shall promulgate its rules of procedure in order

to expedite disposition of election cases, including pre-proclamation

controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.
The constitutional provision is reflected in Sections 5 and 6, Rule 19 of the
COMELEC Rules of Procedure as follows:
Sec. 5. How Motion for Reconsideration Disposed of.
Upon the filing of a motion to reconsider a decision, resolution,
order or ruling of a Division, the Clerk of Court concerned shall,
within twenty-four (24) hours from the filing thereof, notify the
Presiding Commissioner. The latter shall within two (2) days
thereafter certify the case to the Commission en banc.
Sec. 6. Duty of Clerk of Court of Commission to
Calendar Motion for Reconsideration. The Clerk of Court
concerned shall calendar the motion for reconsideration for the
resolution of the Commission en banc within ten (10) days from
the certification thereof.
In this case, the First Division of the COMELEC violated the cited provisions
of the Constitution and the COMELEC Rules of Procedure when it resolved petitioner's
motion for reconsideration of its final Order dated November 25, 2008, which dismissed
petitioners appeal. By arrogating unto itself a power constitutionally lodged in the
Commission en banc, the First Division of the COMELEC exercised judgment in excess
of, or without, jurisdiction.[25] Hence, the Order issued by the First Division of the
COMELEC dated January 9, 2009, denying petitioners motion for reconsideration, is null
and void.
Petitioner stated in her Reply [26] that on April 1, 2009, the First Division of the
COMELEC issued an Order declaring the Order dated November 25, 2008 as final and
executory, and ordering the issuance of an Entry of Judgment. On April 1, 2009, an Entry
of Judgment was issued by the Electoral Contests Adjudication Department.
WHEREFORE, the petition is GRANTED. The Orders dated November 25,
2008 and January 9, 2009 by the First Division of the COMELEC, and the Entry of
Judgment issued on April 1, 2009 by the Electoral Contests Adjudication
Department are ANNULLED and SET ASIDE. The case is REMANDED to the First
Division of the Commission on Elections for disposition in accordance with this
Decision.
No costs.
SO ORDERED.

CAGAS vs. COMELEC

A party aggrieved by an interlocutory order issued by a Division of the Commission on
Elections (COMELEC) in an election protest may not directly assail the order in this
Court through a special civil action for certiorari. The remedy is to seek the review of the
interlocutory order during the appeal of the decision of the Division in due course.
For resolution is the petition for certiorari brought under Rule 64 of the Rules
of Court, assailing the order dated August 13, 2010 (denying the affirmative defenses
raised by the petitioner),1 and the order dated October 7, 2010 (denying his motion for
reconsideration),2 both issued by the COMELEC First Division in EPC No. 2010-42, an
election protest entitled Claude P. Bautista, protestant v. Douglas R. Cagas, protestee.3
Antecedents
The petitioner and respondent Claude P. Bautista (Bautista) contested the position of
Governor of the Province of Davao del Sur in the May 10, 2010 automated national and
local elections. The fast transmission of the results led to the completion by May 14,
2010 of the canvassing of votes cast for Governor of Davao del Sur, and the petitioner
was proclaimed the winner (with 163,440 votes), with Bautista garnering 159,527 votes. 4
Alleging fraud, anomalies, irregularities, vote-buying and violations of election laws,
rules and resolutions, Bautista filed an electoral protest on May 24, 2010 (EPC No. 201042).5 The protest was raffled to the COMELEC First Division.
In his answer submitted on June 22, 2010, 6 the petitioner averred as his special
affirmative defenses that Bautista did not make the requisite cash deposit on time; and
that Bautista did not render a detailed specification of the acts or omissions complained
of.

COMELEC Resolution No. 8804, taking into consideration Section

9(e), Rule 6 of said Resolution. Furthermore, the Protestant has
likewise essentially complied with Section 7(g), Rule 6 of the
above-mentioned Resolution.
In view of the foregoing, this Commission (First Division)
RESOLVES to DENY the Protestees special affirmative defenses.
SO ORDERED.8
The petitioner moved to reconsider on the ground that the order did not discuss
whether the protest specified the alleged irregularities in the conduct of the elections, in
violation of Section 2, paragraph 2,9 Rule 19 of COMELEC Resolution No.
8804,10 requiring all decisions to clearly and distinctly express the facts and the law on
which they were based; and that it also contravened Section 7(g), 11 Rule 6 of COMELEC
Resolution No. 8804 requiring a detailed specification of the acts or omissions
complained of. He prayed that the matter be certified to the COMELEC en banc pursuant
to Section 1,12 Section 5,13 and Section 6,14 all of Rule 20 of COMELEC Resolution No.
8804.
The petitioner insisted that COMELEC Resolution No. 8804 had introduced
the requirement for the detailed specification to prevent shotgun fishing expeditions by
losing candidates;15 that such requirement contrasted with Rule 6, Section 1 of the 1993
COMELEC Rules of Procedure,16 under which the protest needed only to contain a
concise statement of the ultimate facts constituting the cause or causes of action; that
Bautistas protest did not meet the new requirement under COMELEC Resolution No.
8804; and that in Pea v. House of Representatives Electoral Tribunal, 17 the Court upheld
the dismissal of a protest by the House of Representatives Electoral Tribunal (HRET) for
not specifically alleging the electoral anomalies and irregularities in the May 8, 1995
elections.

1.

Protestant paid the cash deposit amounting to one hundred

thousand pesos (P100,000.00) on June 3, 2010 as evidenced by
O.R. No. 1118105; and

In his opposition,18 Bautista countered that the assailed orders, being merely
interlocutory, could not be elevated to the COMELEC en banc pursuant to the ruling
in Panlilio v. COMELEC;19 that the rules of the COMELEC required the initiatory
petition to specify the acts or omissions constituting the electoral frauds, anomalies and
election irregularities, and to contain the ultimate facts upon which the cause of action
was based; and that Pea v. House of Representatives Electoral Tribunal did not apply
because, firstly, Pea had totally different factual antecedents than this case, and, secondly,
the omission of material facts from Peas protest prevented the protestee (Alfredo E.
Abueg, Jr.) from being apprised of the issues that he must meet and made it eventually
impossible for the HRET to determine which ballot boxes had to be collected.

2.

Paragraph nos. 9 to 28 of the initiatory petition filed by the

Protestant set forth the specific details of the acts and
omissions complained of against the Protestee.

On October 7, 2010, the COMELEC First Division issued its second assailed
order,20 denying the petitioners motion for reconsideration for failing to show that the first
order was contrary to law, to wit:

On August 13, 2010, the COMELEC First Division issued the first assailed
order denying the special affirmative defenses of the petitioner, 7 viz:
After careful examination of the records of the case, this
Commission (First Division) makes the following observation:

It is therefore concluded that the payment by the Protestant

on June 3, 2010 is a substantial compliance with the requirement of

The Protestees August 28, 2010 Motion for Reconsideration

with Prayer to Certify the Case to the Commission En Banc relative

to the Order issued by the Commission (First Division) dated

August 13, 2010 is hereby DENIED for failure to show that the
assailed order is contrary to law
Without going into the merits of the protest, the
allegations in the protestants petition have substantially
complied with the requirements of COMELEC Resolution No.
8804 that will warrant the opening of the ballot boxes in order
to resolve not only the issues raised in the protest but also those
set forth in the Protestees answer. When substantial compliance
with the rules is satisfied, allowing the protest to proceed is the
best way of removing any doubt or uncertainty as to the true
will of the electorate. All other issues laid down in the parties
pleadings, including those in the Protestees special and
affirmative defenses and those expressed in the preliminary
conference brief, will best be threshed out in the final resolution
of the instant case.
The prayer to elevate the instant Motion for
Reconsideration to the Commission En Banc is DENIED
considering that the 13 August 2010 Order is merely
interlocutory and it does not dispose of the instant case with
finality, in accordance with Section 5(c), Rule 3 of the
COMELEC Rules of Procedure.

he protested. He concludes that the COMELEC First Division gravely abused its
discretion in allowing the protest of Bautista despite its insufficiency.
Moreover, the petitioner urges that the protest be considered as a mere fishing
expedition to be outrightly dismissed in light of the elections being held under an
automated system. In support of his urging, he cites Roque, Jr. v. Commission on
Elections,22 where the Court took judicial notice of the accuracy and reliability of the
PCOS machines and CCS computers, such that allegations of massive errors in the
automated counting and canvassing had become insufficient as basis for the COMELEC
to entertain or to give due course to defective election protests. 23 He submits that a protest
like Bautistas cast doubt on the automated elections.
On the other hand, the Office of the Solicitor General (OSG) and Bautista both
posit that the COMELEC had the power and prerogative to determine the sufficiency of
the allegations of an election protest; and that certiorari did not lie because the
COMELEC First Division acted within its discretion. Additionally, the OSG maintains
that the assailed orders, being interlocutory, are not the proper subjects of a petition
for certiorari.
As we see it, the decisive issue is whether the Court can take cognizance of the
petition for certiorari.
Ruling
We dismiss the petition for lack of merit.

SO ORDERED.
Not satisfied, the petitioner commenced this special civil action directly in this

The governing provision is Section 7, Article IX of the 1987 Constitution,

which provides:

Court.
Issue
The petitioner submits that:
THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN REFUSING TO DISMISS THE PROTEST
FOR INSUFFICIENCY IN FORM AND CONTENT.
The petitioner argues that Section 9,21 Rule 6 of COMELEC Resolution No.
8804 obliged the COMELEC First Division to summarily dismiss the protest for being
insufficient in form and content; and that the insufficiency in substance arose from the
failure of the protest to: (a) specifically state how the various irregularities and anomalies
had affected the results of the elections; (b) indicate in which of the protested precincts
were pre-shaded bogus-ballots used; (c) identify the precincts where the PCOS machines
had failed to accurately account for the votes in favor of Bautista; and (d) allege with
particularity how many additional votes Bautista stood to receive for each of the grounds

Section 7. Each Commission shall decide by a majority vote

of all its Members any case or matter brought before it within sixty
days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon
the filing of the last pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
This provision, although it confers on the Court the power to review any
decision, order or ruling of the COMELEC, limits such power to a final decision or
resolution of the COMELEC en banc, and does not extend to an interlocutory order
issued by a Division of the COMELEC. Otherwise stated, the Court has no power to
review on certiorari an interlocutory order or even a final resolution issued by a Division
of the COMELEC. The following cogent observations made in Ambil v. Commission on
Elections24 are enlightening, viz:

To begin with, the power of the Supreme Court to review

decisions of the Comelec is prescribed in the Constitution, as
follows:
Section 7. Each commission shall decide by a
majority vote of all its members any case or matter
brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter
is deemed submitted for decision or resolution upon
the filing of the last pleading, brief, or memorandum
required by the rules of the commission or by the
commission itself. Unless otherwise provided by this
constitution or by law, any decision, order, or ruling of
each commission may be brought to the Supreme
Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof. [emphasis
supplied]
We have interpreted this provision to mean final orders,
rulings and decisions of the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers. This decision must
be a final decision or resolution of the Comelec en banc, not of a
division, certainly not an interlocutory order of a division. The
Supreme Court has no power to review via certiorari, an
interlocutory order or even a final resolution of a Division of the
Commission on Elections.
The mode by which a decision, order or ruling of the
Comelec en banc may be elevated to the Supreme Court is by the
special civil action of certiorari under Rule 65 of the 1964 Revised
Rules of Court, now expressly provided in Rule 64, 1997 Rules of
Civil Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as
amended, requires that there be no appeal, or any plain,
speedy and adequate remedy in the ordinary course of law. A motion
for reconsideration is a plain and adequate remedy provided by
law. Failure to abide by this procedural requirement constitutes a
ground for dismissal of the petition.
In like manner, a decision, order or resolution of a
division of the Comelec must be reviewed by the Comelec en
banc via a motion for reconsideration before the final en
banc decision may be brought to the Supreme Court
on certiorari. The pre-requisite filing of a motion for
reconsideration is mandatory.xxx25

