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G.R. No.

L-30057 January 31, 1984

BRUNO O. APARRI, petitioner,


vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS O. FORTICH,
as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP,
as members of the Board of Directors of the defunct National Resettlement and Rehabilitation
Administration (NARRA), respondents.

Enrique D. Tayag for petitioner.

Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

MAKASIAR, J.:

This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate
Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First
Instance (now Regional Trial Court), the dispositive portion of which is as follows:

WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present
petition for mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.).

The facts of the case are as follows:

On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National
Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954
NARRA) approved the following resolution:

RESOLUTION NO. 13 (Series of 1960)

RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the
National Resettlement and Rehabilitation Administration (NARRA) with all the rights,
prerogatives and compensation appurtenant thereto to take effect on January 16, 1960);

RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the
above appointment of Mr. Aparri (p. 2, rec.).

Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board,
appointed petitioner Bruno O. Aparri as reflected in the following letter:

Manila, January 22,


1960

Mr. Bruno O. Aparri c/o NARRA, Manila

SIR:

You are hereby appointed as GENERAL MANAGER in the National Resettlement and
Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE THOUSAND
(P12,000.00) PESOS per annum the appointment to take effect January 16,1960 . . . .
REINSTATEMENT ... (p. 2, rec.).

The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph
(2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit:

Sec. 8. Powers and Duties of the Board of Directors. The Board of Directors shall have the
following powers and duties: ...

2) To appoint and fix the term of office of General Manager ..., subject to the recommendation of
the Office of Economic Coordination and the approval of the President of the
Philippines, .... The Board, by a majority vote of all members, may, for cause, upon
recommendation of the Office of Economic Coordination and with the approval of the President
of the Philippines, suspend and/or remove the General Manager and/or the Assistant General
Manager (p. 46, rec., emphasis supplied).

On March 15, 1962, the same Board of Directors approved the following resolution:

RESOLUTION NO. 24 (Series of 1962)

WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the desire of
the Office of the President Malacanang, Manila, to fix the term of office of the incumbent
General Manager up to the close of office hours on March 31, 1962, in accordance with the
provision of Section 8, sub-section 2 of R.A. No. 1160;

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of Directors


hereby fix, as it is hereby fixed, the term of office of the incumbent General Manager of the
National Resettlement and Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7,
rec., emphasis supplied).

Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First Instance of
Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA Board dated March 15,
1962, to command the Board to allow petitioner to continue in office as General Manager until he vacates said
office in accordance with law and to sentence the private respondents jointly and severally to pay the petitioner
actual damages in the sum of P95,000.00, plus costs.

On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No. 3844,
otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the NARRA (Sec.
73, R.A. 3844) and transferred its functions and powers to the Land Authority. On October 21, 1963, the then
Court of First Instance of Manila rendered judgment, finding "that this case has become academic by reason of
the approval of the Agricultural Land Reform Code (Republic Act No. 3844) and thereby dismissing the instant
petition without pronouncement as to costs" (p. 5, rec.).

On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice Antonio C.
Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus. Pertinent provisions
of the decision are as follows:

xxx xxx xxx

In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position of
General Manager without fixed term and his appointment is, in essence, terminable at the
pleasure of the appointing power which, in this case, is the Board of Directors. Where, as in the
case at bar, the appointing officer, that is, the Board of Directors, had fixed the term of office of
the incumbent Manager to end on March 31, 1962, the replacement of Bruno O. Aparri is not
removal but by reason of the term of his office which is one of the recognized modes of
terminating official relations. Considering that the term of office of the General Manager of the
NARRA is not fixed by law nor has it been fixed by the Board of Directors at the time of his
appointment although it had the power to do so, it is obvious that the term of office of herein
petitioner Bruno O. Aparri expired on March 31, 1962 and his right to hold the said office was
thereby extinguished. In other words, Bruno O. Aparri cessation from office invokes no removal
but merely the expiration of the term of office which was within the power of the Board of
Directors to fix. Hence, Bruno O. Aparri continues only for so long as the term of his office has
not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals,
pp. 48-49, rec., emphasis supplied].

The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10, 1969.

On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then Court of
Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in a
resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on February 11, 1969,
the petition was given due course (p. 66, rec.).

The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962) was a
removal or dismissal of petitioner without cause.

WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962.

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public
Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a
natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly
creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in
an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary
(42 Am. Jur. 881).

The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic Act No.
1160 (approved June 18,1954), which provides that:

Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION ... there is


hereby created a corporation to be known as National Resettlement and Rehabilitation
Administration hereafter referred to as "NARRA" to perform under the supervision and control of
the President of the Philippines, through the Office of Economic Coordinator all the duties and
functions of the Bureau of Lands as provided for in Commonwealth Act numbered Six Hundred
and Ninety-one, as amended, and such other duties as are hereinafter specified in this Act. It
shall be headed by a General Manager and an Assistant Manager who shall be appointed as
hereinafter provided (emphasis supplied).

Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA the power
"to appoint and fix the term of office of the general manager ... subject to the recommendation of Economic
Coordination and the approval of the President of the Philippines" (emphasis supplied).

By "appointment" is meant the act of designation by the executive officer, board or body, to whom that power
has been delegated, of the individual who is to exercise the functions of a given office (Mechem op. cit., Sec.
102). When the power of appointment is absolute, and the appointee has been determined upon, no further
consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at
once. Where, however, the assent or confirmationof some other officer or body is required, the Commission
can issue or the appointment is complete only when such assent or condition is obtained (People vs. Bissell,
49 Cal. 407). To constitute an "appointment" to office, there must be some open, unequivocal act of
appointment on the part of the appointing authority empowered to make it, and it may be said that an
appointment to office is made and is complete when the last act required of the appointing authority has been
performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment
becomes complete when the last act required of the appointing power is performed (State vs. Barbour, 53
Conn. 76, 55 Am. Rep. 65).

The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 approved
on January 15, 1960) of the Board of Directors. A careful perusal of the resolution points out the fact that the
appointment is by itself incomplete because of the lack of approval of the President of the Philippines to such
appointment. Thus, We note that Resolution No. 13 states:

xxx xxx xxx

... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of
the above appointment of Mr. Aparri (p. 2, rec.).

Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the
then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the
appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer
because he assumed office "under color of a known appointment or election, void because the officer was not
eligible or because there was a want of power in the electing body, or by reasons of some defect or irregularity
in its exercise, such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38
Conn. 449, 9Am. Rep. 409).

However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved
March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the
petitioner up to the close of office hours on March 31, 1962. The questioned resolution corrected whatever
requisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the
respondent Board and pursuant to "the desire of the President" legally fixed the term of office of petitioner as
mandated by paragraph 2, Section 8 of Republic Act 1160.

The word "term" in a legal sense means a fixed and definite period of time which the law describes that an
officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS
OFFICERS, secs. 42, 54[1]). According to Mochem, the term of office is the period during which an office may
be held. Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties
and authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public
Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration
of the term for which he was elected or appointed. The question of when this event has occurred depends
upon a number of considerations, the most prominent of which, perhaps, are whether he was originally elected
or appointed for a definite term or for a term dependent upon some act or event ... (Mechem op. cit., Sec. 384).

It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the
statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865,
65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is
vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and the
approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an
expiration of the term of office of the petitioner. The statute is undeniably clear. It is the rule in statutory
construction that if the words and phrase of a statute are not obscure or ambiguous, its meaning and the
intention of the legislature must be determined from the language employed, and, where there is no ambiguity
in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not
speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep.
744). The reason for the rule is that the legislature must be presumed to know the meaning of words, to have
used words advisedly and to have expressed its intent by the use of such words as are found in the statute (50
Am. Jur. p. 212).

Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50 O.G.
2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to hold
the office ceased by the expiration on March 31, 1962 of his term to hold such office.

WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS.

SO ORDERED.

G.R. No. 191218 May 31, 2011

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his capacity as
President and General Manager of the GSIS, Petitioners,
vs.
ARWIN T. MAYORDOMO, Respondent.

DECISION

MENDOZA, J.:

In this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, the Government
Service Insurance System (GSIS) and its then President and General Manager, Winston F. Garcia (Garcia),
assail and seek to modify the July 31, 2009 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
105414,2 as reiterated in its February 5, 2010 Resolution3 denying the motion for reconsideration thereof for
lack of merit.

The Facts:

Respondent Arwin T. Mayordomo (Mayordomo) was employed as Accounts Management Specialist of the
GSIS Fund Management Accounting Department (FMAD), responsible for the preparation of financial
statements, from October 2, 2000 until his dismissal on August 31, 2007.4

Sometime in September 2004, Ignacio L. Liscano (Liscano), then GSIS Information Technology Officer (ITO) III
called the attention of Joseph Sta. Romana (Sta. Romana), another ITO, about a network conflict in his
personal computer. Sta. Romana conducted a network scan to identify the source of the problem. During the
scan, he discovered that another personal computer within the GSIS computer network was also using the
internet protocol (IP) address5 of Liscanos computer. This other computer was eventually identified as the one
assigned to Mayordomo with username "ATMAYORDOMO."

Sta. Romana immediately restored the correct IP address assigned to Mayordomos personal computer. Until
this restoration, Liscano was deprived of access to the GSIS computer network and prevented from performing
his work as ITO. Mayordomo was verbally reminded that he had no authority to change his IP address and
warned that doing so would result in network problems.6
On February 9, 2005, in the course of another network scan, Sta. Romana again encountered the username
"ATMAYORDOMO." This time, an IP address, belonging to the range of the GSIS Remote Access Server
(RAS),7was simulated and used. Knowing that the RAS would provide an exclusive external trafficking route to
the GSIS computer system and realizing that Mayordomo could have gained access to the entire GSIS
network including its restricted resources, Sta. Romana lost no time in reporting the matter to Rolando O.
Tiu (Tiu), Vice-President of the Resources Administration Office. Before the IT network personnel could take
any action, however, Mayordomo restored his assigned IP address.

The next day, the username "ATMAYORDOMO" appeared again in the scan, this time using two (2) IP
addresses of the RAS (143.44.6.1 and 143.44.6.2). With notice to Tiu, Mayordomos personal computer was
pulled out to have the glitches caused by the unauthorized use of the said IP addresses fixed.

According to GSIS, "[t]he unauthorized changing of IP address gave freedom to respondent to exploit the GSIS
network system and gain access to other restricted network resources, including the internet. It also resulted to
IP address network conflict which caused unnecessary work to and pressure on ITSG personnel who had to fix
the same. Further, as a consequence, Mayordomos simulation of the RAS IP addresses caused disruption
within the GSIS mainframe on-line system affecting both the main and branch offices of the GSIS. His actions
likewise prevented authorized outside users from accessing the GSIS network through the RAS IP addresses
he simulated."8

In his Memorandum9 dated February 11, 2005, Tiu reported Mayordomos acts to Esperanza R. Fallorina and
Maria Corazon G. Magdurulan,10 with emphasis on the danger of changing IP addresses as a "channel for
virus proliferation that could result to loss of critical files for all those infected and render said users
unproductive." Tiu also reported that Mayordomo changed his IP address to gain access to the internet as
shown by downloaded programs in his computer that were not allowed or unnecessary for his work.

In his written explanation11 of the same date, Mayordomo admitted the acts imputed to him and offered no
excuse therefor. He nonetheless explained his side and claimed that the IP address assigned to him could not
access the network due to a conflict with another IP address. Despite several verbal notices to the Information
Technology Services Group (ITSG), he was simply told that the conflict would eventually disappear. The
network conflict, however, persisted and resulted in the disruption of his work constraining him to use another
IP address to use an officemates laser printer which was only accessible thru the Local Area Network (LAN).
In his desperate need to print a set of financial reports which were considered a "rush job," Mayordomo
decided not to request formal assistance in accordance with the proper procedure. He apologized and
promised not to change his IP address again, acknowledging the hazards of such careless use of the system.

On February 21, 2005, Human Resource Office Vice-President J. Fernando U. Campana issued a
memorandum12 strictly enjoining Mayordomo "not to repeat such actuations, and to follow standard office
procedures or exercise prudent judgment and obtain the necessary clearance before engaging in any
extraordinary measure." In the same memorandum, it was noted that Mayordomo did not heed the earlier
warning by the ITSG on the effects brought about by the changing of his IP address to the entire network
system. Further, despite absence of intent to harm the system, his act of changing his IP address to facilitate
the printing of rush accounting reports was "unsanctioned/illegal" because he lacked the authority to access
the network. Thereafter, Mayordomos personal computer was returned to him.

On May 3, 2006, or more than a year later, Mayordomo received a Show-Cause Memorandum from the
Investigation Department in connection with his previous acts of changing his IP address.13 In reply,
Mayordomo admitted that he changed his IP address because the one given to him by the ITSG was in conflict
with some other IP addresses. The ITSG was not able to address this problem, prompting him to change his IP
address to be able to perform his work.

In June 2006, President and General Manager Garcia issued a formal administrative charge14 against
Mayordomo, for Grave Misconduct and/or Conduct Prejudicial to the Best Interest of the Service. In his July 3,
2006 Answer,15 Mayordomo admitted that he changed his IP address but he denied having violated any policy
or guideline on the subject because no policy, regulation or rule pertaining to changing of IP address existed at
the time of its commission. It was only on November 10, 2005 when the GSIS adopted a policy against
unauthorized changing of IP addresses. Hence, he could not be held liable in view of the constitutional
prohibition against ex post facto laws.

On August 6, 2006, Mayordomo submitted his Supplemental Answer with Manifestation,16 attaching affidavits
of his co-workers stating that he indeed reported the problem with his IP address but this was never fixed by
the ITSG. He also averred that he had previously used a username and password of an officemate with the
blessing and explicit approval of the latter. He then waived a formal investigation and agreed to submit the
case for decision on the basis of the evidence on record.

On March 7, 2007, the GSIS rendered its Decision17 finding Mayordomo guilty of Grave Misconduct and
imposing upon him the penalty of dismissal, with forfeiture of benefits, loss of eligibility and disqualification from
government service. In said Decision, the GSIS discussed the significance of an IP address, viz:

"An IP address is an identifier for a computer or device on a TCP/IP network. Networks using the TCP/IP
protocol route messages based on the IP address of the destination. The format of an IP address is a 32-bit
numeric address written as four numbers separated by periods. Each number can be zero to 255. For
example, 1.160.10.240 could be an IP address. Within an isolated network, one can assign IP address at
random as long as each one is unique."

It is clear from the above that no two (2) PCs can have the same IP address. And in the event where two (2)
PCs end up having the same IP address, both PCs would not be able to access the network xxx When the
respondent changed his PCs IP address to that of Mr. Liscanos PC, both the respondent and Mr. Liscano
were not able to access the GSIS network. To the respondents bad luck, the IP address he used was assigned
to the PC of an ITSG personnel, thus, the same was immediately investigated and his actions discovered.

xxx

On the other hand, the "RAS" is a server that is dedicated to handling users who are not on a Local Area
Network (LAN) but need remote access to it." And owing to its function, no restrictions are imposed on the IP
address of the RAS. Thus, in the instances when the respondent simulated the IP address of the RAS, he not
only jeopardized the accessibility of the GSIS network to outside users, he also gained access to the entire
GSIS network and its other resources, including the internet, which would have otherwise been prohibited to
him. Simply put, the respondent breached the barriers that were put in place to protect the network and its
other resources from unauthorized incursions when he simulated the RAS IP address.

x x x.

Mayordomo moved for reconsideration of the decision against him arguing against the unfairness and severity
of his dismissal.18 He argued that his act of changing his IP address was in no way a flagrant disregard of an
established rule, not only because no policy penalizing the act existed at that time he committed it, but
because his reason for doing so even redounded to the benefit of the GSIS. Simply put, absent were the
elements of corruption and the clear intent to violate a law on his part and only the motivation to accomplish his
task reigned upon his judgment.

In its Resolution dated July 18, 2007,19 GSIS denied the motion for lack of merit. It explained that the
nonexistence of a policy prohibiting the unauthorized changing of IP addresses might relieve Mayordomo from
an "administrative offense of violation of reasonable office rules and regulations, his actions and its effects on
the GSIS network system fall within the ambit of grave misconduct xxx [T]he assignment of, alteration or
changing of IP addresses is vested solely on the ITSG. Respondent not being a member of the ITSG clearly
had no authority to alter his IP address, whatever may have been his justification for doing so."
On September 14, 2007, Mayordomo filed an appeal20 with the Civil Service Commission (CSC) which
dismissed it in Resolution 080713,21 for failure to comply with the indispensable requirements under Section 46
of the Uniform Rules on Administrative Cases in the Civil Service.22 On reconsideration, however, the CSC
ruled on the merits of the case and affirmed the findings of the GSIS, thus:

WHEREFORE, the Motion for Reconsideration of Arwin T. Mayordomo, Accounts Management Specialist,
Fund Management Accounting Department, Government Service Insurance System (GSIS), is hereby DENIED
for lack of merit. Accordingly, Civil Service Commission (CSC) Resolution No. 08-0713 dated April 21, 2008
STANDS.23

The CSC rejected Mayordomos defense of good faith in view of the previous verbal warnings he received. By
changing the IP address of his personal computer for the second time, after notice of its hazardous effects to
the system, Mayordomo committed an act that was inherently wrong. According to the CSC:

A perusal of the Motion for Reconsideration shows that Mayordomo did not present new evidence which would
materially affect the subject Resolution. xxx Movant has the repetitive averments that there was no existing
company policy that prohibited GSIS employees from changing their IP addresses, and as such, there was no
clear-cut penalty for the said offense; that by changing his IP address, he was in good faith and meant no harm
to the GSIS; that his acts do not constitute Grave Misconduct.

To these, the Commission emphasizes that in the first place, the act which Mayordomo committed was one
that is inherently wrong. Moreover, the express warning and prohibition given by the GSIS officials when he
was first caught changing his IP address is and constitutes the rule that obviously made the act he committed,
prohibited.

xxx

Further, since the same act/s undoubtedly caused undue prejudice to the government, in the sense that it
exposed the GSIS system to immense risk, movant is correctly found likewise guilty of Conduct Prejudicial to
the Best Interest of the Service. But since this second offense has a lighter penalty, such is subsumed under
the more grievous offense of Grave Misconduct, which is punishable with the supreme administrative penalty
of dismissal.24

Undaunted, Mayordomo elevated the case to the CA by way of a petition for review under Rule 43 of the Rules
of Court. Mayordomo argued that the above CSC Resolutions were issued with grave abuse of discretion
amounting to lack or in excess of jurisdiction. He reiterated his arguments before the GSIS and the CSC, as
follows: that he did not commit so grave an offense to warrant his dismissal from service; that the GSIS
miserably failed to present evidence showing illwill or bad faith on his part; that his act of changing his IP
address was not punishable because no existing company policy was in effect at that time and, in fact, it was
only nine months after his act was complained of, when the GSIS issued a policy/guideline on the matter; that
the Memorandum issued earlier by the Vice-President of the Human Resource Office sufficiently served as his
penalty for his careless acts; and that granting that he should be penalized anew, his length of service and
work performance should be considered for him to merit a lighter penalty than that of dismissal.

On July 31, 2009, the CA partly granted the petition.25 According to the appellate court, while Mayordomo failed
to exercise prudence in resorting to changing his IP address, it could not be said that this act was
characterized by a wrongful use of station or character to procure personal benefit contrary to duty and rights
of others. GSIS failed to prove that Mayordomo acted out of a sinister motive in resorting to such acts or in
order to gain a personal benefit therefrom. The records would only show that Mayordomo did so when he was
faced with the conflict of his own IP address with others and the urgency of his office tasks. In meting out this
penalty for Simple and not Grave Misconduct, the CA took into consideration Mayordomos length of service in
the government and his fairly clean record prior to the incident. The dispositive portion of the CA Decision thus
reads:
WHEREFORE, the petition is PARTLY GRANTED. Resolution No. 080713 and Resolution No. 081524 of the
Civil Service Commission are AFFIRMED with MODIFICATION. Finding petitioner Arwin T. Mayordomo guilty
of simple misconduct this Court hereby imposes upon him the penalty of suspension of one (1) month and one
(1) day.

SO ORDERED.26

On reconsideration, the CA rejected Mayordomos prayer for payment of backwages corresponding to the
period of his preventive suspension. In its Resolution dated February 5, 2010, the CA emphasized that
Mayordomo was not completely exonerated from liability for the act complained of. The offense was merely
downgraded from grave misconduct to simple misconduct. Therefore, Mayordomos dismissal is "deemed a
preventive suspension pending his appeal." Thus, he was not entitled to the payment of backwages and
other benefits during the said period.

Hence, this recourse by the petitioners ascribing serious errors on the part of the CA in modifying the penalty
imposed on Mayordomo:

I.

THE HONORABLE COURT OF APPEALS COMMITTED ERROR IN DOWNGRADING THE OFFENSE


TO SIMPLE MISCONDUCT AS IT FAILED TO CONSIDER THE FACT THAT RESPONDENT ALTERED
HIS ASSIGNED IP ADDRESS NOT ONLY ONCE BUT FOUR (4) TIMES, DESPITE WARNING.

II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT ACCORDING RESPECT AND CREDIT TO
THE FINDINGS OF THE PETITIONERS AND THE CSC, WHICH WERE SUPPORTED BY MORE
THAN THE REQUIRED SUSTANTIAL EVIDENCE.

The petitioners contend that Mayordomo, from the outset, had full knowledge of the nature, purpose, and
importance of an IP address and the dire consequences of changing the same. In committing "computer
identity and capacity theft,"27 Mayordomo is guilty of Grave Misconduct, and even Dishonesty, as shown by
substantial evidence. Hence, the CA erred in giving credence to his assertion that his act of changing his IP
address was not attended by corruption and sinister motive, considering that he freely chose to traverse a
tortuous path of changing his IP address, to simply print a document for his alleged rush work. While the latter
task is simply akin to the goal of "reaching Tibet from Nepal,"28 Mayordomo took the most difficult route, that of
changing his IP address, and worse, into the most powerful IP address in GSIS. For petitioners, Mayordomos
dubious motive is shown by his desire to "get to the top, with all the privileges, advantages and practically
limitless vista of taking that topmost perch."29

For his part, Mayordomo reasons out that during the time when the GSIS FMAD was in the peak of activities,
he was constrained to alter his IP address because of the failure of the ITSG to fix a conflict which effectively
disrupted his work. He claims to have no reason to cause harm to the system and to the GSIS in general,
because in the first place, he was not informed of the hazards of changing IP addresses. It was only by
November 10, 2005, or nine months after the incident, when the GSIS issued a policy/ guideline30 on the
matter.

In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial evidence or
such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. Well-
entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond
reasonable doubt, is sufficient as basis for the imposition of any disciplinary action upon the employee. The
standard of substantial evidence is satisfied where the employer, has reasonable ground to believe that the
employee is responsible for the misconduct and his participation therein renders him unworthy of trust and
confidence demanded by his position.31

In this case, the attending facts and the evidence presented, point to no other conclusion than the
administrative liability of Mayordomo. The Code of Conduct and Ethical Standards for Public Officials and
Employees32enunciates the state policy to promote a high standard of ethics in public service, and enjoins
public officials and employees to discharge their duties with utmost responsibility, integrity and competence.
Section 4 of the Code lays down the norms of conduct which every public official and employee shall observe
in the discharge and execution of their official duties, specifically providing that they shall at all times respect
the rights of others, and refrain from doing acts contrary to law, good morals, good customs, public policy,
public order, and public interest. Thus, any conduct contrary to these standards would qualify as conduct
unbecoming of a government employee.33

Here, Mayordomos act of having repeatedly changed his IP address without authority, despite previous
warnings, shows that he did not exercise prudence in dealing with officework and his officemates. After the first
warning he received from the ITSG, Mayordomo should have realized that his unauthorized act brought
inconvenience, not only to a fellow employee, Liscano, but to the entire GSIS, which was actually deprived of
service from a paid employee. As if he did not understand the repercussions of his act, he again toyed with his
IP address and deliberately ignored the importance of necessary clearance before engaging in any
extraordinary measure. Worse, he chose the RAS and gained access to the entire GSIS network, putting the
system in a vulnerable state of security. When Mayordomo was alerted by the hazardous effects of using an IP
address other than his, he should have realized that, a fortiori, using a RAS IP address would expose the GSIS
system into a more periloussituation.

Indeed, prudence and good sense could have saved Mayordomo from his current tribulation, but he was
unfortunately stubborn to imbibe advice of caution. His claim that he was obliged to change his IP address due
to the inaction of the ITSG in resolving the problem with his own IP address, cannot exonerate him from
responsibility. Obviously, choosing the RAS IP address to replace his own was way too drastic from sensible
conduct expected of a government employee. Surely, there were other available means to improve his
situation of alleged hampered performance of duties for failure to access the system due to IP conflict.
Certainly, gaining access to the exclusive external trafficking route to the GSIS computer system was not one
of them.

The Court neither loses sight of the undisputed fact that Vice-President J. Fernando U. Campanas
Memorandum stated that the ITSG discovered unauthorized and unnecessary downloaded programs in
Mayordomos personal computer when it was pulled out. Hence, despite his insistence that exigency was his
sole reason in altering his IP address, sheer common sense and evidence to the contrary belie this.

Mayordomo likewise fails to convince the Court to adhere to his position that the lack of official policy and
guidelines at the time of commission makes the act of unauthorized alteration of IP addresses exempt from
punishment. While official policy and guidelines apprise covered employees of offenses carrying specific
penalties, the Court may not close its eyes from the fact that actual notice of the dangers of changing his IP
address was made known to Mayordomo, right after the first incident. The CSC was correct in holding that
subsequent to the first warning, Mayordomo was fully aware that changing his IP address without
acquiescence from the ITSG, was inherently wrong.

In the same vein, proof of the alleged damage caused by Mayordomos act to the GSIS system and its use by
the general public, is not necessary. The inaccessibility, unnecessary interruption, and downtime to the GSIS
network as may be experienced by outside users, is obvious. Proof that the public was inconvenienced in
using the GSIS website is not necessary in order to conclude that the unauthorized changing of IP address can
produce pernicious effects to the orderly administration of government services. It is well-settled that in
administrative cases, the injury sought to be remedied is not merely the loss of public money or property. Acts
that go against the established rules of conduct for government personnel, [in this case, that of resorting to
unauthorized and radical solutions, without clearance from appropriate parties] bring harm to the civil service,
whether they result in loss or not.34 This rule is in line with the purpose of administrative proceedings, which is
mainly to protect the public service, based on the time-honored principle that a public office is a public trust.35

Albeit different in degree, both the CSC and the CA agree that Mayordomo is guilty of misconduct in office. A
long line of cases has defined misconduct as "a transgression of some established and definite rule of action,
more particularly, unlawful behavior or gross negligence by the public officer."36 Jurisprudence has likewise
firmly established that the "misconduct is grave if it involves any of the additional elements of corruption, willful
intent to violate the law or to disregard established rules, which must be proved by substantial evidence."37

To warrant dismissal from the service, the misconduct must be grave, serious, important, weighty, momentous,
and not trifling. The misconduct must imply wrongful intention and not a mere error of judgment.38 Corruption
as an element of grave misconduct consists in the act of an official or employee who unlawfully or wrongfully
uses her station or character to procure some benefit for herself or for another, at the expense of the rights of
others. Nonetheless, "a person charged with grave misconduct may be held liable for simple misconduct if the
misconduct does not involve any of the additional elements to qualify the misconduct as grave. Grave
misconduct necessarily includes the lesser offense of simple misconduct."391avvphi1

Based on the foregoing rule, the CA designated Mayordomos offense as Simple Misconduct, on the ground
that the elements particular to Grave Misconduct were not adequately proven by the GSIS on which the burden
of proof lay. There being no clear and convincing evidence to show that Mayordomo changed his IP address
for personal or selfish needs, the CA found that his act could not be said to have been tainted with "corruption."

The Court is inclined to disagree with the CA not only in downgrading the offense from Grave Misconduct to
Simple Misconduct, but on the nature of the offense charged itself. The Court indeed finds Mayordomo
administratively liable, but modifies the designation of the offense and the penalty imposed by the CA.

The Court has come to a determination that the administrative offense committed by the respondent is not
"misconduct." To constitute misconduct, the act or acts must have a direct relation to and be connected with
the performance of official duties.40 The duties of Mayordomo as a member of the GSIS FMAD surely do not
involve the modification of IP addresses. The act was considered unauthorized, precisely because dealing with
the GSIS networks IP addresses is strictly reserved for ITSG personnel who are expectedly knowledgeable in
this field. In Manuel v. Calimag, Jr.,41 the Court emphatically ruled:

In order to be considered as "misconduct," the act must have a "direct relation to and be connected with
the performance of his official duties amounting either to maladministration or willful, intentional
neglect or failure to discharge the duties of the office. Misconduct in office has been authoritatively defined
by Justice Tuazon in Lacson v. Lopez in these words: "Misconduct in office has a definite and well-understood
legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as
an officer and not such only as affects his character as a private individual. In such cases, it has been said at
all times, it is necessary to separate the character of the man from the character of the officer x x x x It is
settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer must have
direct relation to and be connected with the performance of official duties amounting either to maladministration
or willful, intentional neglect and failure to discharge the duties of the office x x x More specifically,
in Buenaventura v. Benedicto, an administrative proceeding against a judge of the court of first instance, the
present Chief Justice defines misconduct as referring to a transgression of some established and definite rule
of action, more particularly, unlawful behavior or gross negligence by the public officer." [Emphasis ours,
citations excluded]

In Cabalitan v. Department of Agrarian Reform,42 the Court sustained the ruling of the CSC that the offense
committed by the employee in selling fake Unified Vehicular Volume Program exemption cards to his
officemates during office hours was not grave misconduct, but conduct prejudicial to the best interest of the
service. In Mariano v. Roxas,43 the Court held that the offense committed by a CA employee in forging some
receipts to avoid her private contractual obligations, was not misconduct but conduct prejudicial to the best
interest of the service because her acts had no direct relation to or connection with the performance of her
official duties.