There is no question, therefore, that the Court has no jurisdiction to take

cognizance of the petition for certiorari assailing the denial by the COMELEC First
Division of the special affirmative defenses of the petitioner. The proper remedy is for the
petitioner to wait for the COMELEC First Division to first decide the protest on its
merits, and if the result should aggrieve him, to appeal the denial of his special
affirmative defenses to the COMELEC en banc along with the other errors committed by
the Division upon the merits.
It is true that there may be an exception to the general rule, as the Court
conceded in Kho v. Commission on Elections.26 In that case, the protestant assailed the
order of the COMELEC First Division admitting an answer with counterprotest belatedly filed in an election protest by filing a petition for certiorari directly in
this Court on the ground that the order constituted grave abuse of discretion on the part of
the COMELEC First Division. The Court granted the petition and nullified the assailed
order for being issued without jurisdiction, and explained the exception thuswise:
As to the issue of whether or not the case should be
referred to the COMELEC en banc, this Court finds the
respondent COMELEC First Division correct when it held in its
order dated February 28, 1996 that no final decision, resolution
or order has yet been made which will necessitate the elevation
of the case and its records to the Commission en banc. No less
than the Constitution requires that election cases must be heard and
decided first in division and any motion for reconsideration of
decisions shall be decided by the Commission en banc. Apparently,
the orders dated July 26, 1995, November 15, 1995 and February
28, 1996 and the other orders relating to the admission of the answer
with counter-protest are issuances of a Commission in division and
are all interlocutory orders because they merely rule upon an
incidental issue regarding the admission of Espinosa's answer with
counter-protest and do not terminate or finally dispose of the case as
they leave something to be done before it is finally decided on the
merits. In such a situation, the rule is clear that the authority to
resolve incidental matters of a case pending in a division, like the
questioned interlocutory orders, falls on the division itself, and not
on the Commission en banc. Section 5 (c), Rule 3 of the COMELEC
Rules of Procedure explicitly provides for this,
Sec. 5. Quorum; Votes Required xxx
xxx
(c) Any motion to reconsider a decision,
resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions
on interlocutory orders of the division which shall be
resolved by the division which issued the order.
(emphasis provided)

Furthermore, a look at Section 2, Rule 3 of the COMELEC

Rules of Procedure confirms that the subject case does not fall on
any of the instances over which the Commission en banc can take
cognizance of. It reads as follows:
Section 2. The Commission en banc. The
Commission shall sit en banc in cases hereinafter
specifically provided, or in pre-proclamation cases
upon a vote of a majority of the members of a
Commission, or in all other cases where a division is
not authorized to act, or where, upon a unanimous vote
of all the members of a Division, an interlocutory
matter or issue relative to an action or proceeding
before it is decided to be referred to the
Commission en banc.
In the instant case, it does not appear that the subject
controversy is one of the cases specifically provided under the
COMELEC Rules of Procedure in which the Commission may
sit en banc. Neither is it shown that the present controversy a
case where a division is not authorized to act nor a situation
wherein the members of the First Division unanimously voted to
refer the subject case to the Commission en banc. Clearly, the
Commission en banc, under the circumstances shown above, can
not be the proper forum which the matter concerning the
assailed interlocutory orders can be referred to.
In a situation such as this where the Commission in
division committed grave abuse of discretion or acted without or
in excess of jurisdiction in issuing interlocutory orders relative
to an action pending before it and the controversy did not fall
under any of the instances mentioned in Section 2, Rule 3 of the
COMELEC Rules of Procedure, the remedy of the aggrieved
party is not to refer the controversy to the Commission en
banc as this is not permissible under its present rules but to
elevate it to this Court via a petition for certiorari under Rule 65
of the Rules of Court.(Bold emphasis supplied)
Under the exception, therefore, the Court may take cognizance of a petition
for certiorari under Rule 64 to review an interlocutory order issued by a Division of the
COMELEC on the ground of the issuance being made without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
when it does not appear to be specifically provided under the COMELEC Rules of
Procedure that the matter is one that the COMELEC en banc may sit and consider, or a
Division is not authorized to act, or the members of the Division unanimously vote to
refer to the COMELEC en banc. Of necessity, the aggrieved party can directly resort to
the Court because the COMELEC en banc is not the proper forum in which the matter
concerning the assailed interlocutory order can be reviewed.

However, the Kho v. Commission on Elections exception has no application

herein, because the COMELEC First Division had the competence to determine the lack
of detailed specifications of the acts or omissions complained of as required by Rule 6,
Section 7 of COMELEC Resolution No. 8804, and whether such lack called for the
outright dismissal of the protest. For sure, the 1987 Constitution vested in the COMELEC
broad powers involving not only the enforcement and administration of all laws and
regulations relative to the conduct of elections but also the resolution and determination
of election controversies.27 The breadth of such powers encompasses the authority to
determine the sufficiency of allegations contained in every election protest and to decide
based on such allegations whether to admit the protest and proceed with the hearing or to
outrightly dismiss the protest in accordance with Section 9, Rule 6 of COMELEC
Resolution No. 8804.
The Court has upheld the COMELECs determination of the sufficiency of
allegations contained in election protests, conformably with its imperative duty to
ascertain in an election protest, by all means within its command, who was the candidate
elected by the electorate.28 Indeed, in Panlilio v. Commission on Elections,29 we brushed
aside the contention that the election protest was insufficient in form and substance and
was a sham for having allegations couched in general terms, stating:
In Miguel v. COMELEC, the Court belittled the petitioners
argument that the protestant had no cause of action, as the
allegations of fraud and irregularities, which were couched in
general terms, were not sufficient to order the opening of ballot
boxes and counting of ballots. The Court states the rules in election
protests cognizable by the COMELEC and courts of general
jurisdiction, as follows:
The rule in this jurisdiction is clear and
jurisprudence is even clearer. In a string of categorical
pronouncements, we have consistently ruled that when
there is an allegation in an election protest that would
require the perusal, examination or counting of ballots
as evidence, it is the ministerial duty of the trial court
to order the opening of the ballot boxes and the
examination and counting of ballots deposited therein.
In a kindred case, Homer Saquilayan v. COMELEC, the
Court considered the allegations in an election protest, similar to
those in this case, as sufficient in form and substance.
Again, in Dayo v. COMELEC, the Court declared that
allegations of fraud and irregularities are sufficient grounds for
opening the ballot boxes and examining the questioned ballots. The
pronouncement is in accordance with Section 255 of the Omnibus
Election Code, which reads:

Judicial counting of votes in election contest.

Where allegations in a protest or counter-protest so
warrant, or whenever in the opinion of the court in the
interests of justice so require, it shall immediately
order the book of voters, ballot boxes and their keys,
ballots and other documents used in the election be
brought before it and that the ballots be examined and
the votes recounted.

address the fears expressed about the integrity of the system. Like
anyone else, the Court would like and wish automated elections to
succeed, credibly.32
In view of the foregoing, we have no need to discuss at length the other
submissions of the petitioner.
ACCORDINGLY, the petition for certiorari is DISMISSED for lack of
merit.

In this case, the COMELEC Second Division found that the

allegations in the protest and counter-protest warranted the opening
of the contested ballot boxes and the examination of their contents
to settle at once the conflicting claims of petitioner and private
respondent.
The petitioner adds that with the Court having noted the reliability and
accuracy of the PCOS machines and consolidation/canvassing system (CCS) computers
in Roque, Jr. v. Commission on Elections, 30 Bautistas election protest assailing the system
and procedure of counting and canvassing of votes cast in an automated system of
elections should be immediately dismissed.
We are not persuaded.
Roque, Jr. v. Commission on Elections does not preclude the filing of an
election protest to challenge the outcome of an election undertaken in an automated
system of elections. Instead, the Court only ruled there that the system and procedure
implemented by the COMELEC in evaluating the PCOS machines and CCS computers
met the minimum system requirements prescribed in Section 7 of Republic Act No.
8436.31 The Court did not guarantee the efficiency and integrity of the automated system
of elections, as can be gleaned from the following pronouncement thereat:

The Court, however, will not indulge in the presumption

that nothing would go wrong, that a successful automation election
unmarred by fraud, violence, and like irregularities would be the
order of the moment on May 10, 2010. Neither will it guarantee, as
it cannot guarantee, the effectiveness of the voting machines and the
integrity of the counting and consolidation software embedded in
them. That task belongs at the first instance to Comelec, as part of
its mandate to ensure clean and peaceful elections. This independent
constitutional commission, it is true, possesses extraordinary powers
and enjoys a considerable latitude in the discharge of its functions.
The road, however, towards successful 2010 automation elections
would certainly be rough and bumpy. The Comelec is laboring
under very tight timelines. It would accordingly need the help of all
advocates of orderly and honest elections, of all men and women of
goodwill, to smoothen the way and assist Comelec personnel

SO ORDERED.

ROMMEL APOLINARIO JALOSJOS, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and DAN ERASMO, SR.,

This case is about the proof required to establish the domicile of a reinstated Filipino
citizen who seeks election as governor of a province.
The Facts and the Case
Petitioner Rommel Jalosjos was born in Quezon City on October 26, 1973. He
migrated to Australia in 1981 when he was eight years old and there acquired
Australian citizenship. On November 22, 2008, at age 35, he decided to return to the
Philippines and lived with his brother, Romeo, Jr., in Barangay Veterans Village,
Ipil, Zamboanga Sibugay. Four days upon his return, he took an oath of allegiance to
the Republic of the Philippines, resulting in his being issued a Certificate of
Reacquisition of Philippine Citizenship by the Bureau of Immigration. 1 On
September 1, 2009 he renounced his Australian citizenship, executing a sworn
renunciation of the same2 in compliance with Republic Act (R.A.) 9225.3
From the time of his return, Jalosjos acquired a residential property in the same
village where he lived and a fishpond in San Isidro, Naga, Zamboanga Sibugay. He
applied for registration as a voter in the Municipality of Ipil but respondent Dan
Erasmo, Sr., the Barangay Captain of Barangay Veterans Village, opposed the same.
Acting on the application, the Election Registration Board approved it and included
Jalosjos name in the Commission on Elections (COMELECs) voters list for
Precinct 0051F of Barangay Veterans Village, Ipil, Zamboanga Sibugay.4

ground that the latter made material misrepresentation in the same since he failed to
comply with (1) the requirements of R.A. 9225 and (2) the one-year residency
requirement of the Local Government Code.
After hearing, the Second Division of the COMELEC ruled that, while Jalosjos had
regained Philippine citizenship by complying with the requirements of R.A. 9225,
he failed to prove the residency requirement for a gubernatorial candidate. He failed
to present ample proof of a bona fide intention to establish his domicile in Ipil,
Zamboanga Sibugay. On motion for reconsideration, the COMELEC En Banc
affirmed the Second Divisions decision, ruling that Jalosjos had been a mere guest
or transient visitor in his brothers house and, for this reason, he cannot claim Ipil as
his domicile.
Acting on Jalosjos prayer for the issuance of a temporary restraining order, the
Court resolved on May 7, 2010 to issue a status quo ante order, enjoining the
COMELEC from enforcing its February 11, 2010 decision pending further orders.
Meanwhile, Jolosjos won the election and was proclaimed winner of the 2010
gubernatorial race in the Province of Zamboanga Sibugay.8
The Issue Presented
The sole issue presented in this case is whether or not the COMELEC acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that
Jalosjos failed to present ample proof of a bona fide intention to establish his
domicile in Ipil, Zamboanga Sibugay.
The Courts Ruling

Undaunted, Erasmo filed before the 1st Municipal Circuit Trial Court (MCTC) of
Ipil-Tungawan-R.T. Lim in Ipil a petition for the exclusion of Jalosjos name from
the official voters list. After hearing, the MCTC rendered a decision, denying the
petition.5 On appeal,6 the Regional Trial Court (RTC) affirmed the MCTC decision.
The RTC decision became final and executory.

The Local Government Code requires a candidate seeking the position of provincial
governor to be a resident of the province for at least one year before the
election.9 For purposes of the election laws, the requirement of residence is
synonymous with domicile,10 meaning that a person must not only intend to reside in
a particular place but must also have personal presence in such place coupled with
conduct indicative of such intention.11

On November 28, 2009 Jalosjos filed his Certificate of Candidacy (COC) for
Governor of Zamboanga Sibugay Province for the May 10, 2010 elections. Erasmo
promptly filed a petition to deny due course or to cancel Jalosjos COC 7 on the

There is no hard and fast rule to determine a candidates compliance with residency
requirement since the question of residence is a question of intention. 12 Still,
jurisprudence has laid down the following guidelines: (a) every person has a

domicile or residence somewhere; (b) where once established, that domicile remains
until he acquires a new one; and (c) a person can have but one domicile at a time. 13

What matters is that Jalosjos has proved two things: actual physical presence in Ipil
and an intention of making it his domicile.