Accordingly, the complained acts of respondent Mayordomo constitute the administrative offense of Conduct
Prejudicial to the Best Interest of the Service, which need not be related to or connected with the public
officers official functions. As long as the questioned conduct tarnishes the image and integrity of his/her public
office, the corresponding penalty may be meted on the erring public officer or employee.44 Under the Civil
Service law and rules, there is no concrete description of what specific acts constitute the grave offense of
Conduct Prejudicial to the Best Interest of the Service. Jurisprudence, however, is instructive on this point. The
Court has considered the following acts or omissions, inter alia, as Conduct Prejudicial to the Best Interest of
the Service: misappropriation of public funds, abandonment of office, failure to report back to work without prior
notice, failure to safe keep public records and property, making false entries in public documents and
falsification of court orders.45 The Court also considered the following acts as conduct prejudicial to the best
interest of the service, to wit: a Judges act of brandishing a gun and threatening the complainants during a
traffic altercation; a court interpreters participation in the execution of a document conveying complainants
property which resulted in a quarrel in the latters family.46

Conduct Prejudicial to the Best Interest of the Service is classified as a grave offense under Section 22(t) of
the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws,
with a corresponding penalty of suspension for six (6) months and one (1) day to one (1) year for the first
offense, and the penalty of dismissal for the second offense.

As this is Mayordomos first case, he should be meted the penalty of six (6) months and one (1) day.

As a final word, the Court makes clear that when an officer or employee is disciplined, the object sought is not
the punishment of that officer or employee, but the improvement of the public service and the preservation of
the publics faith and confidence in the government.47 The respondent is reminded that "the Constitution
stresses that a public office is a public trust and public officers must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead
modest lives. These constitutionally-enshrined principles, oft-repeated in our case law, are not mere rhetorical
flourishes or idealistic sentiments. They should be taken as working standards by all in the public service."48

WHEREFORE, the July 31, 2009 Decision of the Court of Appeals in CA-G.R. SP No. 105414 affirming with
modification Resolution No. 080713 and Resolution No. 081524 of the Civil Service Commission, finding the
respondent guilty of simple misconduct is REVERSED and SET ASIDE. Respondent Arwin T. Mayordomo is
declared GUILTY of Conduct Prejudicial to the Best Interest of the Service and is suspended from service for
six (6) months and one (1) day.

SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

G.R. No. 80270 February 27, 1990

CITY MAYOR OF ZAMBOANGA, petitioner,


vs.
COURT OF APPEALS AND EUSTAQUIO C. ARGANA, respondents.
GANCAYCO, J.:

Public office is a public trust. All government officials and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency act with patriotism and justice,
and lead modest lives. 1 This constitutional mandate should always be in the minds of all public servants to
guide them in their actions during their entire tenure in the government service.

Upon appointment to a public office, an officer or employee is required to take his oath of office whereby he
solemnly swears to support and defend the Constitution, bear true faith and allegiance to the same; obey the
laws, legal orders and decrees promulgated by the duly constituted authorities; and faithfully discharge to the
best of his ability the duties of the position he will hold.

Yet, time and again, We hear of public servants acting in utter defiance of the principles enshrined in the
Constitution and in complete disregard of what they swore in the name of God before assuming their posts in
the public service. Consequently, the people's trust and faith in the government has slowly eroded. There in
very little respect and confidence left.

This in turn has resulted in a widespread feeling of disappointment and dissatisfaction in the government
machinery. Gone are the days when one of the shining ambitions of a college graduate was to have a career in
the civil service; when working in the government meant self-fulfillment. Now, young and talented graduates
shy away from the public service which is unfortunately perceived to be unattractive and totally lacking in
luster. It is only when those in the government sector serve with the highest degree of responsibility, integrity,
loyalty and efficiency and act in accordance with the tenets of the Constitution can such lost respect and
confidence be regained. This case is typical of what a public servant should not be.

The Chief Veterinarian of Zamboanga City, a civil servant, is the private respondent herein. Three female
employees of the Office of the City Veterinarian of Zamboanga City headed by private respondent, filed an
administrative complaint against him for Dishonesty, Oppression and Disgraceful and Immoral Conduct for the
following acts he allegedly committed

Against Mrs. Pilar N. de los Santos

for inviting and/or insisting, on several occasions, that she go with


respondent to the Zamboanga Plaza Hotel, Zamboanga City, and
by deliberately suggesting that her husband should not have any
knowledge of his proposals and suggesting further that she should
not report for work any more but for her to wait in the premises of
the Macatangay Drug Store, Zamboanga City, so that both of them
can later proceed to the Zamboanga Plaza Hotel; for contriving
and/or manuevering to assign her husband, Expedito de los
Santos, to remote districts in the East Coast of the City in order
that he (Argana) can conveniently pursue his amorous intentions
and solicitations towards her; and for persisting to bother her and
trying to convince her to establish an illicit relation with him,
promising that her husband will never know about it anyway.

Against Mrs. Ma. Carmen G. (Alpichi)

For his persistent act of inviting her on several occasions to go


with him to discreet eateries, and on one occasion, to dine and
drink with him at the Happy Landing Restaurant at the
Zamboanga City Airport during office hours in order to persuade
her to accept his amorous advances and even offered her money
as capital for a sari-sari store; and in taking her to dine and drink
with him in a certain store owned by Olegario Barrios at Ayala,
Zamboanga City, during office hours, which lasted until 6:00
o'clock in the evening and made several amorous passes at her.

Against Mrs. Rosa Sonia Guevarra

For inviting her to accompany him in his jeep to go out on official


missions but instead taking her to a canteen inside the Edwin
Andrews Air Base, Zamboanga City, to be with him privately and
then subsequently inviting her to go and play bowling with him and
to have a date with him at the Sultana Hotel the next day; and for
offering her the amount of P50.00 to convince her to submit to his
amorous intentions. 2

On November 31, 1983, in due course, the then Mayor of Zamboanga City, Hon. Cesar Climaco, rendered a
Decision, finding private respondent guilty of Disgraceful and Immoral Conduct and penalizing him with "forced
resignation from service with prejudice to reinstatement." Private respondent appealed to the Civil Service
Regional Director who referred the case to the Merit Systems Board of the Civil Service Commission. The
latter found private respondent guilty only of Improper Conduct with a penalty of "reprimand and warning."

On appeal to the Civil Service Commission, the Decision of the Merit Systems Board dated January 4, 1985
was set aside and the Decision of Mayor Climaco finding private respondent guilty of Disgraceful and Immoral
Conduct was sustained. The penalty of "considered resigned from service with prejudice to reinstatement" was
reimposed on private respondent.

Again, private respondent filed an appeal this time with the Court of Appeals. On August 10, 1987, the Court
of Appeals rendered its Decision, setting aside the Decision of the Civil Service Commission and reinstating
that of the Merit Systems Board modifying the penalty thereof to "six-months suspension without pay with a
stern warning that repetition of the same or similar offense will be dealt with more severely." The Court of
Appeals further ordered the reinstatement of private respondent with full backwages after having served the
penalty.

Not satisfied with the above-mentioned Decision of the Court of Appeals, the City Mayor of Zamboanga filed
this petition for review praying that the said Decision be set aside and that the Decision of the Civil Service
Commission penalizing respondent with forced resignation, be reinstated.

The first assigned error is that the Court of Appeals erred in directing the payment of private respondent's
backwages to which the Solicitor General agrees. A review of the records of this case and the applicable laws
and jurisprudence reveal that the order of payment of back salaries to private respondent is not valid.

Section 78 of the B.P. Blg. 337, otherwise known as the Local Government Code, provides for the conditions
under which a public servant who was suspended or dismissed by reason of an administrative charge, may be
entitled to full backwages, thus:

Sec. 78. Disciplinary Jurisdiction. (1) Except as otherwise provided by law, the head of a local
government unit shall have authority to remove, separate, suspend and otherwise discipline
officials and employees under his jurisdiction. If the penalty imposed is suspension without pay
for not more than thirty days, his decision shall be final. If the penalty imposed is heavier, the
decision shall be appealable to the Civil Service Commission which has final authority upon all
matters relating to the conduct, discipline and efficiency of local government officials and
employees. If the respondent is in the career executive service, appeal shall be made to the
Career Service Board.
(2) An appeal shall not prevent a decision from becoming executory, and in case
the penalty is suspension or removal, the respondent shall be considered as
having been under preventive suspension during the pendency of an appeal in
the event he wins such appeal. However, the respondent shall be paid his salary
corresponding to the period during which the appeal is pending in the event he is
completely exonerated. (Emphasis supplied.)

Under the above-quoted provision, it is required that private respondent must be exonerated of the charges in
order that he may be paid his back salaries. In the case at bar, it is quite apparent from the facts that private
respondent was not cleared of the charges. The Court of Appeals affirmed the decision of the Merit and
Systems Board which on the other hand found private respondent guilty of "Improper Conduct." It is because of
this finding of guilt that the Court of Appeals imposed a penalty of six-months suspension on private
respondent. Also, the stern warning handed down by the Court of Appeals on private respondent that a
"repetition of the same or similar offense will be dealt with more severely" only shows that the said Court did
not exonerate him of the offense.

In a long line of cases, 3 this Court reiterated the principle that back salaries may be ordered paid to an officer
or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and
declared to be illegal. In Sales vs. Mathay, Sr., 4 this Court held that a postal clerk suspended for six months for
gross neglect of duty is not entitled to back salary if he cannot show that his suspension was unjustified or that
he is innocent of the charge.

Thus, the order of payment of full backwages in this case is without lawful basis. Indeed, to allow private
respondent to receive full back salaries would amount to rewarding him for his misdeeds and compensating
him for services that were never rendered.

As to the specific offense/s committed and the proper penalty to be imposed, the Court finds that private
respondent is guilty of "Disgraceful and Immoral Conduct" as well as "Grave Misconduct" and must be meted
the penalty of dismissal.

Under Memorandum Circular No. 30, series of 1989 issued by the Civil Service Commission, "Disgraceful and
Immoral Conduct" and "Grave Misconduct" are classified as grave offenses punishable by dismissal. The acts
of private respondent constituting the aforementioned administrative offenses were duly established as shown
in the following testimonies of his three female subordinates:

From Mrs. Pilar de los Santos

That in connection with the respondent's invitation to her to dine


with him at the Zamboanga Plaza Hotel, when she suggested to
him that she bring her husband along with her, respondent refused
saying that he will not enjoy while her husband is around (TSN, p.
12); that suspicious of the respondent's motive, she turned down
the invitation (TSN, p. 14)-l that the incident prompted her to
tender her letter of resignation from the office; that she told the
incident to Mr. Vicente Lacandalo, another employee in the Office
of the City Veterinarian; that Mr. Lacandalo talked to respondent
regarding the matter, then respondent came out later of his room
and he was very mad at her; that she did not let her husband
know about the incident knowing that he has a bad temper; that
because of her repeated refusal to accept respondent harassed
her by refusing to sign her clearance for transfer to the
Sangguniang Pampook; and that the respondent forced her to
sign a promissory note in connection with the lost typewriter as a
condition to approving her transfer to the Sangguniang Pampook
(TSN, pp. 17-26).

From Mrs. Ma. Carmen G. Alpichi

That she was a Livestock Inspector in the Office of the City


Veterinarian; that when the respondent learned that her husband
was about to leave for Manila to attend a 45-day seminar, he
(respondent) assigned her at the airport as Quarantine Officer and
while there, he frequented visiting her and everytime he visits her,
he invites her to a snack or lunch; that respondent keeps on
asking her when her husband will arrive (TSN, p. 45); that she
noticed respondent's amorous intentions towards her from 1979
(TSN, p. 45); that when she informed her husband about it, he
advised her to be more careful; that she can remember that
Argana invited her three (3) times to dine with him, and she went
with him to the Sandwich Restaurant in Atilano for about three (3)
hours at about 8:30 in the morning, during office hours, on the first
occasion; and for about 30 minutes on the second occasion; while
it lasted from 10:00 o'clock in the morning to 12:00 o'clock noon
on the third occasion (TSN, pp. 49 & 50); that when she asked the
respondent to recommend the renewal of her appointment he
asked her what gift she is willing to give him and that in answer
thereto she said that she will do her job very well and show that
she is interested in her work, but to which respondent replied that
'it is not a gift;' that, therefore, she asked him what gift he really
wanted and to which he replied 'the gift which (1) she will give him
with all (my) her heart that as a woman, she felt that by that
statement, respondent wanted her to give herself to him (TSN, p.
57); and that one time in the store of Olegario Barrios in Ayala,
Zamboanga City, while respondent and a certain Mr. Policarpio
were drinking beer, respondent talked to her about sex to the
effect that if a man will convince (me) her to make sex, 'ansina
daw ese sir, si quiere daw eyo man sex con el hente maskin
casao, ya daw ansina' (that if a man will convince her to make
sex, a man, though married, may have sex with another woman.
(TSN, p. 61).

From Mrs, Rosa Sonia M. Guevarra

That she was a Meat and Livestock Inspector in the Office of the
City Veterinarian, Zamboanga City; that she refused respondent's
invitation to her to go with him on bowling; that on September, 23,
1980 when she went with respondent in his jeep he held her left
hand very tightly before she could alight from the said jeep and
then he offered her P50.00; that when she told her father-in-law
about the incident on the same day he was very mad; that when
she arrived at the office in the afternoon of the same day she
related the incident to Mr. Honorato Loon, a co-employee; that
when she approached the respondent later for him to sign her
application for sick leave he asked her what gift (you) she can give
to (me) him if (I) he will sign her leave,' to which she answered she
can give (you) him a bottle of wine ... and cigarettes,' but
respondent replied '(1) he can buy those things' because 'what he
really wanted is sexual intercourse (TSN, p. 110). 5

In determining what penalty must be imposed on private respondent, the Court took into consideration the fact
that there is here not only one but three complainants, all married at that. It projects the abnormality of private
respondent's behavior consisting of a libidinous desire for women and the propensity to sexually harass
members of the oppsite sex working with him.

The manner in which he communicated his desire for the complaining ladies proposing to meet them at
hotels, tempting them with money to submit to his advances and even coaching them to avoid being caught by
their husbands, depicts the private respondent's moral depravity.

What aggravates the situation is the undeniable circumstance that private respondent took advantage of his
position as the superior of the three ladies involved herein.