It is inevitable under these guidelines and the precedents applying them that Jalosjos
has met the residency requirement for provincial governor of Zamboanga Sibugay.

Jalosjos presented the affidavits of next-door neighbors, attesting to his physical

presence at his residence in Ipil. These adjoining neighbors are no doubt more
credible since they have a better chance of noting his presence or absence than his
other neighbors, whose affidavits Erasmo presented, who just sporadically passed by
the subject residence. Further, it is not disputed that Jalosjos bought a residential lot
in the same village where he lived and a fish pond in San Isidro, Naga, Zamboanga
Sibugay. He showed correspondences with political leaders, including local and
national party-mates, from where he lived. Moreover, Jalosjos is a registered voter
of Ipil by final judgment of the Regional Trial Court of Zamboanga
Sibugay.1wphi1

One. The COMELEC appears hasty in concluding that Jalosjos failed to prove that
he successfully changed his domicile to Zamboanga Sibugay. The COMELEC
points out that, since he was unable to discharge the burden of proving Zamboanga
Sibugay to be his rightful domicile, it must be assumed that his domicile is either
Quezon City or Australia.
But it is clear from the facts that Quezon City was Jalosjos domicile of origin, the
place of his birth. It may be taken for granted that he effectively changed his
domicile from Quezon City to Australia when he migrated there at the age of eight,
acquired Australian citizenship, and lived in that country for 26 years. Australia
became his domicile by operation of law and by choice. 14
On the other hand, when he came to the Philippines in November 2008 to live with
his brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to
change his domicile for good. He left Australia, gave up his Australian citizenship,
and renounced his allegiance to that country. In addition, he reacquired his old
citizenship by taking an oath of allegiance to the Republic of the Philippines,
resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship
by the Bureau of Immigration. By his acts, Jalosjos forfeited his legal right to live in
Australia, clearly proving that he gave up his domicile there. And he has since lived
nowhere else except in Ipil, Zamboanga Sibugay.
To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay
despite the loss of his domicile of origin (Quezon City) and his domicile of choice
and by operation of law (Australia) would violate the settled maxim that a man must
have a domicile or residence somewhere.
Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in
Ipil since he has merely been staying at his brothers house. But this circumstance
alone cannot support such conclusion. Indeed, the Court has repeatedly held that a
candidate is not required to have a house in a community to establish his residence
or domicile in a particular place. It is sufficient that he should live there even if it be
in a rented house or in the house of a friend or relative. 15 To insist that the candidate
own the house where he lives would make property a qualification for public office.

Three. While the Court ordinarily respects the factual findings of administrative
bodies like the COMELEC, this does not prevent it from exercising its review
powers to correct palpable misappreciation of evidence or wrong or irrelevant
considerations.16 The evidence Jalosjos presented is sufficient to establish Ipil,
Zamboanga Sibugay, as his domicile. The COMELEC gravely abused its discretion
in holding otherwise.
Four. Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for
Zamboanga Sibugay. The Court will respect the decision of the people of that
province and resolve all doubts regarding his qualification in his favor to breathe life
to their manifest will.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the Resolution of
the COMELEC Second Division dated February 11, 2010 and the Resolution of the
COMELEC En Banc dated May 4, 2010 that disqualified petitioner Rommel
Jalosjos from seeking election as Governor of Zamboanga Sibugay.
SO ORDERED.

LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE

AGAINST CORRUPTION (CIBAC),Petitioner,
vs.
COMMISSION ON ELECTIONS and the HOUSE OF
REPRESENTATIVES, Respondents.

The principal question posed in these consolidated special civil actions for certiorari
and mandamus is whether the Commission on Elections (COMELEC) can issue
implementing rules and regulations (IRRs) that provide a ground for the substitution
of a party-list nominee not written in Republic Act (R.A.) No. 7941, 1 otherwise
known as the Party-List System Act, the law that the COMELEC thereby
implements.
Common Antecedents
The Citizens Battle Against Corruption (CIBAC) was one of the organized groups
duly registered under the party-list system of representation that manifested their
intent to participate in the May 14, 2007 synchronized national and local elections.
Together with its manifestation of intent to participate, 2 CIBAC, through its
president, Emmanuel Joel J. Villanueva, submitted a list of five nominees from
which its representatives would be chosen should CIBAC obtain the required
number of qualifying votes. The nominees, in the order that their names appeared in
the certificate of nomination dated March 29, 2007, 3 were: (1) Emmanuel Joel J.
Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-Gonzales;
(4) Sherwin Tugna; and (5) Emil L. Galang. The nominees certificates of
acceptance were attached to the certificate of nomination filed by CIBAC. The list
of nominees was later published in two newspapers of general circulation, The
Philippine Star News4 (sic) and The Philippine Daily Inquirer.5
Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate
of nomination, substitution and amendment of the list of nominees dated May 7,
2007,6 whereby it withdrew the nominations of Lokin, Tugna and Galang and
substituted Armi Jane R. Borje as one of the nominees. The amended list of
nominees of CIBAC thus included: (1) Villanueva, (2) Cruz-Gonzales, and (3)
Borje.

Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to
COMELEC Chairperson Benjamin Abalos,7 transmitting therewith the signed
petitions of more than 81% of the CIBAC members, in order to confirm the
withdrawal of the nomination of Lokin, Tugna and Galang and the substitution of
Borje. In their petitions, the members of CIBAC averred that Lokin and Tugna were
not among the nominees presented and proclaimed by CIBAC in its proclamation
rally held in May 2007; and that Galang had signified his desire to focus on his
family life.
On June 26, 2007, CIBAC, supposedly through its counsel, filed with the
COMELEC en banc sitting as the National Board of Canvassers a motion seeking
the proclamation of Lokin as its second nominee. 8 The right of CIBAC to a second
seat as well as the right of Lokin to be thus proclaimed were purportedly based on
Party-List Canvass Report No. 26, which showed CIBAC to have garnered a grand
total of 744,674 votes. Using all relevant formulas, the motion asserted that CIBAC
was clearly entitled to a second seat and Lokin to a proclamation.
The motion was opposed by Villanueva and Cruz-Gonzales.
Notwithstanding Villanuevas filing of the certificate of nomination, substitution and
amendment of the list of nominees and the petitions of more than 81% of CIBAC
members, the COMELEC failed to act on the matter, prompting Villanueva to file a
petition to confirm the certificate of nomination, substitution and amendment of the
list of nominees of CIBAC on June 28, 2007.9
On July 6, 2007, the COMELEC issued Resolution No. 8219, 10 whereby it resolved
to set the matter pertaining to the validity of the withdrawal of the nominations of
Lokin, Tugna and Galang and the substitution of Borje for proper disposition and
hearing. The case was docketed as E.M. No. 07-054.
In the meantime, the COMELEC en banc, sitting as the National Board of
Canvassers, issued National Board of Canvassers (NBC) Resolution No. 07-60 dated
July 9, 200711 to partially proclaim the following parties, organizations and
coalitions participating under the Party-List System as having won in the May 14,
2007 elections, namely: Buhay Hayaan Yumabong, Bayan Muna, CIBAC, Gabriela
Women's Party, Association of Philippine Electric Cooperatives, Advocacy for
Teacher Empowerment Through Action, Cooperation and Harmony Towards
Educational Reforms, Inc., Akbayan! Citizen's Action Party, Alagad, Luzon Farmers
Party, Cooperative-Natco Network Party, Anak Pawis, Alliance of Rural Concerns

and Abono; and to defer the proclamation of the nominees of the parties,
organizations and coalitions with pending disputes until final resolution of their
respective cases.
The COMELEC en banc issued another resolution, NBC Resolution No. 07-72
dated July 18, 2007,12 proclaiming Buhay Hayaan Yumabong as entitled to 2
additional seats and Bayan Muna, CIBAC, Gabriela Women's Party, and Association
of Philippine Electric Cooperatives to an additional seat each; and holding in
abeyance the proclamation of the nominees of said parties, organizations and
coalitions with pending disputes until the final resolution of their respective cases.
With the formal declaration that CIBAC was entitled to an additional seat, Ricardo
de los Santos, purportedly as secretary general of CIBAC, informed Roberto P.
Nazareno, Secretary General of the House of Representatives, of the promulgation
of NBC Resolution No. 07-72 and requested that Lokin be formally sworn in by
Speaker Jose de Venecia, Jr. to enable him to assume office. Nazareno replied,
however, that the request of Delos Santos could not be granted because COMELEC
Law Director Alioden D. Dalaig had notified him of the pendency of E.M. 07-054.
On September 14, 2007, the COMELEC en banc resolved E.M. No. 0705413 thuswise:
WHEREFORE, considering the above discussion, the Commission hereby approves
the withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and
Emil Galang as second, third and fourth nominees respectively and the substitution
thereby with Atty. Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi
Jane R. Borje as third nominee for the party list CIBAC. The new order of CIBAC's
nominees therefore shall be:
1. Emmanuel Joel J. Villanueva
2. Cinchona C. Cruz-Gonzales
3. Armi Jane R. Borje
SO ORDERED.
The COMELEC en banc explained that the actions of Villanueva in his capacity as
the president of CIBAC were presumed to be within the scope of his authority as

such; that the president was charged by Section 1 of Article IV of the CIBAC ByLaws to oversee and direct the corporate activities, which included the act of
submitting the party's manifestation of intent to participate in the May 14, 2007
elections as well as its certificate of nominees; that from all indications, Villanueva
as the president of CIBAC had always been provided the leeway to act as the party's
representative and that his actions had always been considered as valid; that the act
of withdrawal, although done without any written Board approval, was
accomplished with the Boards acquiescence or at least understanding; and that the
intent of the party should be given paramount consideration in the selection of the
nominees.
As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official
second nominee of CIBAC.14 Cruz-Gonzales took her oath of office
as a Party-List Representative of CIBAC on September 17, 2007. 15
Precs of the Consolidated Cases
In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to
compel respondent COMELEC to proclaim him as the official second nominee of
CIBAC.
In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated
on January 12, 2007;16 and the resolution dated September 14, 2007 issued in E.M.
No. 07-054 (approving CIBACs withdrawal of the nominations of Lokin, Tugna
and Galang as CIBACs second, third and fourth nominees, respectively, and the
substitution by Cruz-Gonzales and Borje in their stead, based on the right of CIBAC
to change its nominees under Section 13 of Resolution No. 7804). 17 He alleges that
Section 13 of Resolution No. 7804 expanded Section 8 of R.A. No. 7941. 18 the law
that the COMELEC seeks to thereby implement.
In its comment, the COMELEC asserts that a petition for certiorari is an
inappropriate recourse in law due to the proclamation of Cruz-Gonzales as
Representative and her assumption of that office; that Lokins proper recourse was
an electoral protest filed in the House of Representatives Electoral Tribunal (HRET);
and that, therefore, the Court has no jurisdiction over the matter being raised by
Lokin.

For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition
for mandamus and a petition for certiorari, considering that both petitions ultimately
seek to have him proclaimed as the second nominee of CIBAC.
Issues
The issues are the following:
(a) Whether or not the Court has jurisdiction over the controversy;
(b) Whether or not Lokin is guilty of forum shopping;
(c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional
and violates the Party-List System Act; and
(d) Whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in approving the withdrawal of
the nominees of CIBAC and allowing the amendment of the list of
nominees of CIBAC without any basis in fact or law and after the close of
the polls, and in ruling on matters that were intra-corporate in nature.
Ruling
The petitions are granted.
A
The Court has jurisdiction over the case
The COMELEC posits that once the proclamation of the winning party-list
organization has been done and its nominee has assumed office, any question
relating to the election, returns and qualifications of the candidates to the House of
Representatives falls under the jurisdiction of the HRET pursuant to Section 17,
Article VI of the 1987 Constitution. Thus, Lokin should raise the question he poses
herein either in an election protest or in a special civil action for quo warranto in the
HRET, not in a special civil action for certiorari in this Court.
We do not agree.

An election protest proposes to oust the winning candidate from office. It is strictly a
contest between the defeated and the winning candidates, based on the grounds of
electoral frauds and irregularities, to determine who between them has actually
obtained the majority of the legal votes cast and is entitled to hold the office. It can
only be filed by a candidate who has duly filed a certificate of candidacy and has
been voted for in the preceding elections.
A special civil action for quo warranto refers to questions of disloyalty to the State,
or of ineligibility of the winning candidate. The objective of the action is to unseat
the ineligible person from the office, but not to install the petitioner in his place. Any
voter may initiate the action, which is, strictly speaking, not a contest where the
parties strive for supremacy because the petitioner will not be seated even if the
respondent may be unseated.
The controversy involving Lokin is neither an election protest nor an action for quo
warranto, for it concerns a very peculiar situation in which Lokin is seeking to be
seated as the second nominee of CIBAC. Although an election protest may properly
be available to one party-list organization seeking to unseat another party-list
organization to determine which between the defeated and the winning party-list
organizations actually obtained the majority of the legal votes, Lokins case is not
one in which a nominee of a particular party-list organization thereby wants to
unseat another nominee of the same party-list organization. Neither does an action
for quo warranto lie, considering that the case does not involve the ineligibility and
disloyalty of Cruz-Gonzales to the Republic of the Philippines, or some other cause
of disqualification for her.
Lokin has correctly brought this special civil action for certiorari against the
COMELEC to seek the review of the September 14, 2007 resolution of the
COMELEC in accordance with Section 7 of Article IX-A of the 1987 Constitution,
notwithstanding the oath and assumption of office by Cruz-Gonzales. The
constitutional mandate is now implemented by Rule 64 of the 1997 Rules of Civil
Procedure, which provides for the review of the judgments, final orders or
resolutions of the COMELEC and the Commission on Audit. As Rule 64 states, the
mode of review is by a petition for certiorari in accordance with Rule 65 to be filed
in the Supreme Court within a limited period of 30 days. Undoubtedly, the Court has
original and exclusive jurisdiction over Lokins petitions for certiorari and for
mandamus against the COMELEC.
B
Petitioner is not guilty of forum shopping

Forum shopping consists of the filing of multiple suits involving the same parties for
the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment. Thus, forum shopping may arise: (a) whenever as a
result of an adverse decision in one forum, a party seeks a favorable decision (other
than by appeal or certiorari) in another; or (b) if, after having filed a petition in the
Supreme Court, a party files another petition in the Court of Appeals, because he
thereby deliberately splits appeals "in the hope that even as one case in which a
particular remedy is sought is dismissed, another case (offering a similar remedy)
would still be open"; or (c) where a party attempts to obtain a writ of preliminary
injunction from a court after failing to obtain the writ from another court. 19
What is truly important to consider in determining whether forum shopping exists or
not is the vexation caused to the courts and the litigants by a party who accesses
different courts and administrative agencies to rule on the same or related causes or
to grant the same or substantially the same reliefs, in the process creating the
possibility of conflicting decisions being rendered by the different fora upon the
same issue.20
The filing of identical petitions in different courts is prohibited, because such act
constitutes forum shopping, a malpractice that is proscribed and condemned as
trifling with the courts and as abusing their processes. Forum shopping is an
improper conduct that degrades the administration of justice. 21
Nonetheless, the mere filing of several cases based on the same incident does not
necessarily constitute forum shopping. The test is whether the several actions filed
involve the same transactions and the same essential facts and circumstances. 22 The
actions must also raise identical causes of action, subject matter, and
issues.23Elsewise stated, forum shopping exists where the elements of litis
pendentia are present, or where a final judgment in one case will amount to res
judicata in the other.24
Lokin has filed the petition for mandamus to compel the COMELEC to proclaim
him as the second nominee of CIBAC upon the issuance of NBC Resolution No. 0772 (announcing CIBACs entitlement to an additional seat in the House of
Representatives), and to strike down the provision in NBC Resolution No. 07-60 and
NBC Resolution No. 07-72 holding in abeyance "all proclamation of the nominees
of concerned parties, organizations and coalitions with pending disputes shall
likewise be held in abeyance until final resolution of their respective cases." He has
insisted that the COMELEC had the ministerial duty to proclaim him due to his
being CIBACs second nominee; and that the COMELEC had no authority to

exercise discretion and to suspend or defer the proclamation of winning party-list

organizations with pending disputes.
On the other hand, Lokin has resorted to the petition for certiorari to assail the
September 14, 2007 resolution of the COMELEC (approving the withdrawal of the
nomination of Lokin, Tugna and Galang and the substitution by Cruz-Gonzales as
the second nominee and Borje as the third nominee); and to challenge the validity of
Section 13 of Resolution No. 7804, the COMELECs basis for allowing CIBACs
withdrawal of Lokins nomination.
Applying the test for forum shopping, the consecutive filing of the action for
certiorari and the action for mandamus did not violate the rule against forum
shopping even if the actions involved the same parties, because they were based on
different causes of action and the reliefs they sought were different.
C
Invalidity of Section 13 of Resolution No. 7804
The legislative power of the Government is vested exclusively in the Legislature in
accordance with the doctrine of separation of powers. As a general rule, the
Legislature cannot surrender or abdicate its legislative power, for doing so will be
unconstitutional. Although the power to make laws cannot be delegated by the
Legislature to any other authority, a power that is not legislative in character may be
delegated.25
Under certain circumstances, the Legislature can delegate to executive officers and
administrative boards the authority to adopt and promulgate IRRs. To render such
delegation lawful, the Legislature must declare the policy of the law and fix the legal
principles that are to control in given cases. The Legislature should set a definite or
primary standard to guide those empowered to execute the law. For as long as the
policy is laid down and a proper standard is established by statute, there can be no
unconstitutional delegation of legislative power when the Legislature leaves to
selected instrumentalities the duty of making subordinate rules within the prescribed
limits, although there is conferred upon the executive officer or administrative board
a large measure of discretion. There is a distinction between the delegation of power
to make a law and the conferment of an authority or a discretion to be exercised
under and in pursuance of the law, for the power to make laws necessarily involves a
discretion as to what it shall be.26

The authority to make IRRs in order to carry out an express legislative purpose, or to
effect the operation and enforcement of a law is not a power exclusively legislative
in character, but is rather administrative in nature. The rules and regulations adopted
and promulgated must not, however, subvert or be contrary to existing statutes. The
function of promulgating IRRs may be legitimately exercised only for the purpose of
carrying out the provisions of a law. The power of administrative agencies is
confined to implementing the law or putting it into effect. Corollary to this is that
administrative regulation cannot extend the law and amend a legislative enactment.
It is axiomatic that the clear letter of the law is controlling and cannot be amended
by a mere administrative rule issued for its implementation. Indeed, administrative
or executive acts shall be valid only when they are not contrary to the laws or the
Constitution.27

Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on
the basis of whether the second and fourth requisites were met. It is in this respect
that the challenge of Lokin against Section 13 succeeds.

To be valid, therefore, the administrative IRRs must comply with the following
requisites to be valid:28

Section 8 of R.A. No. 7941 reads:

1. Its promulgation must be authorized by the Legislature;

2. It must be within the scope of the authority given by the Legislature;
3. It must be promulgated in accordance with the prescribed procedure;
and
4. It must be reasonable.
The COMELEC is constitutionally mandated to enforce and administer all laws and
regulations relative to the conduct of an election, a plebiscite, an initiative, a
referendum, and a recall.29 In addition to the powers and functions conferred upon it
by the Constitution, the COMELEC is also charged to promulgate IRRs
implementing the provisions of the Omnibus Election Code or other laws that the
COMELEC enforces and administers.30
The COMELEC issued Resolution No. 7804 pursuant to its powers under the
Constitution, Batas Pambansa Blg. 881, and the Party-List System Act. 31 Hence, the
COMELEC met the first requisite.
The COMELEC also met the third requisite. There is no question that Resolution
No. 7804 underwent the procedural necessities of publication and dissemination in
accordance with the procedure prescribed in the resolution itself.

As earlier said, the delegated authority must be properly exercised. This simply
means that the resulting IRRs must not be ultra vires as to be issued beyond the
limits of the authority conferred. It is basic that an administrative agency cannot
amend an act of Congress, 32 for administrative IRRs are solely intended to carry out,
not to supplant or to modify, the law. The administrative agency issuing the IRRs
may not enlarge, alter, or restrict the provisions of the law it administers and
enforces, and cannot engraft additional non-contradictory requirements not
contemplated by the Legislature.33

Section 8. Nomination of Party-List Representatives.-Each registered party,

organization or coalition shall submit to the COMELEC not later that forty-five (45)
days before the election a list of names, not less than five (5), from which party-list
representatives shall be chosen in case it obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who have given their
consent in writing may be named in the list. The list shall not include any candidate
of any elective office or a person who has lost his bid for an elective office in the
immediately preceding election. No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the
COMELEC except in cases where the nominee dies, or withdraws in writing his
nomination, becomes incapacitated in which case the name of the substitute nominee
shall be placed last in the list. Incumbent sectoral representatives in the House of
Representatives who are nominated in the party-list system shall not be considered
resigned.
The provision is daylight clear. The Legislature thereby deprived the party-list
organization of the right to change its nominees or to alter the order of nominees
once the list is submitted to the COMELEC, except when: (a) the nominee dies; (b)
the nominee withdraws in writing his nomination; or (c) the nominee becomes
incapacitated. The provision must be read literally because its language is plain and
free from ambiguity, and expresses a single, definite, and sensible meaning. Such
meaning is conclusively presumed to be the meaning that the Legislature has
intended to convey. Even where the courts should be convinced that the Legislature
really intended some other meaning, and even where the literal interpretation should

defeat the very purposes of the enactment, the explicit declaration of the Legislature
is still the law, from which the courts must not depart. 34When the law speaks in clear
and categorical language, there is no reason for interpretation or construction, but
only for application.35 Accordingly, an administrative agency tasked to implement a
statute may not construe it by expanding its meaning where its provisions are clear
and unambiguous.36
The legislative intent to deprive the party-list organization of the right to change the
nominees or to alter the order of the nominees was also expressed during the
deliberations of the Congress, viz:
MR. LAGMAN: And again on Section 5, on the nomination of party list
representatives, I do not see any provision here which prohibits or for that matter
allows the nominating party to change the nominees or to alter the order of
prioritization of names of nominees. Is the implication correct that at any time after
submission the names could still be changed or the listing altered?
MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished
Gentleman from Albay and perhaps a perfecting amendment may be introduced
therein. The sponsoring committee will gladly consider the same.
MR. LAGMAN: In other words, what I would like to see is that after the list is
submitted to the COMELEC officially, no more changes should be made in the
names or in the order of listing.
MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a
particular nominee has been submitted to the Commission on Elections but before
election day the nominee changed his political party affiliation. The nominee is
therefore no longer qualified to be included in the party list and the political party
has a perfect right to change the name of that nominee who changed his political
party affiliation.
MR. LAGMAN: Yes of course. In that particular case, the change can be effected
but will be the exception rather than the rule. Another exception most probably is
the nominee dies, then there has to be a change but any change for that matter
should always be at the last part of the list so that the prioritization made by the
party will not be adversely affected.37
The usage of "No" in Section 8 "No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the

COMELEC except in cases where the nominee dies, or withdraws in writing his
nomination, or becomes incapacitated, in which case the name of the substitute
nominee shall be placed last in the list" renders Section 8 a negative law, and is
indicative of the legislative intent to make the statute mandatory. Prohibitive or
negative words can rarely, if ever, be directory, for there is but one way to obey the
command "thou shall not," and that is to completely refrain from doing the
forbidden act,38 subject to certain exceptions stated in the law itself, like in this case.
Section 8 does not unduly deprive the party-list organization of its right to choose its
nominees, but merely divests it of the right to change its nominees or to alter the
order in the list of its nominees names after submission of the list to the
COMELEC.
The prohibition is not arbitrary or capricious; neither is it without reason on the part
of lawmakers. The COMELEC can rightly presume from the submission of the list
that the list reflects the true will of the party-list organization. The COMELEC will
not concern itself with whether or not the list contains the real intended nominees of
the party-list organization, but will only determine whether the nominees pass all the
requirements prescribed by the law and whether or not the nominees possess all the
qualifications and none of the disqualifications. Thereafter, the names of the
nominees will be published in newspapers of general circulation. Although the
people vote for the party-list organization itself in a party-list system of election, not
for the individual nominees, they still have the right to know who the nominees of
any particular party-list organization are. The publication of the list of the party-list
nominees in newspapers of general circulation serves that right of the people,
enabling the voters to make intelligent and informed choices. In contrast, allowing
the party-list organization to change its nominees through withdrawal of their
nominations, or to alter the order of the nominations after the submission of the list
of nominees circumvents the voters demand for transparency. The lawmakers
exclusion of such arbitrary withdrawal has eliminated the possibility of such
circumvention.
D
Exceptions in Section 8 of R.A. 7941 are exclusive
Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list
organization can substitute another person in place of the nominee whose name has
been submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the
nominee withdraws in writing his nomination; and (c) when the nominee becomes
incapacitated.