Being the chief of office, it was incumbent upon private respondent to set an example to the others as to how
they should conduct themselves in public office, to see to it that his subordinates work efficiently in accordance
with Civil Service Rules and Regulations, and to provide them with a healthy working atmosphere wherein co-
workers treat each other with respect, courtesy and cooperation, so that in the end the public interest will be
benefited.

On the contrary, private respondent, who was supposed to be the head of their office, goaded his female
subordinates to dine and drink with him during office hours; asked for "gifts" in exchange for his official
signature or favor; utilized his rank to get back at those who refused his advances and those who sympathized
with the latter; and even instructed one of them not to report for work but to instead meet with him so that he
could bring her to a hotel. Such acts of private respondent cannot be condoned. He should not be let loose to
pursue his lewd advances towards lady employees in said office.

Indeed, to reinstate private respondent to his former position with full backwages would make a mockery of the
fundamental rule that a public office is a public trust and would render futile the constitutional dictates on the
promotion of morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the government
service. 6 Likewise, reinstatement would place private respondent in such a position where the persons whom
he is supposed to lead have already lost their respect for him and where his tarnished reputation would
continue to hound him.

For the sake of his former subordinates, and for his own sake, and bearing in mind that a public office must be
held by a person who is both mentally and morally fit, the Court finds private respondent guilty of "Disgraceful
and Immoral Conduct" and "Grave Misconduct" in office and he is hereby imposed the penalty of dismissal
pursuant to the provisions of Civil Service Commission Memorandum Circular No. 30, series of 1989.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. SP No. 06835 is REVERSED. The Decision of
the Civil Service Commission in CSC Case No. 2322 dated July 10, 1985 is hereby reinstated, with the
modification that the penalty to be imposed on private respondent should be that of dismissal. The Court
makes no pronouncement as to costs.

SO ORDERED.

G.R. No. 88831 November 8, 1990

MATEO CAASI, petitioner,


vs.
THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents.
G.R. No. 84508 November 13, 1990

ANECITO CASCANTE petitioner,


vs.
THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents.

Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.

Montemayor & Montemayor Law Office for private respondent.

GRIO-AQUINO, J.:

These two cases were consolidated because they have the same objective; the disqualification under Section
68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor
of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that
he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao.

G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC
First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay
(SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed
prior to the local elections on January 18, 1988.

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21,
1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo
Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito
Miguel on account of his being a green card holder.

In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration
Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green
card for convenience in order that he may freely enter the United States for his periodic medical examination
and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted
in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution,
and the congressional elections on May 18,1987.

After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto
Badoy, Jr., dismissed the petitions on the ground that:

The possession of a green card by the respondent (Miguel) does not sufficiently establish that
he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green
card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as
shown by his having voted in successive elections in said municipality. As the respondent meets
the basic requirements of citizenship and residence for candidates to elective local officials (sic)
as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his
candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).

In his dissenting opinion, Commissioner Badoy, Jr. opined that:

A green card holder being a permanent resident of or an immigrant of a foreign country and
respondent having admitted that he is a green card holder, it is incumbent upon him, under
Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a
permanent resident or immigrant" to be qualified to run for elected office. This respondent has
not done. (p. 13, Rollo, G.R. No. 84508.)

In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the
petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No.
14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of
the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi.
The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo
warranto case. The Court of Appeals held:

... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the
petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets
the very basic requirements of citizenship and residence for candidates to elective local officials
(sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that
decisions of the Regional Trial Courts on quo warranto cases under the Election Code are
appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.)

These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a
permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a
permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.

Section 18, Article XI of the 1987 Constitution provides:

Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all
times, and any public officer or employee who seeks to change his citizenship or acquire the
status of an immigrant of another country during his tenure shall be dealt with by law.

In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
provides:

SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a
foreign country shall not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971,
EC).

In view of current rumor that a good number of elective and appointive public officials in the present
administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on
the holders' right to hold elective public office in the Philippines is a question that excites much interest in the
outcome of this case.

In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien
Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and
submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to
Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer
was, "Permanently."

On its face, the green card that was subsequently issued by the United States Department of Justice and
Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a
RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed:

Alien Registration Receipt Card.


Person identified by this card is entitled to reside permanently and work in the
United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.)

Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment
of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his
children or his doctor there; he entered the limited States with the intention to have there permanently as
evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of
his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently.

Immigration is the removing into one place from another; the act of immigrating the entering into
a country with the intention of residing in it.

An immigrant is a person who removes into a country for the purpose of permanent
residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term
"immigrant." (3 CJS 674.)

As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he
resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein.

Aliens reading in the limited States, while they are permitted to remain, are in general entitled to
the protection of the laws with regard to their rights of person and property and to their civil and
criminal responsibility.

In general, aliens residing in the United States, while they are permitted to remain are entitled to
the safeguards of the constitution with regard to their rights of person and property and to their
civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the
provision of the Fourteenth Amendment to the federal constitution that no state shall deprive
"any person" of life liberty, or property without due process of law, or deny to any person the
equal protection of the law, and the protection of this amendment extends to the right to earn a
livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of
the provision of the Fifth Amendment to the federal constitution that no person shall be deprived
of life, liberty, or property without due process of law. (3 CJS 529-530.)

Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to
change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt
with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United
States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.

The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides:

xxx xxx xxx

Any person who is a permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless such person has waived his status
as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.'

Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor
of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the
United States?
To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green
card holder must have "waived his status as a permanent resident or immigrant of a foreign country."
Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself
constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his
green card should be manifested by some act or acts independent of and done prior to filing his candidacy for
elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec.
68, Omnibus Election Code).

Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or
immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his
status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore,
hold that he was disqualified to become a candidate for that office.

The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality
where he intends to run for elective office for at least one (1) year at the time of filing his certificate of
candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap.
1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent
resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year)
after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on
January 18, 1988.

In banning from elective public office Philippine citizens who are permanent residents or immigrants of a
foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold
elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved
that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of
evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire
devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must
keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their
status as permanent residents thereof.

Miguel insists that even though he applied for immigration and permanent residence in the United States, he
never really intended to live there permanently, for all that he wanted was a green card to enable him to come
and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration
to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other
foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by
permitting him to benefit from it, and giving him the best of both worlds so to speak.

Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green
card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his
occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his
application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he
surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local
elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his
election thereto was null and void.

WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595
and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito
C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent.

SO ORDERED.

G.R. No. 197307 February 26, 2014


FLOR GUPILAN-AGUILAR and HONORE R. HERNANDEZ, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, represented by HON. SIMEON V. MARCELO; and PNP-CIDG,
represented by DIR. EDUARDO MATILLANO, Respondents.

DECISION

VELASCO, JR., J.:

The Case

This Petition for Review on Certiorari under Rule 45 seeks to reverse and set aside the July 22, 20091 Decision
of the Court of Appeals and its June 13, 2011 Resolution in CA-G.R. SP No.88954, affirming the decision of the
Ombudsman in OMB-C-A-03-0327-I that found petitioners guilty of grave misconduct and dishonesty and
dismissed them from the service.

The Facts

In June 2003, the Philippine National Police Criminal Investigation and Detection Group (PNP-CIDG)
conducted an investigation on the lavish lifestyle and alleged nefarious activities of certain personnel of the
Bureau of Customs, among them petitioners Flor Gupilan-Aguilar (Aguilar), then Chief of the Miscellaneous
Division, and Honore Hernandez (Hernandez), Customs Officer III. Aguilar was then receiving a basic annual
salary of PhP 249,876. Her year-to-year assets, liabilities and net worth for CY s 1999 to 2002, taken from her
Statement of Assets, Liabilities and Net Worth (SALNs) for the corresponding years, are shown below:

Her SALNs for the years aforementioned do not reflect any income source other than her employment. The
spaces for her spouses name and business interest were left in blank.

Following weeks of surveillance and lifestyle probe, the PNP-CIDG investigating team, headed by Atty. Virgilio
Pablico, executed on July 28, 2003 a Joint-Affidavit, depicting Aguilar, who, in her Personal Data Sheet,
indicated "Blk 21 Lot 8 Percentage St. BIR Vill, Fairview, QC" as her home address, as owning properties not
declared or properly identified in her SALNs, specifically the following:

Real Properties

1. Lot 6, Blk 21, BIR Village, Fairview, Quezon City worth approximately Php1,000,000.00;

2. A 4-bedroom Unit 1007-A Antel Seaview Towers, 2626 Roxas Blvd., Pasay City worth
Php12,000,000.00, with rights to 4 parking slots; and

3. Residential lot in Naga City worth Php148,200.00

It was also unearthed that, during a four-year stretch, from July 1999 to June 2003, Aguilar, per the Bureau of
Immigration (BI) records, took 13 unofficial trips abroad, eight to Los Angeles, California, accompanied most of
the time by daughter Josephine. During the same period, her two other daughters also collectively made nine
travels abroad. Per the PNP-CIDGs estimate, Aguilar would have spent around PhP 3,400,000 for her and her
daughters foreign travels.

In view of what it deemed to be a wide variance between Aguilars acquired assets and what she spent for her
four-year overseas travels, on one hand, and her income, on the other, the PNP-CIDG, through P/Director
Eduardo Matillanoin a letter-complaint of July 28, 2003, with enclosures, on a finding that she has violated
Republic Act No. (RA) 13799 in relation to RA 301910 and 671311charged her with grave misconduct and
dishonesty. Hernandez was charged too with the same offenses. Upon evaluation of the complaint and of the
evidence presented, which included the aforementioned joint-affidavit, the Ombudsman created an
investigating panel which then conducted administrative proceedings on the complaint, docketed as OMB-C-A-
03-0327-I.

By Order of September 3, 2003, then Overall Deputy Ombudsman Margarito Gervacio, Jr. placed Aguilar under
preventive suspension for six (6) months without pay. Another Order,12 however, was issued, effectively lifting
the order of preventive suspension on the stated ground that Aguilars untraversed controverting evidence
"considerably demonstrated the weakness of the evidence in support of the complaint."

In the meantime, Aguilar filed her Counter-Affidavit,13 primarily addressing the allegations in the
aforementioned joint-affidavit. In it, she belied allegations about not declaring Lot 6, Blk 21, BIR Village,
Fairview. As explained, what she considers her dwelling in that area consists of a duplex-type structure that sits
on the Lot 8 she originally owned and the contiguous Lot 6, which she subsequently acquired from one Norma
Jurado.

Anent Unit 1007-A of Antel Seaview Towers, Aguilar pointed to her US-based brother Carlo as owner of this
condo unit, the latter having purchased it from Mina Gabor on July 14, 2003. Carlo, as she averred, has
allowed her to stay in the unit. Appended to Aguilars counter-affidavit is a Deed of Sale14 purportedly executed
in Los Angeles in favor of Carlo.

Aguilar also denied owning the so-called third real property, the Panicuason, Naga City lot, since she had
already sold it in 1992.

As to allegations that she owns but failed to declare the four above-listed vehicles, Aguilar admitted to owning
only the subject Honda CRV van, but denied the charge of failing to declare it in her SALN. She ascribed
ownership of the Isuzu Trooper to Hernandez. As for the red and silver BMW cars registered in the name of the
entities mentioned in the complaint, Aguilar alleged that they were merely lent to her by her brothers friend.

Not being the owner of the properties aforementioned, Aguilar wondered how she can be expected to include
them in her SALN.

Finally, she claimed having seven brothers and two sisters in the US who had sponsored her US trips and who
at times even sent airline tickets for her and her daughters use.

Hernandez, for his defense, alleged that the complaint adverted only to his being the registered owner of an
Isuzu Trooper. There is no specification, he added, as to his acquisition of, and not declaring, unexplained
wealth.15

Ruling of the Ombudsman

Based on the evidence on record and the parties position papers, the investigating panel issued for approval a
draft Decision16 dated June 3, 2004, which found Aguilar guilty of the offenses charged. And while Hernandez
was also charged and investigated, the fallo and even the body of the proposed decision was silent as to him,
save for the following line:

x x x the fact that the motor vehicle, Isuzu Trooper with Plate No. HRH 659 is registered in his [Hernandezs]
name, does not make him administratively liable.17

Evidently not totally satisfied with the panels recommended action, the Ombudsman directed that a joint
clarificatory hearing be conducted, and one was held on September 23, 2004. The proceedings resulted in the
issuance of what the investigating panel styled as Supplemental Decision18 dated January 6, 2005 further
detailing the bases for the earlier finding on

Aguilars liability. Like the earlier draft, no reference was made in the fallo of the Supplemental Decision to
Hernandezs guilt or innocence.
Following a review of the two issuances thus submitted, then Ombudsman Simeon Marcelo issued on January
18, 2005 a decision denominated Supplement,19 approving, with modification, the adverted Decision and
Supplemental Decision. The modification relates to the liability of Hernandez whom the Ombudsman found to
be Aguilars dummy and equally guilty of grave misconduct and dishonesty deserving too of the penalty of
dismissal from the service. Dispositively, the Supplement reads:

WHEREFORE, the Decision dated 03 June 2004 and Supplemental Decision dated 06 January 2005 are
approved insofar as it finds respondent Flor Aguilar guilty of the administrative offenses of Grave Misconduct
and Dishonesty and is hereby meted the penalty of DISMISSAL from the service, with the accessory penalty of
cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification for re-employment in the
government service.

Further, the undersigned hereby disapproves the ruling contained in the Decision dated 03 June 2004 with
regard to Honore Hernandez, the latter being likewise found guilty of the administrative offenses of Grave
Misconduct and Dishonesty and is hereby meted the penalty of Dismissal from the service, with the accessory
penalty of cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification for re-
employment in the government service.

SO ORDERED.

Aguilar and Hernandez moved for but were denied reconsideration20 via an Order21 of February 28, 2005. The
two then went to the Court of Appeals (CA) on a petition for review under Rule 43, docketed as CA-G.R. SP
No. 88954. Even as they decried what they tag as a case disposition in installments, petitioners asserted the
absence of substantial evidence to support the allegations in the complaint, and that the judgment of dismissal
is recommendatory and not immediately executory.

Ruling of the Court of Appeals

The CA, in its assailed Decision of July 22, 2009, affirmed that of the Ombudsman, disposing as follows:

WHEREFORE, the instant petition is DENIED and the assailed Decision of the Ombudsman finding petitioners
guilty of Grave Misconduct and Dishonesty, and meted them the penalty of DISMISSAL from the government
service, with the accessory penalty of cancellation of elibility, forfeiture of retirement benefits and perpetual
disqualification for reemployment in the government service in OMB-C-A-03-0327-I is AFFIRMED.

SO ORDERED.22

Even as it junked petitioners contention on the sufficiency of the complainants inculpating evidence and on the
nature of the Ombudsmans judgment, the CA declared that petitioners remedy under the premises is an
appeal to this Court by force of Section 14 in relation to Sec. 27 of RA 6770 or the Ombudsman Act of 1989.
Sec. 14 provides that "[n]o court shall hear any appeal or application for remedy against the decisions or
findings of the Ombudsman, except the Supreme Court on pure questions of law," while Sec. 27 states that
"[f]indings of fact by the [OMB] when supported by substantial evidence are conclusive."