The enumeration is exclusive, for, necessarily, the general rule applies to all cases
not falling under any of the three exceptions.

Lokin insists that the COMELEC gravely abused its discretion in expanding to four
the three statutory grounds for substituting a nominee.

When the statute itself enumerates the exceptions to the application of the general
rule, the exceptions are strictly but reasonably construed. The exceptions extend
only as far as their language fairly warrants, and all doubts should be resolved in
favor of the general provision rather than the exceptions. Where the general rule is
established by a statute with exceptions, none but the enacting authority can curtail
the former. Not even the courts may add to the latter by implication, and it is a rule
that an express exception excludes all others, although it is always proper in
determining the applicability of the rule to inquire whether, in a particular case, it
accords with reason and justice.391avvphi1

We agree with Lokin.

The appropriate and natural office of the exception is to exempt something from the
scope of the general words of a statute, which is otherwise within the scope and
meaning of such general words. Consequently, the existence of an exception in a
statute clarifies the intent that the statute shall apply to all cases not excepted.
Exceptions are subject to the rule of strict construction; hence, any doubt will be
resolved in favor of the general provision and against the exception. Indeed, the
liberal construction of a statute will seem to require in many circumstances that the
exception, by which the operation of the statute is limited or abridged, should
receive a restricted construction.

Indeed, administrative IRRs adopted by a particular department of the Government

under legislative authority must be in harmony with the provisions of the law, and
should be for the sole purpose of carrying the laws general provisions into effect.
The law itself cannot be expanded by such IRRs, because an administrative agency
cannot amend an act of Congress.42

E
Section
13
of
Resolution
No.
the exceptions under Section 8 of R.A. No. 7941

7804

expanded

Section 13 of Resolution No. 7804 states:

Section 13. Substitution of nominees. A party-list nominee may be substituted
only when he dies, or his nomination is withdrawn by the party, or he becomes
incapacitated to continue as such, or he withdraws his acceptance to a
nomination. In any of these cases, the name of the substitute nominee shall be
placed last in the list of nominees.
No substitution shall be allowed by reason of withdrawal after the polls.
Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances,
the fourth being when the "nomination is withdrawn by the party."

The COMELEC, despite its role as the implementing arm of the Government in the
enforcement and administration of all laws and regulations relative to the conduct of
an election,40 has neither the authority nor the license to expand, extend, or add
anything to the law it seeks to implement thereby. The IRRs the COMELEC issues
for that purpose should always accord with the law to be implemented, and should
not override, supplant, or modify the law. It is basic that the IRRs should remain
consistent with the law they intend to carry out.41

The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing
to Section 8 of R.A. No. 7941, 43 because it has merely reworded and rephrased the
statutory provisions phraseology.
The explanation does not persuade.
To reword means to alter the wording of or to restate in other words; to rephrase is
to phrase anew or in a new form. 44 Both terms signify that the meaning of the
original word or phrase is not altered.
However, the COMELEC did not merely reword or rephrase the text of Section 8 of
R.A. No. 7941, because it established an entirely new ground not found in the text of
the provision. The new ground granted to the party-list organization the unilateral
right to withdraw its nomination already submitted to the COMELEC, which
Section 8 of R.A. No. 7941 did not allow to be done. Neither was the grant of the
unilateral right contemplated by the drafters of the law, who precisely denied the
right to withdraw the nomination (as the quoted record of the deliberations of the
House of Representatives has indicated). The grant thus conflicted with the statutory
intent to save the nominee from falling under the whim of the party-list organization
once his name has been submitted to the COMELEC, and to spare the electorate
from the capriciousness of the party-list organizations.

We further note that the new ground would not secure the object of R.A. No. 7941 of
developing and guaranteeing a full, free and open party-list electoral system. The
success of the system could only be ensured by avoiding any arbitrariness on the
part of the party-list organizations, by seeing to the transparency of the system, and
by guaranteeing that the electorate would be afforded the chance of making
intelligent and informed choices of their party-list representatives.
The insertion of the new ground was invalid. An axiom in administrative law
postulates that administrative authorities should not act arbitrarily and capriciously
in the issuance of their IRRs, but must ensure that their IRRs are reasonable and
fairly adapted to secure the end in view. If the IRRs are shown to bear no reasonable
relation to the purposes for which they were authorized to be issued, they must be
held to be invalid and should be struck down.45
F
Effect of partial nullity of Section 13 of Resolution No. 7804
An IRR adopted pursuant to the law is itself law. 46 In case of conflict between the
law and the IRR, the law prevails. There can be no question that an IRR or any of its
parts not adopted pursuant to the law is no law at all and has neither the force nor the
effect of law.47 The invalid rule, regulation, or part thereof cannot be a valid source
of any right, obligation, or power.
Considering that Section 13 of Resolution No. 7804 to the extent that it allows the
party-list organization to withdraw its nomination already submitted to the
COMELEC was invalid, CIBACs withdrawal of its nomination of Lokin and the
others and its substitution of them with new nominees were also invalid and
ineffectual. It is clear enough that any substitution of Lokin and the others could
only be for any of the grounds expressly stated in Section 8 of R.A. No. 7941.
Resultantly, the COMELECs approval of CIBACs petition of withdrawal of the
nominations and its recognition of CIBACs substitution, both through its assailed
September 14, 2007 resolution, should be struck down for lack of legal basis.
Thereby, the COMELEC acted without jurisdiction, having relied on the invalidly
issued Section 13 of Resolution No. 7804 to support its action.
WHEREFORE, we grant the petitions for certiorari and mandamus.
We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent
that it authorizes a party-list organization to withdraw its nomination of a nominee
once it has submitted the nomination to the Commission on Elections.

Accordingly, we annul and set aside:

(a) The resolution dated September 14, 2007 issued in E. M. No. 07-054
approving Citizens Battle Against Corruptions withdrawal of the
nominations of Luis K. Lokin, Jr., Sherwin N. Tugna, and Emil Galang as
its second, third, and fourth nominees, respectively, and ordering their
substitution by Cinchona C. Cruz-Gonzales as second nominee and Armi
Jane R. Borje as third nominee; and
(b) The proclamation by the Commission on Elections of Cinchona C.
Cruz-Gonzales as a Party-List Representative representing Citizens Battle
Against Corruption in the House of Representatives.
We order the Commission on Elections to forthwith proclaim petitioner Luis K.
Lokin, Jr. as a Party-List Representative representing Citizens Battle Against
Corruption in the House of Representatives.
We make no pronouncements on costs of suit.
SO ORDERED.

MAMERTO T. SEVILLA, JR. Petitioner, v. COMMISSION ON ELECTIONS

and RENATO R. SO,Respondents.

should be a clear and distinct presentation of the specific details of how and why a
certain group of ballots should be considered as having been written by one or two
persons.6chanroblesvirtualawlibrary
The Comelec Second Division Ruling

Before this Court is the petition for certiorari, with prayer for the issuance of a Writ
of Preliminary Injunction and/or Status Quo Ante Order,1 filed by petitioner
Mamerto T. Sevilla, Jr., to nullify the May 14, 2012 Resolution 2 of the Commission
on Elections (Comelec) Second Division and the October 6, 2012 Resolution 3 of the
Comelec en banc in SPR (BRGY-SK) No. 70-2011. These assailed Resolutions
reversed and set aside the May 4, 2011 Order of the Muntinlupa City Metropolitan
Trial Court, Branch 80
(MeTC), dismissing respondent Renato R. So's election protest against Sevilla.

In its May 14, 2012 Resolution, the Comelec Second Division granted So's petition.
The Comelec Second Division held that certiorari can be granted despite the
availability of appeals when the questioned order amounts to an oppressive exercise
of judicial authority, as in the case before it. It also ruled that the assailed Order was
fraught with infirmities and irregularities in the appreciation of the ballots, and was
couched in general terms: "these are not written by one person observing the
different strokes, slant, spacing, size and indentation of handwriting and the variance
in writing."7chanroblesvirtualawlibrary

The Facts

The Comelec En Banc Ruling

Sevilla and So were candidates for the position of Punong Barangay of Barangay
Sucat, Muntinlupa City during the October 25, 2010 Barangay and Sangguniang
Kabataan Elections. On October 26, 2010, the Board of Election Tellers proclaimed
Sevilla as the winner with a total of 7,354 votes or a winning margin of 628 votes
over So's 6,726 total votes. On November 4, 2010, So filed an election protest with
the MeTC on the ground that Sevilla committed electoral fraud, anomalies and
irregularities in all the protested precincts. So pinpointed twenty percent (20%) of
the total number of the protested precincts. He also prayed for a manual revision of
the ballots.4chanroblesvirtualawlibrary

The Comelec en banc, by a vote of 3-3, 8 affirmed the Comelec Second Division's
ruling in its October 6, 2012 Resolution whose dispositive portion
reads:chanroblesvirtualawlibrary

Following the recount of the ballots in the pilot protested precincts, the MeTC issued
an Order dated May 4, 2011 dismissing the election protest. On May 9, 2011, So
filed a motion for reconsideration from the dismissal order instead of a notice of
appeal; he also failed to pay the appeal fee within the reglementary period. On May
17, 2011, the MeTC denied the motion for reconsideration on the ground that it was
a prohibited pleading pursuant to Section 1, Rule 6 of A.M. No. 07-04-15SC.5chanroblesvirtualawlibrary
In response, So filed a petition for certiorari on May 31, 2011 with the Comelec,
alleging grave abuse of discretion on the part of the MeTC Judge. So faults the
MeTC for its non-observance of the rule that in the appreciation of ballots, there

WHEREFORE, premises considered, the Motion for Reconsideration is hereby

DENIED for lack of merit. Respondent judge is directed to conduct another revision
of the contested ballots in Election Protest Case No. SP-6719 with
dispatch.9chanroblesvirtualawlibrary
It ruled that where the dismissal was capricious, certiorari lies as the petition
challenges not the correctness but the validity of the order of dismissal. The
Comelec en banc emphasized that procedural technicalities should be disregarded
for the immediate and final resolution of election cases inasmuch as ballots should
be read and appreciated with utmost liberality so that the will of the electorate in the
choice of public officials may not be defeated by technical infirmities.
It found that the MeTC Judge committed grave abuse of discretion amounting to
lack of jurisdiction when she did not comply with the mandatory requirements of
Section 2(d), Rule 14 of A.M. No. 07-4-15-SC on the form of the decision in
election protests involving pairs or groups of ballots written by two persons. It noted
that based on the general and repetitive phraseology of the Order, the MeTC Judge's

findings were "copy-pasted" into the decision and ran counter to the mandate of the
aforementioned rule. Also, the MeTC Judge failed to mention in her appreciation of
the ballots that she examined the Minutes of Voting and Counting to ascertain
whether there were illiterate voters or assisted voters in the protested
precincts.10chanroblesvirtualawlibrary
Commissioner Lim's Dissent 11chanroblesvirtualawlibrary
The dissent posited that So's petition should be dismissed outright as it was mired in
procedural errors. First, So should have filed an appeal within five (5) days from
receipt of the MeTC's Order; a motion for reconsideration was improper as the
Order amounted to the final disposition of the protest. Second, So should not have
filed the motion for reconsideration even if he believed that the Order was
interlocutory since a motion for reconsideration is a prohibited pleading. Also, he
could have simply filed the petition for certiorari without the necessity of filing the
motion for reconsideration. Third, the petition for certiorari cannot be a substitute
for the lost appeal. The Comelec could not even treat the certiorari as an appeal
since the petition was filed 25 days after So received the assailed Order; thus, the
Order already attained finality. Finally, procedural rules should not be lightly
shunned in favor of liberality when, as in this case, So did not give a valid excuse
for his errors.
The Petition
The Comelec gravely abused its discretion when it gave due course to the petition
for certiorari
Sevilla argues that the Comelec gravely abused its discretion when it entertained
So's petition despite its loss of jurisdiction to entertain the petition after the court a
quo's dismissal order became final and executory due to So's wrong choice of
remedy. Instead of filing an appeal within five (5) days from receipt of the Order and
paying the required appeal fee, So filed a motion for reconsideration a prohibited
pleading that did not stop the running of the prescriptive period to file an appeal.
Sevilla also emphasizes that So's petition for certiorari should not have been given
due course since it is not a substitute for an appeal and may only be allowed if there
is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of
law.12chanroblesvirtualawlibrary
The dismissal of the election protest was proper

Sevilla also contends that the dismissal was not tainted with grave abuse of
discretion since the MeTC Judge complied with the rules; she made clear, specific
and detailed explanations pertaining to the specific strokes, figures or letters
showing that the ballots had been written by one person. Granting that the decision
was tainted with errors, certiorari would still not lie because a mere error of
judgment is not synonymous with grave abuse of discretion. Lastly, a liberal
application of the rules cannot be made to a petition which offers no explanation for
the non-observance of the rules.13chanroblesvirtualawlibrary
On November 13, 2012,14 the Court resolved to require the Comelec and the
respondent to comment on the petition and to observe the status quo prevailing
before the issuance of the assailed Comelec Second Division's Resolution of May
14, 2012 and the Comelec en banc's Resolution of October 6,
2012.15chanroblesvirtualawlibrary
In his Comment, the respondent contends that the petition was filed prematurely. He
emphasizes that the October 6, 2012 Resolution of the Comelec en banc was not a
majority decision considering that three Commissioners voted for the denial of the
motion for reconsideration and the three others voted to grant the same. So notes
that the assailed October 6, 2012 Resolution was deliberated upon only by six (6)
Commissioners because the 7th
Commissioner had not yet been appointed by the President at that time. Considering
that the October 6, 2012 Resolution was not a majority decision by the Comelec en
banc, So prays for the dismissal of the petition so that it can be remanded to the
Comelec
for
a
rehearing
by
a
full
and
complete
Commission.16chanroblesvirtualawlibrary
The Court's Ruling
We resolve to DISMISS the petition for having been prematurely filed with this
Court, and remand the case to the COMELEC for its appropriate action.
The October 6, 2012 Comelec en banc's Resolution lacks legal effect as it is not a
majority decision required by the Constitution and by the Comelec Rules of
Procedure
Section 7, Article IX-A of the Constitution requires that "each Commission shall
decide by a majority vote of all its members, any case or matter brought before it
within sixty days from the date of its submission for decision or

resolution."17 Pursuant to this Constitutional mandate, the Comelec provided in

Section 5(a), Rule 3 of the Comelec Rules of Procedure the votes required for the
pronouncement of a decision, resolution, order or ruling when the Comelec sits en
banc, viz.:chanroblesvirtualawlibrary
Section 5. Quorum; Votes Required. - (a) When sitting en banc, four (4) Members of
the Commission shall constitute a quorum for the purpose of transacting business.
The concurrence of a majority of the Members of the Commission shall be
necessary for the pronouncement of a decision, resolution, order or ruling. [italics
supplied; emphasis ours]
We have previously ruled that a majority vote requires a vote of four members of the
Comelec en banc. In Marcoleta v. Commission on Elections, 18 we declared "that
Section 5(a) of Rule 3 of the Comelec Rules of Procedure and Section 7 of Article
IX-A of the Constitution require that a majority vote of all the members of the
Comelec en banc, and not only those who participated and took part in the
deliberations, is necessary for the pronouncement of a decision, resolution, order or
ruling."
In the present case, while the October 6, 2012 Resolution of the Comelec en banc
appears to have affirmed the Comelec Second Division's Resolution and, in effect,
denied Sevilla's motion for reconsideration, the equally divided voting between three
Commissioners concurring and three Commissioners dissenting is not the majority
vote that the Constitution and the Comelec Rules of Procedure require for a valid
pronouncement of the assailed October 6, 2012 Resolution of the Comelec en banc.
In essence, based on the 3-3 voting, the Comelec en banc did not sustain the
Comelec Second Division's findings on the basis of the three concurring votes by
Commissioners Tagle, Velasco and Yusoph; conversely, it also did not overturn the
Comelec Second Division on the basis of the three dissenting votes by Chairman
Brillantes, Commissioner Sarmiento and Commissioner Lim, as either side was
short of one (1) vote to obtain a majority decision. Recall that under Section 7,
Article IX-A of the Constitution, a majority vote of all the members of the
Commission en banc is necessary to arrive at a ruling. In other words, the vote of
four (4) members must always be attained in order to decide, irrespective of the
number of Commissioners in attendance. Thus, for all intents and purposes, the
assailed October 6, 2012 Resolution of the Comelec en banc had no legal effect
whatsoever except to convey that the Comelec failed to reach a decision and that
further action is required.

The October 6, 2012 Comelec en banc's Resolution must be reheard pursuant to the
Comelec Rules of Procedure
To break the legal stalemate in case the opinion is equally divided among the
members of the Comelec en banc, Section 6, Rule 18 of the Comelec Rules of
Procedure mandates a rehearing where parties are given the opportunity anew to
strengthen their respective positions or arguments and convince the members of the
Comelec en banc of the merit of their case. 19 Section 6, Rule 18 of the Comelec
Rules of Procedure reads:chanroblesvirtualawlibrary
Section 6. Procedure if Opinion is Equally Divided. - When the Commission en
banc is equally divided in opinion, or the necessary majority cannot be had, the case
shall be reheard, and if on rehearing no decision is reached, the action or proceeding
shall be dismissed if originally commenced in the Commission; in appealed cases,
the judgment or order appealed from shall stand affirmed; and in all incidental
matters, the petition or motion shall be denied. [emphasis ours; italics supplied]
In Juliano v. Commission on Elections, 20 only three members of the Comelec en
banc voted in favor of granting Estrelita Juliano's motion for reconsideration (from
the Decision of the Comelec Second Division dismissing her petition for annulment
of proclamation of Muslimin Sema as the duly elected Mayor of Cotabato City),
three members dissented, and one member took no part. In ruling that the Comelec
acted with grave abuse of discretion when it failed to order a rehearing required by
the Comelec Rules of Procedure, the Court ruled:chanroblesvirtualawlibrary
Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that if the
opinion of the Comelec En Banc is equally divided, the case shall be reheard. The
Court notes, however, that the Order of the Comelec En Banc dated February 10,
2005 clearly stated that what was conducted was a mere "re-consultation."
A "re-consultation" is definitely not the same as a "rehearing."
A consultation is a "deliberation of persons on some subject;" hence, a reconsultation means a second deliberation of persons on some subject.
Rehearing is defined as a "second consideration of cause for purpose of calling to
court's or administrative board's attention any error, omission, or oversight in first
consideration. A retrial of issues presumes notice to parties entitled thereto and
opportunity for them to be heard." (italics supplied). But as held in Samalio v. Court
of Appeals,

A formal or trial-type hearing is not at all times and in all instances essential. The
requirements are satisfied where the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand.
Thus, a rehearing clearly presupposes the participation of the opposing parties for
the purpose of presenting additional evidence, if any, and further clarifying and
amplifying their arguments; whereas, a re-consultation involves a re-evaluation of
the issues and arguments already on hand only by the members of the tribunal,
without the participation of the parties.
In Belac v. Comelec, when the voting of the Comelec En Banc on therein petitioner's
motion for reconsideration was equally divided, the Comelec En Banc first issued an
order setting the case for hearing and allowed the parties to submit their respective
memoranda before voting anew on therein petitioner's motion for reconsideration.
This should have been the proper way for the Comelec En Banc to act on herein
petitioner's motion for reconsideration when the first voting was equally divided. Its
own Rules of Procedure calls for a rehearing where the parties would have the
opportunity to strengthen their respective positions or arguments and convince the
members of the Comelec En Banc of the merit of their case. Thus, when the
Comelec En Banc failed to give petitioner the rehearing required by the Comelec
Rules of Procedure, said body acted with grave abuse of discretion. 21 (italics
supplied; emphases ours)
To the same effect, in Marcoleta v. Commission on Elections, 22 the Court ruled that
the Comelec en banc did not gravely abuse its discretion when it ordered a rehearing
of its November 6, 2007 Resolution for failing to muster the required majority
voting. The Court held:chanroblesvirtualawlibrary
The Comelec, despite the obvious inclination of three commissioners to affirm the
Resolution of the First Division, cannot do away with a rehearing since its Rules
clearly provide for such a proceeding for the body to have a solicitous review of the
controversy before it. A rehearing clearly presupposes the participation of the
opposing parties for the purpose of presenting additional evidence, if any, and
further clarifying and amplifying their arguments.
To reiterate, neither the assenters nor dissenters can claim a majority in the En Banc
Resolution of November 6, 2007. The Resolution served no more than a record of
voters, lacking in legal effect despite its pronouncement of reversal of the First
Division Resolution. According, the Comelec did not commit any grave abuse of
discretion in ordering a rehearing.23 (italics supplied; citation omitted)

In the present case, it appears from the records that the Comelec en banc did not
issue an Order for a rehearing of the case in view of the filing in the interim of the
present petition for certiorari by Sevilla. In both the cases of Juliano and Marcoleta,
cited above, we remanded the cases to the Comelec en banc for the conduct of the
required rehearing pursuant to the Comelec Rules of Procedure. Based on these
considerations, we thus find that a remand of this case is necessary for the Comelec
en banc to comply with the rehearing requirement of Section 6, Rule 18 of the
Comelec Rules of Procedure.
WHEREFORE, we hereby DISMISS the petition and REMAND SPR (BR GY-SK)
No. 70-2011 to the Comelec en bane for the conduct of the required rehearing under
the Comelec Rules of Procedure. The Comelec en bane is hereby ORDERED to
proceed with the rehearing with utmost dispatch.
No costs.
SO ORDERED.

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B.
TAN, Respondents.

This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013

which stated that: IN VIEW OF THE FOREGOING, the instant petition is
DISMISSED, finding no grave abuse of discretion on the part of the Commission on
Elections. The 14 May 2013 Resolution of the COMELEC En Banc affirming the 27
March 2013 Resolution of the COMELEC First Division is upheld."
In her Motion for Reconsideration, petitioner summarizes her submission, thus:
"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to
make a determination as regards her qualifications, she is merely asking the
Honorable Court to affirm the jurisdiction of the HRET to solely and exclusively
pass upon such qualifications and to set aside the COMELEC Resolutions for having
denied Petitioner her right to due process and for unconstitutionally adding a
qualification not otherwise required by the constitution."1 (as originally underscored)
The first part of the summary refers to the issue raised in the petition, which is:
"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who
is duly proclaimed winner and who has already taken her oath of office for the
position of Member of the House of Representatives for the lone congressional
district of Marinduque."2
Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go
thus: petitioner is a duly proclaimed winner and having taken her oath of office as
member of the House of Representatives, all questions regarding her qualifications
are outside the jurisdiction of the COMELEC and are within the HRET exclusive
jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner's

submission. The crucial question is whether or not petitioner could be proclaimed on
18 May 2013. Differently stated, was there basis for the proclamation of petitioner
on 18 May 2013?
Dates and events indicate that there was no basis for the proclamation of petitioner
on 18 May 2013. Without the proclamation, the petitioner's oath of office is likewise
baseless, and without a precedent oath of office, there can be no valid and effective
assumption of office.
We have clearly stated in our Resolution of 5 June 2013 that:
"More importantly, we cannot disregard a fact basic in this controversy that before
the proclamation of petitioner on 18 May 2013, the COMELEC En Banc had
already finally disposed of the issue of petitioner's lack of Filipino citizenship and
residency via its Resolution dated 14 May 2013. After 14 May 2013, there was,
before the COMELEC, no longer any pending case on petitioner's qualifications to
run for the position of Member of the House of Representatives. x x x As the point
has obviously been missed by the petitioner who continues to argue on the basis of
her due proclamation, the instant motion gives us the opportunity to highlight the
undeniable fact we here repeat that the proclamation which petitioner secured on 18
May 2013 was WITHOUT ANY BASIS.
1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May
2013, the COMELEC En Banc has already denied for lack o merit the
petitioner's motion to reconsider the decision o the COMELEC First
Division that CANCELLED petitioner's certificate of candidacy.
2. On 18 May 2013, there was already a standing and unquestioned
cancellation of petitioner's certificate o candidacy which cancellation is a
definite bar to her proclamation. On 18 May 2003, that bar has not been
removed, there was not even any attempt to remove it.
3. The COMELEC Rules indicate the manner by which the impediment to
proclamation may be removed. Rule 18, Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or resolution of the