On June 13, 2011, the CA denied petitioners motion for reconsideration.

Hence, the present petition raising the following issues:

1. Whether or not a Rule 43 petition to assail the findings or decisions of the Ombudsman in an
administrative case is proper;

2. Whether or not the acts complained of constitute grave misconduct, dishonesty or both;

3. Whether or not there is substantial evidence to support the assailed findings of the Ombudsman and
the CA; and
4. Whether or not the decision of the Ombudsman is but recommendatory or immediately executory.

Petitioners also invite attention to the June 4, 2012 decision of the Regional Trial Court (RTC) of Manila in
Criminal Case No. 08-263022, acquitting Aguilar for falsification allegedly involving the same disputed
transactions in OMB-C-A-03-0327-I.

The Courts Ruling

The petition, on its procedural and substantial aspects, is partly meritorious. The Court shall first address
procedural issues and concerns raised in this recourse.

Petitioners properly appealed to the CA

Petitioners first contend that the CA erred in its holding that, in line with Sec. 1423 and Sec. 27 of RA 6770, they
should have appealed the Ombudsmans Decision to this Court on questions of law instead of filing a Rule 43
petition before the CA.

Petitioners stand on solid ground on this issue.

The Ombudsman has defined prosecutorial powers and possesses adjudicative competence over
administrative disciplinary cases filed against public officers. What presently concerns the Court relates to the
grievance mechanism available to challenge the OMBs decisions in the exercise of that disciplinary
jurisdiction.

The nature of the case before the Office of the Ombudsman (OMB) determines the proper remedy available to
the aggrieved party and with which court it should be filed. In administrative disciplinary cases, an appeal from
the OMBs decision should be taken to the CA under Rule 43, unless the decision is not appealable owing to
the penalty imposed.

In the case at bar, the Ombudsman, in the exercise of his administrative disciplinary jurisdiction had, after due
investigation, adjudged petitioners guilty of grave misconduct and dishonesty and meted the corresponding
penalty. Recourse to the CA via a Rule 43 petition is the proper mode of appeal. Rule 43 governs appeals to
the CA from decisions or final orders of quasi-judicial agencies.24

Reliance by the CA on Sec. 14 in relation to Sec. 27 of RA 6770 to support its position as to which court a party
may repair to assail the OMBs decision in disciplinary cases is misinformed. As has been held, those portions
of said Sec. 27 and any other provisions implementing RA 6770, insofar as they expanded the appellate
jurisdiction of this Court without its concurrence, violate Article VI, Sec. 30 of the 1987 Constitution.25 We said
so in the landmark Fabian v. Desierto:26

WHEREFORE, Section 27 of [RA] 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of [A.O.].
07 (Rules of Procedure of the [OMB]), and any other provision of law or issuance implementing the aforesaid
Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the
Ombudsman to the Supreme Court, are hereby declared INVALID and of no further force and effect.
(Emphasis added.)

As a consequence and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in
the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Ombudsman in administrative
disciplinary cases should be taken to the CA under the provisions of Rule 43.27 Barata v. Abalos, Jr.,28 Coronel
v. Desierto,29 and recently Dimagiba v. Espartero30 have reiterated the pertinent holding in Fabian.

The Decision of the Ombudsman is


mandatory and immediately executory
This brings us to the issue on the nature of the Ombudsmans decisions in administrative disciplinary suits, it
being petitioners posture that such decisions, as here, are only recommendatory and, at any event, not
immediately executory for the reason that the PNP-CIDG filed the basic complaint on August 20, 200331 when
the ruling in Tapiador v. Office of the Ombudsman32 had still controlling sway. To petitioners, Tapiador
enunciated the dictum that the Ombudsmans disciplinary power is only to recommend, the power to suspend
and dismiss erring personnel being vested in the head of the office concerned. As a corollary point, petitioners
also advance the argument that the legal situation changed only when Office of the Ombudsman v. Court of
Appeals33 and Ombudsman v. Samaniego34 were decided in June 2006 and September 2008, respectively.

We are not impressed.

Petitioners witting or unwitting invocation of Tapiador is specious. Administrative disciplinary authority of the
OMB does not end with a recommendation to punish. The statement in Tapiador that the Ombudsman is
without authority to directly dismiss an erring public official as its mandate is only to recommend was mere
obiter dictum, and cannot, in the words of Ledesma v. Court of Appeals,35 "be cited as a doctrinal declaration of
the Supreme Court." In fact, the pronouncement in Tapiador on the Ombudsmans disciplinary authority was
only limited to two sentences, to wit:

x x x Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no
authority to directly dismiss the petitioner from the government service x x x. Under Section 13, subparagraph
(3), of Article XI of the 1987 Constitution, the Ombudsman can only "recommend" the removal of the public
official or employee found to be at fault, to the public official concerned.36

The terse obiter in Tapiador should be compared with the holding in Ombudsman v. De Leon37 which even
chronicled the pertinent internal rules of procedure in the Office of the Ombudsman (OMB) and illustrated that,
as early as 2000, rules were already enforced by the OMB that provide for the immediate execution of
judgments pending appeal. As pointed out in De Leon, Sec. 27 of the Ombudsman Act of 1989 prescribes the
rules on the effectivity and finality of the OMBs decisions:

SEC. 27. Effectivity and Finality of Decisions. (1) All provisionary orders at the Office of the Ombudsman are
immediately effective and executory.

xxxx

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written
notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45
of the Rules of Court.

The above rules may be amended or modified by the Office of the Ombudsman x x x. (Emphasis supplied.)

The then Sec. 7, Rule III of Administrative Order No. 07 (AO 07) or the Rules of Procedure of the OMB, in turn,
stated:

Sec. 7. Finality of decision. Where the respondent is absolved of the charge, and in case of conviction where
the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine
equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision
shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion
for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of RA
6770. (Emphasis supplied.)

The Court, in Lapid v. Court of Appeals,38 has interpreted the above-quoted provision to mean that the
sanctions imposed by the Ombudsman other than public censure, reprimand, suspension of not more than one
month or a fine equivalent to one month salary are not immediately executory and can be stayed by an appeal
timely filed. The pertinent ruling in Lapid has, however, been superseded.39 On August 17, 2000, AO 14-A was
issued amending Sec. 7, Rule III of the Rules of Procedure of the OMB. The rule, as thus amended, pertinently
reads:

Section 7. Finality and execution of decision. Where x x x the penalty imposed is public censure or
reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall
be final and unappealable. In all other cases, the decision may be appealed x x x.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and
the respondent wins such appeal, he shall be considered as having been under preventive suspension and
shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or
removal. (Emphasis supplied.)

Then came AO 17 dated September 15, 2003 further amending Sec. 7 of Rule III. Thus, the section now
provides:

Section 7. Finality and execution of decision. Where the respondent is absolved of the charge, and in case of
conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month,
or a fine equivalent to one month salary, the decision shall be final, executory, and unappealable. In all other
cases, the decision may be appealed to the Court of Appeals x x x.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and
the respondent wins such appeal, he shall be considered as having been under preventive suspension and
shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or
removal. (Emphasis supplied.)

Clearly then, as early as August 17, 2000, when AO 14-A was issued, the OMB-imposed penalties in
administrative disciplinary cases were already immediately executory notwithstanding an appeal timely filed. In
this case, it must be noted that the complaint dated July 28, 2003 was filed on August 20, 2003 or after the AO
14-A has come into effect. Thus, no error can be attributed to the CA when it ruled that the penalties imposed
by the Ombudsman against petitioners are immediately executory. Immediate execution argues against the
outlandish notion that the Ombudsman can only recommend disciplinary sanctions.

The acts complained of constitute


Dishonesty but not Grave Misconduct

a. Grave Misconduct

The charges against petitioners for grave misconduct and dishonesty basically stemmed from their alleged act
of amassing unexplained wealth or acquiring properties disproportionate to their income, petitioner Aguilars
alleged failure to declare them in her SALNs, and for petitioner Hernandezs alleged acquiescence to be her
dummy. To our the mind, however, we find that even if petitioners, for argument, failed to include several
properties in their SALNs, the omission, by itself, does not amount to grave misconduct.

Largo v. Court of Appeals40 is instructional as to the nature of the offense. To constitute misconduct, the
complained act/s or omission must have a direct relation and be linked to the performance of official duties.
The Court wrote in Amosco v. Magro:

x x x By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer
and not such only as affects his character as a private individual. In such cases, it has been said at all times, it
is necessary to separate the character of the man from the character of the officer x x x. It is settled that
misconduct, misfeasance, or malfeasance warranting removal from office of an officer must have direct relation
to and be connected with the performance of official duties amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties of the office x x x.41
Owning properties disproportionate to ones salary and not declaring them in the corresponding SALNs cannot,
without more, be classified as grave misconduct. Even if these allegations were true, we cannot see our way
clear how the fact of non-declarations would have a bearing on the performance of functions by petitioner
Aguilar, as Customs Chief of the Miscellaneous Division, and by petitioner Hernandez, as Customs Operations
Officer. It is non-sequitur to assume that the omission to declare has served, in some way, to hinder the
rendition of sound public service for there is no direct relation or connection between the two. Without a nexus
between the act complained of and the discharge of duty, the charge of grave misconduct shall necessarily fail.

b. Dishonesty

Dishonesty, as juridically understood, implies the disposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of honesty or probity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray.42 It is a malevolent act that puts serious doubt
upon ones ability to perform duties with the integrity and uprightness demanded of a public officer or
employee.43

The inculpatory allegations in the controversy, if proved, qualify as acts of dishonesty that would merit
dismissal from service. The requirement of filing a SALN is enshrined, as it were, in the Constitution44 to
promote transparency in the civil service and operates as a deterrent against government officials bent on
enriching themselves through unlawful means. By mandate of law, it behooves every government official or
employee to make a complete disclosure of his or her assets, liabilities and net worth in order to suppress any
questionable accumulation of wealth because the latter usually results from non-disclosure of such matters.45

The significance of requiring the filing of a complete, truthful, and sworn SALN as a measure to curb corruption
in the bureaucracy cannot be gainsaid. Secs. 7 and 8 of the Anti-Graft and Corrupt Practices Act (RA 3019) are
emphatic on this point:

Sec. 7. Statement of Assets and Liabilities. Every public officer, within thirty days after assuming office, and
thereafter, on or before the fifteenth day of April following the close of every calendar year, x x x shall prepare
and file x x x a true, detailed and sworn statement of the amounts and sources of his income, the amounts of
his personal and family expenses and the amount of income taxes paid for the next preceding calendar year x
x x.

Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. If in accordance with the
provisions of [RA 1379], a public official has been found to have acquired during his incumbency, whether in
his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to
his salary and to his other lawful income, that fact shall be ground for dismissal or removal. Properties in the
name of the spouse and dependents of such public official may be taken into consideration, when their
acquisition through legitimate means cannot be satisfactorily shown. x x x [M]anifestly excessive expenditures
incurred by the public official, his spouse or any of their dependents including x x x frequent travel abroad of a
non-official character by any public official when such activities entail expenses evidently out of proportion to
legitimate income, shall likewise be taken into consideration in the enforcement of this Section x x x. The
circumstances hereinabove mentioned shall constitute valid ground for the administrative suspension of the
public official concerned for an indefinite period until the investigation of the unexplained wealth is completed.

The aforequoted Section 8 speaks of unlawful acquisition of wealth and excessive expenditure, the evil sought
to be suppressed and avoided, and Section 7, which directs full disclosure of wealth in the SALN, is a means
of preventing said evil and is aimed particularly at minimizing if not altogether curtailing the opportunities for
official corruption and maintaining a standard of honesty in the public service. By the SALN, the public is able
to monitor movement in the fortune of a public official; it serves as a valid check and balance mechanism to
verify undisclosed properties and wealth.46

The failure to file a truthful SALN puts in doubts the integrity of the officer and would normally amount to
dishonesty. It should be emphasized, however, that mere misdeclaration in the SALN does not automatically
amount to such an offense. Dishonesty requires malicious intent to conceal the truth or to make false
statements; otherwise, the government employee may only liable for negligence, not for dishonesty.47 In
addition, only when the accumulated wealth becomes manifestly disproportionate to the income of the public
officer/employee and income from other sources, and the public officer/employee fails to properly account or
explain these sources of income and acquisitions, does he or she become susceptible to dishonesty.48

Substantial evidence

The core of the controversy in this case lies in whether or not the complainants pieces of evidence extant in
and deducible from the records meet the quantum of evidence required to justify the dismissal action taken
against petitioners. Petitioner Aguilar argues that the initial evidentiary assessment by the OMB when it lifted
the order of preventive suspension was correct. To recall, the OMB declared at that time that the evidence
PNP-CIDG presented was not strong enough to support the basic complaint.

In essence, petitioners, Aguilar in particular, urge us to gauge whether or not the complainant has hurdled the
quantum of evidence requirement in administrative cases so as to shift the burden of evidence on them.
Respondents, on the other hand, are correct in pointing out that a review of the evidence would necessarily
entail a corresponding evaluation of facts ascertained by the Ombudsman and the CA, and that as a general
rule, the Court should refrain from delving into factual questions. However, we have already held in a catena of
cases that the general rule admits of exceptions, including when the judgment is based on misappreciation of
facts or when the findings of facts are conflicting.49 In light of the series of seemingly confusing orders and
rulings promulgated by the Ombudsman, it is beyond cavil that a review of the facts in this case is warranted.

a. Evidence against petitioner Aguilar

i. Lot 6, Block 21, BIR Village, Fairview, Quezon City

Petitioner Aguilar admits owning this parcel of land, but insists at every turn that she had consistently declared
it in her SALNs. A perusal of her SALNs from 1999-2002 would indeed show that she had declared ownership
of the Fairview property, entering it merely as "House & Lot, Q.C." This is as opposed to the allegations of the
PNP-CIDG that what she has been declaring is Lot 8 of Block 21, and not Lot 6.

We sustain the findings of the Ombudsman contained in the Supplemental Decision as to the validity of
petitioner Aguilars account on this point. As observed by the Ombudsman, the house and lot she declared as
residence is actually a duplex-type structure, with a party wall in the middle, erected on two lots, Lots 6 and 8.
When petitioner Aguilar purchased Lot 8 from one Norma Jurado, she dismantled the dividing wall to make a
solitary unit.

This explanation finds support from a perusal of her travel documents wherein she interchanges her address
between said Lot 6 and Lot 8.

ii. Antel Towers

Petitioner Aguilar argues next that the four-bedroom condominium apartment with two parking slots along
Pasay City is actually owned by her US-based brother Carlo who allegedly purchased it from Mina Gabor, as
evidenced by the Deed of Sale dated July 14, 2003.

The Court, as were the CA and the OMB, is unconvinced. A cursory reading of the deed shows July 14, 2003,
or a month after the PNP-CIDG initiated an investigation over Aguilars lifestyle, as its date of execution. On
the other hand, petitioner Aguilar admitted during the clarificatory hearing conducted on September 23, 2004
that, as early as 2000, she and her daughter have already been occupying the apartment, thus:

Q: You said in your direct clarificatory questioning that you dont know when Carlo Gupilan bought this
property? A: Yes, sir.

Q: But when did you reside in that property for the first time? A: Mga 2000 pa yun.
Q: When for the first time did you know that Carlo Gupilan acquired that Antel Towers property? A: Noon pong
sinabi niya: "Ate, napakalayo sa opisina mo ang bahay mo. Gusto mo gamitin mo yung bahay ko sa Pasay?"

Q: Mga kailan yun? A: Mga 2000.50

Evidently, a serious disparity exists between the document presented and the statements petitioner Aguilar
herself made. As the CA observed, citing the Ombudsmans findings, petitioner insists that the property is
owned by her brother Carlo who invited her to stay in his condo unit in 2000. However, per the document she
presented, the alleged Deed of Sale between him and Gabor, was only executed on July 14, 2003.

On what authority then she has been staying on the apartment unit before the alleged Carlo-Gabor sales
transaction was executed remained unexplained. This aberration coupled by her beneficial ownership of the
property, as demonstrated by her possession and occupancy of the unit, casts serious doubts as to her
brothers alleged ownership of the unit since 2000 and renders dubious the alleged deed of sale. To recall,
graft investigators will not only look into properties in a public servants name, but also those claimed by their
relatives or dummies. The SALN requirement will be a useless ritual if public officers can easily evade the
obligation to disclose if they register the asset under someone elses name.

iii. Naga City property

As petitioner Aguilar alleged, she purchased the property from her parents who, in June 1990, executed the
corresponding deed of sale in her favor. This sale may be documented, but her claim that she subsequently
sold the Naga property to one Rosendo Gonzales sometime in 1992 is not supported by evidence. She has not
adduced any document or deed proving that she no longer owns the property. On the other hand, the PNP-
CIDG was able to secure from the City Assessors office a copy of the tax declaration of the property in 2002
which, on its face, clearly yields this fact: the property is still registered under Aguilars name; the alleged sale
between her and Rosendo Gonzales was not annotated.

iv. Vehicles

There is no quibbling as to the ownership of the Honda CRV and the Isuzu Trooper.1wphi1 The question
pivots only as to the two (2) BMWs that petitioner Aguilar had acknowledged using.

Per petitioner Aguilars account, a friend of another brother, Salvador, has allowed her the use of the BMWs.
As claimed, US-based Salvador is in the business of exporting used cars from the US to the Philippines and
has local contacts which include the two corporations under whose names the BMWs are registered. The PNP-
CIDG, on the other hand, submitted Pictures51 taken during its surveillance of Aguilar showing the red and
silver BMWs leaving the parking space of Antel Towers, if not parked at slots reserved for the use of the unit
Aguilar has been occupying.

We rule, as the CA and the Ombudsman earlier did, against petitioner Aguilar on this point. As found by the
Ombudsman and confirmed by the CA, petitioner Aguilar had control and possessionboth attributes of
ownershipof the two BMW vehicles. While she alleged having only borrowed them, her statement during the
clarificatory hearings that she does not know who the real owners are over stretches credulity. Her allegation
was that the vehicles were only lent her by her brothers friend. But when pressed on how she came into
contact with the friend, who was unnamed, since her brother is in the US, she was unable to give a direct
answer.52

In another perspective, it bears to stress that petitioner Aguilar, a ranking customs official, had veritably
admitted to receiving benefits from the above named corporations which had been facilitating her brothers
used car export business. As correctly observed by the Ombudsman, Sec. 7 of RA 6713 or the Code of Ethical
Standards53prohibits public officials and employees from directly or indirectly soliciting or accepting gifts, favor
or things of monetary value from anyone in connection with any operation being regulated by, or any
transaction which may be affected by the functions of their office. The Anti-Graft and Corrupt Practices Act
declares and penalizes similar acts.54
The act complained of as regards the BMW cars for sure is indicative of corruption, tending to suggest that
petitioner Aguilar had used her position in the customs bureau to advance her brothers business interests as
well as that of the two corporations which facilitate the vehicle exportation and importation business. Thus,
even in the absence of compelling evidence to prove that petitioner Aguilar is the actual owner of the subject
high-priced BMW vehicles, she can still be held amenable under the premises for conduct prejudicial to the
best interest of the service.

v. Foreign Travels

Petitioner Aguilars exculpating allegations, as earlier narrated, as to her foreign travels during the period
material fail to convince.

While indeed some of her siblings executed affidavits tending to prove they have sufficient income to shoulder
her travels, they stopped short of saying that they did in fact contribute or entirely pay, as Aguilar urges the
Court to believe, for her and her daughters trip to Los Angeles. Nowhere in the documents was it mentioned
that they defrayed petitioner Aguilars expenses for her visits. The general affidavits merely indicated their jobs
and how much salary they receive monthly. As held in Office of the Ombudsman v. Racho,55 an unexplained
wealth case, the documents that Racho presented, purportedly showing his brothers financial capability to
send or contribute large sum of money for their business, do not prove that they did, in fact, contribute or remit
money for their supposed joint business venture.

As a final note on the matter, petitioner Aguilar had submitted Affidavits56 wherein she averred that all expenses
for her and her daughters travel shall be borne or defrayed by her alone.57 So what happens to her claim that
her siblings shouldered most of her travel expenses?

vi. Summary

Administrative proceedings are governed by the "substantial evidence rule," meaning a finding of guilt in an
administrative case may and would issue if supported by substantial evidence that the respondent has
committed the acts stated in the complaint. Substantial evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds
equally reasonable might conceivably opine otherwise.58 Its absence is not shown by stressing that there is
contrary evidence, direct or circumstantial, on record.59

In the case at bar, the required evidence sufficient to justify holding petitioner Aguilar administratively liable has
been, to us, as to the CA, satisfied. Not only did she fail to declare in her SALN the residential lot located at
Panicuason, Naga City, she likewise failed to satisfactorily explain her beneficial ownership of the Antel
Seaview Towers four-bedroom condominium unit and her use of the two BMWs registered in the name of
different corporations, which, as the records show, are both based in Olongapo City.

Relevant to this determination is Sec. 2 of RA 1379,60 in relation to Sec. 8 of RA 3019, which states that
whenever any public officer or employee has acquired during his incumbency an amount of property which is
manifestly out of proportion to his salary as such officer or employee and to his other lawful income and the
income from legitimately acquired property, said property shall be presumed prima facie to have been
unlawfully acquired. When the presumption holds, the burden of evidence then shifts to the respondent, in this
instance petitioner Aguilar, to show that the financial resources used to acquire the undeclared assets and her
expenditures came from lawful income. To be sure, petitioner Aguilar has failed to discharge this burden, as the
CA, and the OMB before it, have determined. The explanation she offered when confronted with her
undeclared acquisitions and travel splurge is too flimsy compared to her own admissions as to her beneficial
ownership over the properties. Her SALNs during the years in question clearly indicated she was a pure
compensation income earner. With an annual salary of PhP 249,876, it is incomprehensible how she could
have acquired her undeclared assets on top of paying for her annual travels and living expenses. The
discrepancy in the total valuation of her declared and undeclared assets is also too glaring for petitioner
Aguilars omission to be written off as mere negligence or carelessness. As a result, no error can be attributed
to the CA and the Ombudsman adjudging her guilty of dishonesty.
Petitioner Aguilars acquittal in Crim. Case No. 08-263022 of the Manila RTC on the ground of insufficiency of
evidence would not carry the day for her. The dismissal of the criminal aspect of the complaint filed against
Aguilar has hardly any bearing on the administrative case mainly because the quantum of evidence required to
support a finding of guilt in a criminal case is proof beyond reasonable doubt. Administrative cases are, as a
rule, separate and independent from criminal suits and are governed by differing evidentiary criteria. The
acquittal of an accused who is also a respondent in an administrative case does not conclude the
administrative proceedings, nor carry with it relief from administrative liability. This is because unlike in criminal
cases where the threshold quantum of evidence required is proof beyond reasonable doubt, only substantial
evidence is necessary in administrative cases.61

b. Evidence against petitioner Hernandez

Unlike in the case of his co-petitioner, this Court is unable to make out a case of dishonesty, let alone grave
misconduct against petitioner Hernandez. To be sure, the OMB investigating panel, in the Decision dated June
3, 2004, recommended petitioner Hernandezs exoneration. However, in a bizarre twist, the Ombudsman, in its
Supplement dated January 18, 2005, disapproved the panels own assessment of the sufficiency of evidence
as regards petitioner Hernandez and ruled that, while the Isuzu Trooper with Plate No. HRH-659 was
registered under his name, it is actually owned by Aguilar. Accordingly, the Ombudsman decreed Hernandezs
dismissal for supposedly consenting to act as Aguilars dummy. The Ombudsman, in net effect, used petitioner
Hernandezs own admission of vehicle ownership against him and ruled that he could not afford to acquire the
car on his salary of PhP 14,098 a month.

In ruling for petitioner Hernandez, we do so taking stock of the pronouncement in the first-issued Decision of
the Ombudsman. There was indeed no specific allegation in the complaint against him other than his owning
an Isuzu Trooper vehicle, which he declared in his SALN. But mere ownership is not an actionable
administrative offense. The PNP-CIDG also did not present any additional evidence as against petitioner
Hernandez. We are, thus, at a loss to understand how the Ombudsman, after saying in not so many words that
Hernandez was not guilty, would completely reverse itself in the Supplement. Having already disposed of the
issue as regards petitioner Hernandez in the Decision, it was then quite improper for the Ombudsman to
reverse its findings six months after, albeit no evidence had been adduced in the interim to support the new
finding.

While the Ombudsmans reasoningas adopted by the CA, regarding petitioner Hernandezs purchasing
capability, or lack of itmay be plausible at first blush, the latter was able to justify his ownership of the Isuzu
Trooper. Evidence on record would show that aside from his employment, he and his wife have other sources
of income. As he alleged in his pleadings, his wife, Ruth, is a practicing physician who, besides maintaining a
clinic in both the Seamens Hospital in Manila and at the Medical Center Muntinlupa, engages in OB-GYN
consultancy. And as seen in his SALN for 2002, the couple run Sarah Katrinas Drugstore in Las Pias City and
even own shares of stocks in Medical Center Muntinlupa. A car loan worth PhP 1,600,000 was also reported in
his 2002 SALN.62 In fine, there is valid reason to conclude that the Hernandez couple, with their combined
income, could very well afford a medium-priced motor van.

Given these circumstances, the innocence claim of petitioner Hernandez becomes all the more credible and
the justifications offered sufficient to absolve him of administrative liability. It should be understood that the laws
on SALN aim to curtail the acquisition of unexplained wealth. Where the source of the undisclosed wealth can
be properly accounted for, as in the case of petitioner Hernandez, then it is "explained wealth" which the law
does not penalize.63

Under OMB AO 17, if the respondent, meted by OMB the penalty of suspension or removal, is exonerated on
appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and
such other emoluments that he failed to receive by reason of that suspension or removal. So it must be in the
case of petitioner Hernandez.

WHEREFORE, the petition is PARTIALLY GRANTED. The appealed July 22, 2009 Decision and June 13, 2011
Resolution in CA-G.R. SP No.88954 are MODIFIED. The charge for Grave Misconduct against Flor Gupilan-
Aguilar is DISMISSED, while the appellate court's finding of her liability for Dishonesty and the corresponding
penalty imposed are AFFIRMED.

The CA Decision, however, insofar as it finds Honore Hernandez guilty of the offenses charged against him, is
hereby REVERSED and SET ASIDE. The complaint against him for Grave Misconduct and Dishonesty is
accordingly DISMISSED. He is accordingly ordered REINSTATED immediately to his former or equivalent
position in the Bureau of Customs without loss or diminution in his salaries and benefits. In addition, he shall
be paid his salary and such other emoluments corresponding to the period he was out of the service by reason
of the judgment of dismissal decreed by the Office of the Ombudsman, as affirmed by the Court of Appeals.

SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice

G.R. No. L-9303 July 11, 1957

CIRILO PUNZALAN, plaintiff-appellee,


vs.
ALFREDO S. ASCAO, ET AL., ETC., defendants,
ALFREDO S. ASCAO, appellant.

Villena, Guerrero Almeda for appellant.


E. V. Filamor for appellee.

FELIX, J.:

Cirilo Punzalan, the owner of a property situated at 120-124 Lopez Jaena, Paco, Manila, assessed at P834,00,
instituted this case on June 29, 1949, in the Court of First Instance of Manila (Civil Case No. 8858), to annul
the sale of said property at public auction made by the Treasurer of the City of Manila in favor of Alfredo S.
Ascua for P18.21, which was the amount of real estate taxes in arrears, and for damages.

The record shows that the sale was made in accordance with the provisions of Section 2498 of the Revised
Administrative Code; that after the sale the City Treasurer issued the corresponding certificate in the name of
the purchaser (Exh. 3); that on May 28, 1949, a final and absolute deed of sale was executed by the same
officer in favor of the purchaser in accordance with the provisions of Sec. 2500 of said Code; that on May 31,
1948, the City Treasurer wrote a letter (Exh. A) to Cirilo Punzalan advising him of the sale of his property; that
on January 20, 1949, long before the expiration of the time granted by law for the redemption of said property,
the City Treasurer again wrote another letter (Exh. B) to Cirilo Punzalan, which two letters did not reach the
addressee and were returned to the sender; that after the expiration of the period of one year, Punzalan came
to learn of the sale of his property because the buyer went to see it personally; and that upon being informed
thereof he took the necessary steps to redeem it but to no avail.

On these facts the lower court rendered decision on November 15, 1949, declaring the sale null and void
because:

(1) The "Bagong Balita Ng Bayan", through which the corresponding notice of sale at public auction was
published, had only a circulation of about twenty thousand copies and could not be considered as a newspaper
of general circulation in a city like Manila with more than half a million inhabitants at the time and more than
forty thousand properties subject to assessment;
(2) The buyer Alfredo S. Ascao being at the time of the sale an officer of the Government of the Philippine
Islands in charge of the Division of Foreign Fund Control of the Bureau of Treasury, was prohibited from
making said purchase in accordance with the provision of Section 579 of the same Code which reads:

SEC. 579. INHIBITION AGAINST PURCHASE OF PROPERTY AT A TAX SALE. Officials and
employees of the Government of the Philippine Islands are prohibited from purchasing, directly or
indirectly, from the Government, any property sold by the Government for the non-payment of any
public tax. Any such purchase by a public official shall be void.; and

(3) On the ground of equity.