Commission En Bane shall become final and executory after five (5) days
from its promulgation unless restrained by the Supreme Court."
Within that five (5 days, petitioner had the opportunity to go to the
Supreme Court for a restraining order that will remove the immediate
effect of the En Banc cancellation of her certificate of candidacy. Within
the five (5) days the Supreme Court may remove the barrier to, and thus
allow, the proclamation of petitioner. That did not happen. Petitioner did
not move to have it happen.
It is error to argue that the five days should pass before the petitioner is
barred from being proclaimed. Petitioner lost in the COMELEC as of
respondent. Her certificate of candidacy has been ordered cancelled. She
could not be proclaimed because there was a final finding against her by
the COMELEC.3 She needed a restraining order from the Supreme Court
to avoid the final finding. After the five days when the decision adverse to
her became executory, the need for Supreme Court intervention became
even more imperative. She would have to base her recourse on the
position that the COMELEC committed grave abuse of discretion in
cancelling her certificate of candidacy and that a restraining order, which
would allow her proclamation, will have to be based on irreparable injury
and demonstrated possibility of grave abuse of discretion on the part of the
COMELEC. In this case, before and after the 18 May 2013 proclamation,
there was not even an attempt at the legal remedy, clearly available to her,
to permit her proclamation. What petitioner did was to "take the law into
her hands" and secure a proclamation in complete disregard of the
COMELEC En Bane decision that was final on 14 May 2013 and final and
executory five days thereafter.
4. There is a reason why no mention about notice was made in Section
13(b) of Rule 18 in the provision that the COMELEC En Bane or decision
"SHALL become FINAL AND EXECUTORY after five days from its
promulgation unless restrained by the Supreme Court." On its own the
COMELEC En Bane decision, unrestrained, moves from promulgation
into becoming final and executory. This is so because in Section 5 of Rule
18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or resolutions of the

Commission or a division shall be made on a date previously fixed, of which notice
shall be served in advance upon the parties or their attorneys personally or by
registered mail or by telegram.
5. Apart from the presumed notice of the COMELEC En Bane decision on
the very date of its promulgation on 14 May 2013, petitioner admitted in
her petition before us that she in fact received a copy of the decision on 16
May 20 13.4 On that date, she had absolutely no reason why she would
disregard the available legal way to remove the restraint on her
proclamation, and, more than that, to in fact secure a proclamation two
days thereafter. The utter disregard of a final COMELEC En Bane
decision and of the Rule stating that her proclamation at that point MUST
be on permission by the Supreme Court is even indicative of bad faith on
the part of the petitioner.
6. The indicant is magnified by the fact that petitioner would use her
tainted proclamation as the very reason to support her argument that she
could no longer be reached by the jurisdiction of the COMELEC; and that
it is the HRET that has exclusive jurisdiction over the issue of her
qualifications for office.
7. The suggestions of bad faith aside, petitioner is in error in the
conclusion at which she directs, as well as in her objective quite obvious
from such conclusion. It is with her procured proclamation that petitioner
nullifies the COMELEC's decision, by Division and then En Banc and
pre-empts any Supreme Court action on the COMELEC decision. In other
words, petitioner repudiates by her proclamation all administrative and
judicial actions thereon, past and present. And by her proclamation, she
claims as acquired the congressional seat that she sought to be a candidate
for. As already shown, the reasons that lead to the impermissibility of the
objective are clear. She cannot sit as Member of the House of
Representatives by virtue of a baseless proclamation knowingly taken,
with knowledge of the existing legal impediment.
8. Petitioner, therefore, is in error when she posits that at present it is the
HRET which has exclusive jurisdiction over her qualifications as a
Member of the House of Representatives. That the HRET is the sole judge
of all contests relating to the election, returns and qualifications of the
Members of the House of Representatives is a written constitutional

provision. It is, however unavailable to petitioner because she is NOT a

Member of the House at present. The COMELEC never ordered her
proclamation as the rightful winner in the election for such
membership.5 Indeed, the action for cancellation of petitioner's certificate
of candidacy, the decision in which is the indispensable determinant of the
right of petitioner to proclamation, was correctly lodged in the
COMELEC, was completely and fully litigated in the COMELEC and was
finally decided by the COMELEC. On and after 14 May 2013, there was
nothing left for the COMELEC to do to decide the case. The decision
sealed the proceedings in the COMELEC regarding petitioner's
ineligibility as a candidate for Representative of Marinduque. The decision
erected the bar to petitioner's proclamation. The bar remained when no
restraining order was obtained by petitioner from the Supreme Court
within five days from 14 May 2013.
9. When petitioner finally went to the Supreme Court on 10 June 2013
questioning the COMELEC First Division ruling and the 14 May 2013
COMELEC En Bane decision, her baseless proclamation on 18 May 2013
did not by that fact of promulgation alone become valid and legal. A
decision favorable to her by the Supreme Court regarding the decision of
the COMELEC En Bane on her certificate of candidacy was indispensably
needed, not to legalize her proclamation on 18 May 2013 but to authorize
a proclamation with the Supreme Court decision as basis.
10. The recourse taken on 25 June 2013 in the form of an original and
special civil action for a writ of Certiorari through Rule 64 of the Rules of
Court is circumscribed by set rules and principles.
a) The special action before the COMELEC which was a
Petition to Cancel Certificate of Candidacy was a SUMMARY
PROCEEDING or one heard summarily. The nature of the
proceedings is best indicated by the COMELEC Rule on Special
Actions, Rule 23, Section 4 of which states that the Commission
may designate any of its officials who are members of the
Philippine Bar to hear the case and to receive evidence.
COMELEC Rule 17 further provides in Section 3 that when the
proceedings are authorized to be summary, in lieu of oral
testimonies, the parties may, after due notice, be required to
submit their position paper together with affidavits, counteraffidavits and other documentary evidence; x x x and that this
provision shall likewise apply to cases where the hearing and

reception of evidence are delegated by the Commission or the

Division to any of its officials x x x.
b) The special and civil action of Certiorari is defined in the
Rules of Court thus:
When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.
The accepted definition of grave abuse of discretion is: a capricious and whimsical
exercise of judgment so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, as where the power is
exercised in an arbitrary and despotic manner because of passion or hostility.6
It is the category of the special action below providing the procedural leeway in the
exercise of the COMELEC summary jurisdiction over the case, in conjunction with
the limits of the Supreme Court's authority over the FINAL COMELEC ruling that
is brought before it, that defines the way petitioner's submission before the Court
should be adjudicated. Thus further explained, the disposition of 25 June 2013 is
here repeated for affirmation:
Petitioner alleges that the COMELEC gravely abused its discretion when it took
cognizance of "newly-discovered evidence" without the same having been testified
on and offered and admitted in evidence. She assails the admission of the blog
article of Eli Obligacion as hearsay and the photocopy of the Certification from the
Bureau of Immigration. She likewise contends that there was a violation of her right
to due process of law because she was not given the opportunity to question and
present controverting evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to strictly adhere to the
technical rules of procedure in the presentation of evidence. Under Section 2 of Rule
I the COMELEC Rules of Procedure shall be liberally construed in order x x x to

achieve just, expeditious and inexpensive determination and disposition of every

action and proceeding brought before the Commission. In view of the fact that the
proceedings in a petition to deny due course or to cancel certificate of candidacy are
summary in nature, then the newly discovered evidence was properly admitted by
respondent COMELEC.

In the case at bar, there s no showing that respondent complied with the aforesaid
requirements. Early on in the proceeding, respondent hammered on petitioner's lack
of proof regarding her American citizenship, contending that it is petitioner's burden
to present a case. She, however, specifically denied that she has become either a
permanent resident or naturalized citizen of the USA.

Furthermore, there was no denial of due process in the case at bar as petitioner was
given every opportunity to argue her case before the COMELEC. From 10 October
2012 when Tan's petition was filed up to 27 March 2013 when the First Division
rendered its resolution, petitioner had a period of five (5) months to adduce
evidence. Unfortunately, she did not avail herself of the opportunity given her.

Due to petitioner's submission of newly-discovered evidence thru a Manifestation

dated February 7, 2013, however, establishing the fact that respondent is a holder of
an American passport which she continues to use until June 30 2012 petitioner was
able to substantiate his allegations. The burden now shifts to respondent to present
substantial evidence to prove otherwise. This, the respondent utterly failed to do,
leading to the conclusion inevitable that respondent falsely misrepresented in her
COC that she is a natural-born Filipino citizen. Unless and until she can establish
that she had availed of the privileges of RA 9225 by becoming a dual FilipinoAmerican citizen, and thereafter, made a valid sworn renunciation of her American
citizenship, she remains to be an American citizen and is, therefore, ineligible to run
for and hold any elective public office in the Philippines." (Emphasis in the
original.)

Also, in administrative proceedings, procedural due process only requires that the
party be given the opportunity or right to be heard. As held in the case of Sahali v.
COMELEC:
The petitioners should be reminded that due process does not necessarily mean or
require a hearing, but simply an opportunity or right to be heard. One may be heard,
not solely by verbal presentation but also, and perhaps many times more creditably
and predictable than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly applied;
administrative process cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully invoked where a
party was given the chance to be he rd on his motion for reconsideration. (Emphasis
supplied)
As to the ruling that petitioner s ineligible to run for office on the ground of
citizenship, the COMELEC First Division, discoursed as follows:
"x x x for respondent to reacquire her Filipino citizenship and become eligible for
public office the law requires that she must have accomplished the following acts:
(1) take the oath of allegiance to the Republic of the Philippines before the ConsulGeneral of the Philippine Consulate in the USA; and (2) make a personal and sworn
renunciation of her American citizenship before any public officer authorized to
administer an oath.

Let us look into the events that led to this petition: In moving for the cancellation of
petitioner's COC, respondent submitted records of the Bureau of Immigration
showing that petitioner is a holder of a US passport, and that her status is that of a
balikbayan. At this point, the burden of proof shifted to petitioner, imposing upon
her the duty to prove that she is a natural-born Filipino citizen and has not lost the
same, or that she has re-acquired such status in accordance with the provisions of
R.A. No. 9225. Aside from the bare allegation that she is a natural-born citizen,
however, petitioner submitted no proof to support such contention. Neither did she
submit any proof as to the inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En Bane,
petitioner admitted that she is a holder of a US passport, but she averred that she is
only a dual Filipino-American citizen, thus the requirements of R.A. No. 9225 do
not apply to her. Still, attached to the said motion is an Affidavit of Renunciation of
Foreign Citizenship dated 24 September 2012. Petitioner explains that she attached
said Affidavit if only to show her desire and zeal to serve the people and to comply
with rules, even as a superfluity. We cannot, however, subscribe to petitioner's
explanation. If petitioner executed said Affidavit if only to comply with the rules,
then it is an admission that R.A. No. 9225 applies to her. Petitioner cannot claim that
she executed it to address the observations by the COMELEC as the assailed
Resolutions were promulgated only in 2013, while the Affidavit was executed in
September 2012.1wphi1