From this decision, Alfredo S. Ascao appealed to the Court of Appeals, but this tribunal certified the case to
Us for the reason that the only question of fact involved in the appeal, to wit: "Whether the newspaper "Bagong
Balita Ng Bayan" was of general circulation or not", is relied by appellant on the certification issued by the
Chief of Inspection Division of the Bureau of Posts, which reads:

July 15, 1949

TO WHOM IT MAY CONCERN:

This is to certify that, according to the records of this office, "Bagong Buhay", a daily publication of
general circulation, was entered as second-class mail letter in the Manila Post Office on December 10,
1947, and that this second class mailing privilege granted said paper was revoked on November 1,
1948, due to the discontinuance of publication . . . .

and on the doctrine laid down by the Supreme Court in the case of Basa vs. Mercado, 61 Phil. 632, which
reads:

The law does not require that publication of the notice . . . should be made in the newspaper with the
largest circulation. . . .

The records show that Ing Katipunan is a newspaper of general circulation in view of the fact that it is
published for dissemination of local news and general information; that it has a bona fide subscription
list of paying subscribers; that it is published at regular intervals, and that the trial court ordered the
publication to be made in Ing Katipunan precisely because it was a newspaper of general circulation in
the province of Pampanga.

This question of fact was not touched by appellee thus eliminating this point from the issues involved in the
appeal.

In this instance, counsel for appellant makes the following assignments of error..

1. The lower court erred in declaring the auction sale, subject of the main complaint as invalid, merely
on equity; and contrary to the provisions of law involved and the weight of authority and evidence
adduced in the trial;

2. The lower court erred in construing the provisions of Section 579 of the Revised Administrative Code;
and

3. The lower court erred in awarding some kind of damages in favor of the plaintiff-appellee.
Though We are of the opinion and thus hold that the "Bagong Balita Ng-Bayan" is or was a daily publication of
general circulation, We find that the only questions that need to be considered in this appeal are (1) whether or
not Section 579 of the Revised Administrative Code is applicable to the instant case; and (2) whether or not
damages should have been awarded in favor of appellee. On the first point, the trial Judge said:

Defendant Alfredo S. Ascao is an employee of the Government of the Philippine Islands, now
Government of the Republic of the Philippines. He admits in his answer to the supplementary
complaint, that on May 21, 1948, the date of sale, he was an employee of said Government. By
expressed provision of Section 579 of the Revised Administrative Code said sale in his favor made by
defendant Treasurer is null and without value and the Court has no other alternative than to comply with
the mandate of the law.

Defendant Ascao alleges that such legal provision is not applicable to him, because the city of Manila
is not the Government of the Philippine Islands. This allegation is devoid of merit because the
Government of the City is nothing but a political subdivision of the Government of the Philippine
Islands, or better said, it is but a part of said Government to which Section 579 aforementioned refers to
and, consequently, the prohibition contained therein is applicable to the employees of the central
Government as well as to those of the City of Manila; it is as applicable to the properties levied by the
Government of the City of Manila. (Translation)

Anent the damages, appellant does not raise any question as to the amount fixed by the lower court. He
merely argues that the awarding of damages in favor of plaintiff-appellee was merely on an illegal presumption
that the auction sale was invalid, and as he contends that the said auction sale was valid and enforceable
against the whole world, hence he concludes that there is no basis in fact or in law by which a Court can look
upon the appellee with equity, for he is guilty of estoppel by his own "laches". As to said damages the trial court
said:

The Court holds that the damages alleged by plaintiff have been established and considers the sum of
P500 as sufficient compensation thereof, Defendant Ascao is the only one liable for these damages
because, knowing that he was prohibited by law to make the purchase in said auction, he acted in bad
faith in concealing this fact and failing to inform the defendant Treasurer of his status as employee of
the Government of the Philippine Islands. We have no doubt that the Treasurer of the City of Manila
would not have knowingly sold the land in question in contravention of the legal provision aforesaid.
(TRANSLATION)

We certainly agree with the points of view of His Honor on the two questions discuss above.

Wherefore, the decision appealed from is hereby affirmed, with costs against appellant.

It is so ordered.

G.R. No. 131077 August 7, 1998

LEONISA E. SUAREZ, petitioner,

vs.

COMMISSION ON AUDIT, respondent.

PANGANIBAN, J.:
A public officer cannot be held responsible for unauthorized increases in public expenditures or for high cost
estimates in public biddings without proof of his or her participation therein. An administrative decision holding
such public officer liable, without any evidence at all to back it up, is void for being rendered with grave abuse
of discretion amounting to lack of jurisdiction.

The Case

Before us is a petition for certiorari seeking the reversal of the Decision 1 dated January 18, 1996 and the
Resolution 2 dated September 9, 1997, promulgated by the Commission on Audit in COA Decision No. 96-021
and 97-506, respectively.

The assailed Decision disposed as follows: 3

PREMISES CONSIDERED, the instant appeal must be as it is hereby denied for lack of merit
and the herein disallowance of the Auditor is hereby affirmed.

Petitioner's Motion for Reconsideration was denied by Respondent Commission in its September 9, 1997
Resolution: 4

Accordingly, there being no new and material evidence adduced as would warrant reversal of
the decision sought to be reconsidered, COA Decision No. 96-021 is hereby affirmed. However,
the appeal of Messrs. Cayo E. Villanueva and Alfredo B. Adorable for exclusion from those
persons found liable under the subject disallowance may now be given due course.

The Antecedent Facts

In his Comment, the solicitor general relates these undisputed facrs: 5

On June 19, 1990, the Prequalification, Bids and Awards Committee (PBAC) of the Export
Processing Zone Authority (EPZA) conducted a public bidding for the supply and installation of
an Electrical Distribution System, Phases I and II, Stage II in the Cavite Export Processing Zone
(CEPZ).

The PBAC was composed of the following officials of EPZA, namely:

1. Tomas I. Alcantara Chairman

2. Ernesto Arrobio Vice-Chairman

3. Dante Quindoza Member

4. Sonia Valdeavilla Member

5. Floro Roco Member

6. Leonisa E. Suarez Member

(Petitioner herein)

(p. 123, Records)


Of the three (3) prospective bidders: Andrada Construction, Power Electric Co., Inc. (PELCO
Inc.) and Prime Index, Inc., only two (2) participated in the aforesaid public bidding by submitting
their respective bids, as follows:

1. PELCO, Inc. P2,966,155.00

2. Prime Index Phil. Inc. P3,425,096.00

(p. 123, Records)

The third bidder Andrada Construction did not submit any bid but submitted instead a letter of
regret.

After evaluating the aforementioned bids, PBAC, in a Memorandum dated July 9, 1990,
declared PELCO Inc. as the lowest complying bidder and thus recommended that the project be
awarded to said PELCO Inc. (p. 128, Records).

The above recommendation by PBAC was based on the Approved Agency Estimate (AAE) of
the project in the amount of P2,860,156.72 (p. 126, Records) and the Allowable Government
Estimate (AGE) in the amount of P3,027,891.19 (p. 123, Records).

The AAE was, in turn, based on the Program of Work (POW) which indicates the amount of
P2,306,578.00 as direct cost of the project (pp. 124-125, Records).

On August 2, 1990, the contract involving the bidded project was executed between EPZA,
through its Administrator Romeo J. Farolan, and PELCO Inc. through the latter's President and
General Manager Dionisio S. Barroga.

On November 28, 1990, the parties to the above contract executed a supplemental agreement
for additional works costing P2,663,394.01.

Thereafter, the main contract and the supplemental agreement were submitted for review and
evaluation by the Technical Services Office (TSO) of public respondent COA.

In an "Indorsement" dated April 3, 1991, Director Arturo D. Dadufalsa of the TSO furnished the
COA resident Auditor in EPZA with the Contract Review Report and the Supplemental
Agreement Review Report issued by the Technical Audit Specialist of the TSO (p. 34, Records)

The aforesaid reports show that the main contract and the supplemental agreement were above
COA TSO estimates by as much as 31.55% and 34.53%, respectively, due to the "higher cost of
Transformers and wrong application of the Value Added Tax (VAT)" in the Approved Agency
Estimate (AAE).

Accordingly, the COA resident [a]uditor disallowed the amount of P792,034.14 an the main
contract and the amount of P683,687.45 on the supplemental agreement or an aggregate
amount of P1,179,719.59 for the two contracts.

Thereafter, notices of disallowance were issued to the following persons who were determined
to have been jointly and severally liable for the amounts disallowed, viz:

1. Jorge G. Basalo
Assistant Division Chief

Engineering Department

2. Engr. Antonio M. Pulido

Chief, Construction Division

Engineering Department

3. Engr. Carlos Tangwangco

Chief, Power and Communications Division

Engineering Department

4. Engr. Ralph L. Mioza

Manager, Engineering Department

5. Ms. Leonisa E. Suarez (herein petitioner)

Chief, Environmental Safety Division

6. Engr. Ponciano O. Ramel

Deputy Administrator

Infrastructure Services

7. Mr. Mariano T. Laxa

Manager, Financial Services Department

8. Cayo Villanueva

Deputy Administrator

Support Services

9. Alfredo B. Adorable

Manager, Internal Audit office

10. Power Electrical Co., Inc. (PELCO Inc.)

Contractor

(pp. 39-59, Records)


Except for PELCO Inc., all the aforenamed EPZA officials jointly moved for the reconsideration
of the disallowance in question but the same was denied in a Memorandum dated April 14, 1994
issued by COA Corporate Auditor Flora C. Feliciano (pp. 113-115, Records).

Dissatisfied therewith, the concerned EPZA officials, including herein petitioner, appealed to
public respondent COA on June 9, 1994.

However, in a Decision dated January 15, 1996, public respondent COA denied the appeal.

On February 26, 1996, appellants, including herein petitioner, filed a Motion for Reconsideration
of the aforementioned Decision.

On March 16, petitioner, together with her co-appellants Cayo E. Villanueva and Alfredo
Adorable, filed an "Appeal for Exclusion from [L]iability."

On September 9, 1997, public respondent COA rendered a Resolution (COA Decision No. 97-
506) denying appellants' Motion for Reconsideration, but declared that "the appeal of Messrs.
Cayo E. Villanueva and Alfredo B. Adorable for exclusion from those persons found liable under
the subject disallowance may now be given due course." (Annex A, p. 3, Petition)

Ruling of the Commission on Audit

Respondent COA denied petitioner's appeal, ruling as follows:

This Commission finds the instant request devoid of merit. It must be pointed out that by using
the price of only one brand while specifying three (3), brands, PEZA had not exercised prudence
in the preparation of the AAE. There was no canvass made on the other brands specified, i.e.,
G.E and Westinghouse. By using the price of the Philec brand which is higher, in the
preparation of AAE, the AGE necessarily increased, giving advantage to the bidder
carrying/specifying such brand, thus resulting in a situation disadvantageous to the government.

Anent the allegation of non-observance of due process in the issuance of the said disallowance,
the same deserves scant consideration. Upon learning that the COA-TSO source of prices was
the Northwest Electrical Supply, appellants could have asked for verification, made comparison
and could have raised the issue in their appeal.

As regards the allegation that COA officials themselves are to be blamed for acting without
dispatch, it is worthy to note that the pre-audit of the financial transactions of national
government agencies and government-owned and/or controlled corporations had been lifted as
early as 1989. Thus, the review of subject contract was done as part of the post-audit.

With reference to the appeal for exclusion from liability filed by Messrs. Cayo E. Villanueva,
Deputy Administrator for Support Services, Alfredo B. Adorable, Manager, Internal Audit Office
and Leonisa E. Suarez, Chief Environmental Safety Division, suffice it to state that the
involvement of Messrs. Villanueva and Adorable in the project has no bearing or relevance on
the preparation of the AAE, which was the ground for the disallowance, as this was actually
prepared by the EPZA Engineering Department Technical Staff. Thus, they cannot be held liable
for the disallowance. However, this Commission finds no sufficient basis to exclude Ms. Leonisa
E. Suarez who is a member of the PBAC, from those answerable for the disallowance, as she
had not shown good faith and diligence in performing properly her functions as such member. 6
Hence, this petition. 7 In his Comment dated February 24, 1998, the solicitor general disagreed with the
assailed judgments of respondent and prayed that the petition be given due course. Accordingly, the Court, in
its Resolution dated April 21, 1998, required respondent to file its own comment. In a sudden change of heart,
respondent manifested that it was "adopting in full" the aforementioned Comment. 8 Thus, the Court dispensed
with the submission of memoranda and resolved to decide the petition on the basis of the pleadings already
filed.

Assignment of Errors

In her petition, 9 Suarez submits the following issues and assignment of errors:

A. Whether the public respondent committed grave abuse of discretion and erred in holding the
petitioner as among those liable for the disallowances despite the fact that she had no
participation at all in the preparation and approval of the POW and AAE used as basis of the
public bidding last June 19, 1990 for the supply and installation of electrical distribution system
at the Cavite Export Processing Zone, EPZA.

B. Whether the public respondent committed grave abuse of discretion and erred in holding the
petitioner as among those liable for the disallowances despite the absence of substantial
evidence that she acted with bad faith, malice or gross negligence in connection with the subject
public bidding, in her capacity as member of the EPZA PBAC.

C. Whether the public respondent committed grave abuse of discretion and erred in holding
petitioner liable despite the fact that EPZA did not suffer damage or injury from the transaction.

D. Whether the public respondent committed grave abuse of discretion in holding only the
petitioner liable out of the total composition of the EPZA PBAC, thereby denying her the equal
protection of the laws.

The solicitor general, in his Comment, 10 summarized the main issue thus:

. . . [W]hether or not public respondent COA committed grave abuse of discretion in affirming
the Decision of the COA Resident Auditor holding petitioner jointly and severally liable, with the
other EPZA officials, for the disallowance in question.

The Court Ruling

The petition is clearly meritorious. Even Respondent COA conceded this when it adopted, as its own, the
solicitor general's Comment urging this Court to grant due course to the petition. In fact, the Court is thoroughly
surprised why, in the first place, the COA held petitioner liable; and, in the second, why it did not amend its
assailed Decision upon realizing its mistake.

Liability Based on Participation

Presidential Decree 1445, "Ordaining and Instituting a Government Auditing Code of the Philippines," provides:

Sec. 103. General liability for unlawful expenditures. Expenditures of government funds or
uses of government property in violation of law or regulations shall be a personal liability of the
official or employee found to be directly responsible therefor. (Emphasis supplied.)

More specifically, Section 19 of the Manual of Certificate of Settlement and Balances states:
19.1 The liability of public officers and other persons for audit disallowances shall be determined
on the basis of: (a) the nature of the disallowance; (b) the duties, responsibilities or obligations
of the officers/persons concerned; (c) the extent of their participation or involvement in the
disallowed transaction; and (d) the amount of losses or damages suffered by the government
thereby. The following are illustrative examples:

xxx xxx xxx

19.1.3 Public officers who approve or authorize transactions involving the


expenditure of government funds and uses of government properties shall be
liable for all losses arising out of their negligence or failure to exercise the
diligence of a good father of a family.

xxx xxx xxx

19.2 The liability for audit charges shall be measured by the individual participation or
involvement of persons in the charged transaction; i.e. public officers whose duties require the
appraisal/assessment/collection of government revenues and receipts shall be liable for under-
appraisal, under-assessment, and under-collection thereof.