Moreover, in the present petition, petitioner added a footnote to her oath of office as
Provincial Administrator, to this effect: This does not mean that Petitioner did not,
prior to her taking her oath of office as Provincial Administrator, take her oath of
allegiance for purposes of re-acquisition of natural-born Filipino status, which she
reserves to present in the proper proceeding. The reference to the taking of oath of
office is in order to make reference to what is already part of the records and
evidence in the present case and to avoid injecting into the records evidence on
matters of fact that was not previously passed upon by Respondent COMELEC.
This statement raises a lot of questions -Did petitioner execute an oath of allegiance
for re-acquisition of natural-born Filipino status? If she did, why did she not present
it at the earliest opportunity before the COMELEC? And is this an admission that
she has indeed lost her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225,
petitioner contends that, since she took her oath of allegiance in connection with her
appointment as Provincial Administrator of Marinduque, she is deemed to have
reacquired her status as a natural-born Filipino citizen.
This contention is misplaced. For one, this issue is being presented for the first time
before this Court, as it was never raised before the COMELEC. For another, said
oath of allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as
certain requirements have to be met as prescribed by Memorandum Circular No.
AFF-04-01, otherwise known as the Rules Governing Philippine Citizenship under
R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised Rules) and
Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration.
Thus, petitioner s oath of office as Provincial Administrator cannot be considered as
the oath of allegiance in compliance with R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly cast on petitioner
s citizenship. Petitioner, however, failed to clear such doubt. 7
11. It may need pointing out that there is no conflict between the
COMELEC and the HRET insofar as the petitioner s being a
Representative of Marinduque is concerned. The COMELEC covers the
matter of petitioner s certificate of candidacy, and its due course or its
cancellation, which are the pivotal conclusions that determines who can be
legally proclaimed. The matter can go to the Supreme Court but not as a
continuation of the proceedings in the COMELEC, which has in fact
ended, but on an original action before the Court grounded on more than
mere error of judgment but on error of jurisdiction for grave abuse of

discretion. At and after the COMELEC En Bane decision, there is no

longer any certificate cancellation matter than can go to the HRET. In that
sense, the HRET s constitutional authority opens, over the qualification of
its MEMBER, who becomes so only upon a duly and legally based
proclamation, the first and unavoidable step towards such membership.
The HRET jurisdiction over the qualification of the Member of the House
of Representatives is original and exclusive, and as such, proceeds de
novo unhampered by the proceedings in the COMELEC which, as just
stated has been terminated. The HRET proceedings is a regular, not
summary, proceeding. It will determine who should be the Member of the
House. It must be made clear though, at the risk of repetitiveness, that no
hiatus occurs in the representation of Marinduque in the House because
there is such a representative who shall sit as the HRET proceedings are
had till termination. Such representative is the duly proclaimed winner
resulting from the terminated case of cancellation of certificate of
candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute between the
parties: who shall sit in the House in representation of Marinduque, while
there is yet no HRET decision on the qualifications of the Member.
12. As finale, and as explained in the discussion just done, no unwarranted
haste can be attributed, as the dissent does so, to the resolution of this
petition promulgated on 25 June 2013. It was not done to prevent the
exercise by the HRET of its constitutional duty. Quite the contrary, the
speedy resolution of the petition was done to pave the way for the
unimpeded performance by the HRET of its constitutional role. The
petitioner can very well invoke the authority of the HRET, but not as a
sitting member of the House of Representatives. 8
The inhibition of this ponente was moved for. The reason for the denial of the
motion was contained in a letter to the members of the Court on the understanding
that the matter was internal to the Court. The ponente now seeks the Courts approval
to have the explanation published as it is now appended to this Resolution.
The motion to withdraw petition filed AFTER the Court has acted thereon, is noted.
It may well be in order to remind petitioner that jurisdiction, once acquired, is not
lost upon the instance of the parties, but continues until the case is
terminated.9 When petitioner filed her Petition for Certiorari jurisdiction vested in
the Court and, in fact, the Court exercised such jurisdiction when it acted on the
petition. Such jurisdiction cannot be lost by the unilateral withdrawal of the petition
by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance,
undoubtedly has legal consequences. Petitioner cannot, by the mere expediency of
withdrawing the petition, negative and nullify the Court's Resolution and its legal
effects. At this point, we counsel petitioner against trifling with court processes.
Having sought the jurisdiction of the Supreme Court, petitioner cannot withdraw her
petition to erase the ruling adverse to her interests. Obviously, she cannot, as she
designed below, subject to her predilections the supremacy of the law.
WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the
petition is affirmed. Entry of Judgment is ordered.
SO ORDERED.

LUCITA Q. GARCES, petitioner, vs. THE HONORABLE COURT OF

APPEALS, SALVADOR EMPEYNADO and CLAUDIO
CONCEPCION, respondents.

Questioned in this petition for review is the decision [1] of the Court of
Appeals[2] (CA), as well as its resolution, which affirmed the decision of the
Regional Trial Court[3] (RTC) of Zamboanga del Norte in dismissing a petition for
mandamus against a Provincial Election Supervisor and an incumbent Election
Registrar.
The undisputed facts are as follows:
Petitioner Lucita Garces was appointed Election Registrar of Gutalac,
Zamboanga del Norte on July 27, 1986. She was to replace respondent Election
Registrar Claudio Concepcion, who, in turn, was transferred to Liloy, Zamboanga
del Norte.[4] Correspondingly approved by the Civil Service Commission, [5] both
appointments were to take effect upon assumption of office. Concepcion, however,
refused to transfer post as he did not request for it. [6] Garces, on the other hand, was
directed by the Office of Assistant Director for Operations to assume the Gutalac
post.[7] But she was not able to do so because of a Memorandum issued by
respondent Provincial Election Supervisor Salvador Empeynado that prohibited her
from assuming office in Gutalac as the same is not vacant. [8]
On February 24, 1987, Garces was directed by the same Office of Assistant
Director to defer her assumption of the Gutalac post. On April 15, 1987, she
received a letter from the Acting Manager, Finance Service Department, with an
enclosed check to cover for the expenses on construction of polling booths. It was
addressed Mrs. Lucita Garces E.R. Gutalac, Zamboanga del Norte which Garces
interpreted to mean as superseding the deferment order. [9] Meanwhile, since
respondent Concepcion continued occupying the Gutalac office, the COMELEC en
banc cancelled his appointment to Liloy.[10]
On February 26, 1988, Garces filed before the RTC a petition for mandamus
with preliminary prohibitory and mandatory injunction and damages against
Empeynado[11] and Concepcion, among others. Meantime, the COMELEC en
banc through a Resolution dated June 3, 1988, resolved to recognize respondent
Concepcion as the Election Registrar of Gutalac, [12] and ordered that the

appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled. [13] In

view thereof, respondent Empeynado moved to dismiss the petition for mandamus
alleging that the same was rendered moot and academic by the said COMELEC
Resolution, and that the case is cognizable only by the COMELEC under Sec. 7 Art.
IX-A of the 1987 Constitution. The RTC, thereafter, dismissed the petition for
mandamus on two grounds, viz., (1) that quo warranto is the proper remedy,[14]and
(2) that the cases or matters referred under the constitution pertain only to those
involving the conduct of elections. On appeal, respondent CA affirmed the RTCs
dismissal of the case. Hence, this petition.
The issues raised are purely legal. First, is petitioners action for mandamus
proper? And, second, is this case cognizable by the RTC or by the Supreme Court?
On the first issue, Garces claims that she has a clear legal right to the Gutalac
post which was deemed vacated at the time of her appointment and
qualification. Garces insists that the vacancy was created by Section 2, Article III of
the Provisional Constitution.[15] On the contrary, Concepcion posits that he did not
vacate his Gutalac post as he did not accept the transfer to Liloy.
Article III Section 2 of the Provisional Constitution provides:
All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive order
or upon the designation or appointment and qualification of their successors, if such
is made within a period of one year from February 25, 1986. (Italics supplied)
The above organic provision did not require any cause for removal of an appointive
official under the 1973 Constitution. [16] The transition period from the old to the new
Constitution envisioned an automatic vacancy; [17] hence the government is not hard
put to prove anything plainly and simply because the Constitution allows it. [18] Mere
appointment and qualification of the successor removes an incumbent from his
post. Nevertheless, the government in an act of auto-limitation and to prevent
indiscriminate dismissal of government personnel issued on May 28, 1986,
Executive Order (E.O.) No. 17. This executive order, which applies in this case as it
was passed prior to the issuance of Concepcions transfer order, enumerates five
grounds for separation or replacement of elective and appointive officials authorized
under Article III, Section 2 of the Provisional Constitution, to wit:

1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil

Service Law;

claimed by another and has as its object the ouster of the holder from its enjoyment,
while mandamus avails to enforce clear legal duties and not to try disputed titles. [27]

2. Existence of the probable cause for violation of the Anti-Graft and Corrupt
Practices Act as determined by the Ministry Head concerned;

Garces heavy reliance with the 1964 Tulawie[28] case is misplaced for material
and different factual considerations. Unlike in this case, the disputed office of
Assistant Provincial Agriculturist in the case of Tulawie is clearly vacant and
petitioner Tulawies appointment was confirmed by the higher authorities making his
claim to the disputed position clear and certain. Tulawies petition for mandamus,
moreover, was against the Provincial Agriculturist who never claimed title to the
contested office. In this case, there was no vacancy in the Gutalac post and
petitioners appointment to which she could base her claim was revoked making her
claim uncertain.

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to remain in the
service or his separation/replacement is in the interest of the service.
Not one of these grounds was alleged to exist, much less proven by petitioner when
respondent Concepcion was transferred from Gutalac to Liloy. More, Concepcion
was transferred without his consent. A transfer requires a prior appointment. [19] If the
transfer was made without the consent of the official concerned, it is tantamount to
removal without valid cause[20] contrary to the fundamental guarantee on nonremoval except for cause.[21] Concepcions transfer thus becomes legally infirm and
without effect for he was not validly terminated. His appointment to the Liloy post,
in fact, was incomplete because he did not accept it. Acceptance, it must be
emphasized, is indispensable to complete an appointment. [22] Corollarily,
Concepcions post in Gutalac never became vacant. It is a basic precept 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. [23] There can be no
appointment to a non-vacant position. The incumbent must first be legally removed,
or his appointment validly terminated before one could be validly installed to
succeed him. Further, Garces appointment was ordered to be deferred by the
COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her
appointment to Gutalac was even cancelled by the COMELEC en banc.
These factors negate Garces claim for a well-defined, clear, certain legal right
to the Gutalac post. On the contrary, her right to the said office is manifestly
doubtful and highly questionable. As correctly ruled by respondent court,
mandamus, which petitioner filed below, will not lie as this remedy applies only
where petitioners right is founded clearly in law and not when it is doubtful. [24] It
will not issue to give him something to which he is not clearly and conclusively
entitled.[25] Considering that Concepcion continuously occupies the disputed position
and exercises the corresponding functions therefore, the proper remedy should have
been quo warranto and not mandamus.[26] Quo warranto tests the title to ones office

Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent
Empeynado[29] contending that this is a case or matter cognizable by the COMELEC
under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution
cancelling the appointment of Garces as Election Registrar of Gutalac, he argues,
should be raised only on certiorari before the Supreme Court and not before the
RTC, else the latter court becomes a reviewer of an en banc COMELEC resolution
contrary to Sec. 7, Art. IX-A.
The contention is without merit. Sec. 7, Art. IX-A of the Constitution
provides:
Each commission shall decide by a majority vote of all its members
any case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last pleading, brief, or memorandum
required by the rules of the commission or by the commission itself. Unless
otherwise provided by this constitution or by law, any decision, order, or ruling of
each commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.
This provision is inapplicable as there was no case or matter filed before the
COMELEC. On the contrary, it was the COMELECs resolution that triggered this
Controversy. The case or matter referred to by the constitution must be something
within the jurisdiction of the COMELEC, i.e., it must pertain to an election
dispute. The settled rule is that decision, rulings, order of the COMELEC that may

be brought to the Supreme Court on certiorari under Sec. 7 Art. IX-A are those that
relate to the COMELECs exercise of its adjudicatory or quasi-judicial
powers[30] involving elective regional, provincial and city officials. [31] In this case,
what is being assailed is the COMELECs choice of an appointee to occupy the
Gutalac Post which is an administrative duty done for the operational set-up of an
agency.[32] The controversy involves an appointive, not an elective, official. Hardly
can this matter call for the certiorari jurisdiction of the Supreme Court. To rule
otherwise would surely burden the Court with trivial administrative questions that
are best ventilated before the RTC, a court which the law vests with the power to

exercise original jurisdiction over all cases not within the exclusive jurisdiction of
any court, tribunal, person or body exercising judicial or quasi-judicial functions. [33]
WHEREFORE, premises considered, the petition for review is hereby
DENIED without prejudice to the filing of the proper action with the appropriate
body.
SO ORDERED.