On the basis of the foregoing, there is absolutely no basis for petitioner's liability for the disauthorized sum.

Respondent COA disallowed the amount in question, because the actual costs of the principal and the
supplemental contracts were 31.55 percent and 34.53 percent higher than the COA-TSO estimates. The
discrepancy, in turn, arose from the high cost of transformers and the wrong computation of the value-added
tax appearing in the approved agency estimate (AAE).

The AAE was based on the program of work (POW), which was prepared and approved by the following
officials of the EPZA engineering department: Jorge Basalo, assistant division chief; Antonio M. Pulido, chief of
the construction division; and Ismael Itaas. Petitioner had no part in the preparation of the POW.

The AAE, on the other hand, was prepared and approved by two EPZA; officials: Ponciano O. Ramel, deputy
administrator for infrastructure services; and Pablo V. Malixi, EPZA officer in charge. Petitioner had no part in
the preparation of the AAE, either.

In fact, petitioner's participation in the transaction was limited to her membership in the PBAC that conducted
the bidding, evaluated the bids and recommended the award of the contract to the lowest complying
bidder. 11 COA found no irregularity in the conduct of said public bidding or in the award of the contract. It must
be stressed further that it disallowed the amount in question, not because of any problem in the conduct of the
public bidding, but because of the erroneous preparation of the AAE.

Clearly, petitioner's participation in the PBAC does not render her liable for the disallowed amounts. As the
solicitor general correctly argued, petitioner had nothing to do with the preparation and the computation of the
AAE and, thus, should not have been held liable for the amounts disauthorized during the post-audit.

Administrative Due Process

It also appears that said Decision and Resolution of Respondent COA contravene the principles of
administrative due process. Admittedly, she was accorded an opportunity to present her side, because COA
heard her on appeal. 12 But due process requires more than giving a person the right to be heard. In a
landmark Decision, 13 the Court enumerated the following principles governing administrative due process:
1. The right to a hearing, which included the right to present one's case and
submit evidence in support thereof;

2. The tribunal must consider the evidence presented;

3. The decision must have something to support itself;

4. The evidence must be substantial;

5. The decision must be rendered on the evidence presented at the hearing, or at


least contained in the record and disclosed to the parties affected;

6. The tribunal or body or any of its judges must act on its or his own
independent consideration of the law and facts of the controversy and not simply
accept the view of a subordinate in arriving at a decision; and

7. The board or body should in all controversial questions, render its decision in
such a manner that the parties to the proceeding can know the various issues
involved and the reason for the decision rendered.

In this case, the assailed COA Decision did not contain substantial evidence showing petitioner's responsibility
for the disallowance. Substantial evidence means "such reasonable evidence as a reasonable mind might
accept as adequate to support a conclusion." 14 COA anchored the disallowance and the liability of petitioner
on the following: the failure to canvass other brands of the material purchased and the submission and the
approval of an erroneous AAE. Nonetheless, the assailed Decision did not show that petitioner was directly
responsible for these proven acts.

In fact, because Villanueva and Adorable were not responsible for these acts, COA exonerated them, viz.:

. . . [T]he involvement of Messrs. Villanueva and Adorable in the project has no bearing or
relevance on the preparation of the AAE, which was the around for the disallowance, as this
was actually prepared by the EPZA Engineering Department Technical Staff. Thus, they cannot
be held liable for the disallowance. (Emphasis supplied.)

The Court wonders why the same principle was not applied to petitioner who was similarly situated. As
observed by the solicitor general, the only member of the PBAC who was held liable for the amounts
disallowed was petitioner not the chairman, the vice chairman, or any of the three other members.

Presumption of Regular Performance of Duty

In holding petitioner liable for having failed to show good faith and diligence in properly performing her
functions as a member of the PBAC, Respondent COA misconstrued Sec. 29.2 15 of the Revised CSB
Manual. The aforesaid section requires a clear showing of bad faith, malice or gross negligence before a public
officer may be held civilly liable for acts done in the performance of his or her official duties. The same principle
is reiterated in Book I, Chapter 9, Section 38 of the 1987 Administrative Code. 16 A public officer is presumed
to have acted in the regular performance of his/her duty; therefore, he/she cannot be held civilly liable, unless
contrary evidence is presented to overcome the presumption. There is no such evidence in this case. From the
foregoing, it is as clear as day that Respondent COA committed grave abuse of discretion in including
petitioner among those liable for the subject disallowance.

WHEREFORE, the assailed Decision and Resolution are hereby REVERSED AND SET ASIDE, insofar as
they refer to petitioner who is EXONERATED from liability.
SO ORDERED.

G.R. No. 186616 November 20, 2009

COMMISSION ON ELECTIONS, Petitioner,


vs.
CONRADO CRUZ, SANTIAGO P. GO, RENATO F. BORBON, LEVVINO CHING, CARLOS C. FLORENTINO,
RUBEN G. BALLEGA, LOIDA ALCEDO, MARIO M. CAJUCOM, EMMANUEL M. CALMA, MANUEL A.
RAYOS, WILMA L. CHUA, EUFEMIO S. ALFONSO, JESUS M. LACANILAO, BONIFACIO N. ALCAPA,
JOSE H. SILVERIO, RODRIGO DEVELLES, NIDA R. PAUNAN, MARIANO B. ESTUYE, JR., RAFAEL C.
AREVALO, ARTURO T. MANABAT, RICARDO O. LIZARONDO, LETICIA C. MATURAN, RODRIGO A.
ALAYAN, LEONILO N. MIRANDA, DESEDERIO O. MONREAL, FRANCISCO M. BAHIA, NESTOR R.
FORONDA, VICENTE B. QUE, JR., AURELIO A. BILUAN, DANILO R. GATCHALIAN, LOURDES R. DEL
MUNDO, EMMA O. CALZADO, FELIMON DE LEON, TANY V. CATACUTAN, AND CONCEPCION P.
JAO, Respondents.

DECISION

BRION, J.:

We resolve in this Decision the constitutional challenge, originally filed before the Regional Trial Court of
Caloocan City, Branch 128 (RTC), against the following highlighted portion of Section 2 of Republic Act (RA)
No. 9164 (entitled "An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections,
amending RA No. 7160, as amended, otherwise known as the Local Government Code of 1991"):

Sec. 2. Term of Office. The term of office of all barangay and sangguniang kabataan officials after the
effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than three (3) consecutive terms in the same position:
Provided, however, That the term of office shall be reckoned from the 1994 barangay elections. Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official was elected.

The RTC granted the petition and declared the challenged proviso constitutionally infirm. The present petition,
filed by the Commission on Elections (COMELEC), seeks a review of the RTC decision.1

THE ANTECEDENTS

Before the October 29, 2007 Synchronized Barangay and Sangguniang Kabataan (SK) Elections, some of the
then incumbent officials of several barangays of Caloocan City2 filed with the RTC a petition for declaratory
relief to challenge the constitutionality of the above-highlighted proviso, based on the following arguments:

I. The term limit of Barangay officials should be applied prospectively and not retroactively.

II. Implementation of paragraph 2 Section 2 of RA No. 9164 would be a violation of the equal protection
of the law.

III. Barangay officials have always been apolitical.

The RTC agreed with the respondents contention that the challenged proviso retroactively applied the three-
term limit for barangay officials under the following reasoning:
When the Local Government Code of 1991 took effect abrogating all other laws inconsistent therewith, a
different term was ordained. Here, this Court agrees with the position of the petitioners that Section 43 of the
Code specifically exempted barangay elective officials from the coverage of the three (3) consecutive term limit
rule considering that the provision applicable to these (sic) class of elective officials was significantly separated
from the provisions of paragraphs (a) and (b) thereof. Paragraph (b) is indeed intended to qualify paragraph (a)
of Section 43 as regards to (sic) all local elective officials except barangay officials. Had the intention of the
framers of the Code is (sic) to include barangay elective officials, then no excepting proviso should have been
expressly made in paragraph (a) thereof or, by implication, the contents of paragraph (c) should have been
stated ahead of the contents of paragraph (b).

xxxx

Clearly, the intent of the framers of the constitution (sic) is to exempt the barangay officials from the three (3)
term limits (sic) which are otherwise applicable to other elected public officials from the Members of the House
of Representatives down to the members of the sangguniang bayan/panlungsod. It is up for the Congress
whether the three (3) term limit should be applied by enacting a law for the purpose.

The amendment introduced by R.A. No. 8524 merely increased the term of office of barangay elective officials
from three (3) years to five (5) years. Like the Local Government Code, it can be noted that no consecutive
term limit for the election of barangay elective officials was fixed therein.

The advent of R.A. 9164 marked the revival of the consecutive term limit for the election of barangay elective
officials after the Local Government Code took effect. Under the assailed provision of this Act, the term of office
of barangay elective officials reverted back to three (3) years from five (5) years, and, this time, the legislators
expressly declared that no barangay elective official shall serve for more than three (3) consecutive terms in
the same position. The petitioners are very clear that they are not assailing the validity of such provision fixing
the three (3) consecutive term limit rule for the election of barangay elective officials to the same position. The
particular provision the constitutionality of which is under attack is that portion providing for the reckoning of the
three (3) consecutive term limit of barangay elective officials beginning from the 1994 barangay elections.

xxx

Section 2, paragraph 2 of R.A. 9164 is not a mere restatement of Section 43(c) of the Local Government Code.
As discussed above, Section 43(c) of the Local Government Code does not provide for the consecutive term
limit rule of barangay elective officials. Such specific provision of the Code has in fact amended the previous
enactments (R.A. 6653 and R.A. 6679) providing for the consecutive term limit rule of barangay elective
officials. But, such specific provision of the Local Government Code was amended by R.A. 9164, which
reverted back to the previous policy of fixing consecutive term limits of barangay elective officials." 3

In declaring this retroactive application unconstitutional, the RTC explained that:

By giving a retroactive reckoning of the three (3) consecutive term limit rule for barangay officials to the
1994 barangay elections, Congress has violated not only the principle of prospective application of statutes but
also the equal protection clause of the Constitution inasmuch as the barangay elective officials were singled
out that their consecutive term limit shall be counted retroactively. There is no rhyme or reason why the
consecutive limit for these barangay officials shall be counted retroactively while the consecutive limit for other
local and national elective officials are counted prospectively. For if the purpose of Congress is [sic] to classify
elective barangay officials as belonging to the same class of public officers whose term of office are limited to
three (3) consecutive terms, then to discriminate them by applying the proviso retroactively violates the
constitutionally enshrined principle of equal protection of the laws.
Although the Constitution grants Congress the power to determine such successive term limit
of barangay elective officials, the exercise of the authority granted shall not otherwise transgress other
constitutional and statutory privileges.

This Court cannot subscribe to the position of the respondent that the legislature clearly intended that the
provision of RA No. 9164 be made effective in 1994 and that such provision is valid and constitutional. If we
allow such premise, then the term of office for those officials elected in the 1997 barangay elections should
have ended in year 2000 and not year 2002 considering that RA No. 9164 provides for a three-year term
of barangay elective officials. The amendment introduced by R.A. No. 8524 would be rendered nugatory in
view of such retroactive application. This is absurd and illusory.

True, no person has a vested right to a public office, the same not being property within the contemplation of
constitutional guarantee. However, a cursory reading of the petition would show that the petitioners are not
claiming vested right to their office but their right to be voted upon by the electorate without being burdened by
the assailed provision of the law that, in effect, rendered them ineligible to run for their incumbent positions.
Such right to run for office and be voted for by the electorate is the right being sought to be protected by
assailing the otherwise unconstitutional provision.

Moreover, the Court likewise agrees with the petitioners that the law violated the one-act-one subject rule
embodied in the Constitution. x x x x The challenged laws title is "AN ACT PROVIDING FOR THE
SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS, AMENDING REPUBLIC ACT
7160 OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991 AND FOR OTHER
PURPOSES." x x x x

xxxx

To this court, the non-inclusion in the title of the act on the retroactivity of the reckoning of the term limits posed
a serious constitutional breach, particularly on the provision of the constitution [sic] that every bill must
embrace only one subject to be expressed in the title thereof.

x x x the Court is of the view that the affected barangay officials were not sufficiently given notice that they
were already disqualified by a new act, when under the previous enactments no such restrictions were
imposed.

Even if this Court would apply the usual test in determining the sufficiency of the title of the bill, the challenged
law would still be insufficient for how can a retroactivity of the term limits be germane to the synchronization of
an election x x x x.4

The COMELEC moved to reconsider this decision but the RTC denied the motion. Hence, the present petition
on a pure question of law.

The Petition

The COMELEC takes the position that the assailed law is valid and constitutional. RA No. 9164 is an
amendatory law to RA No. 7160 (the Local Government Code of 1991 or LGC) and is not a penal law; hence, it
cannot be considered an ex post facto law. The three-term limit, according to the COMELEC, has been
specifically provided in RA No. 7160, and RA No. 9164 merely restated the three-term limitation. It further
asserts that laws which are not penal in character may be applied retroactively when expressly so provided
and when it does not impair vested rights. As there is no vested right to public office, much less to an elective
post, there can be no valid objection to the alleged retroactive application of RA No. 9164.
The COMELEC also argues that the RTCs invalidation of RA No. 9164 essentially involves the wisdom of the
law the aspect of the law that the RTC has no right to inquire into under the constitutional separation of
powers principle. The COMELEC lastly argues that there is no violation of the one subject-one title rule, as the
matters covered by RA No. 9164 are related; the assailed provision is actually embraced within the title of the
law.

THE COURTS RULING

We find the petition meritorious. The RTC legally erred when it declared the challenged proviso
unconstitutional.

Preliminary Considerations

We find it appropriate, as a preliminary matter, to hark back to the pre-1987 Constitution history of
the barangay political system as outlined by this Court in David v. COMELEC,5 and we quote:

As a unit of government, the barangay antedated the Spanish conquest of the Philippines. The word
"barangay" is derived from the Malay "balangay," a boat which transported them (the Malays) to these shores.
Quoting from Juan de Plasencia, a Franciscan missionary in 1577, Historian Conrado Benitez wrote that
the barangay was ruled by a dato who exercised absolute powers of government. While the Spaniards kept
the barangay as the basic structure of government, they stripped the dato or rajah of his powers. Instead,
power was centralized nationally in the governor general and locally in the encomiendero and later, in
the alcalde mayor and the gobernadorcillo. The dato or rajah was much later renamed cabeza de
barangay, who was elected by the local citizens possessing property. The position degenerated from a title of
honor to that of a "mere government employee. Only the poor who needed a salary, no matter how low,
accepted the post."

After the Americans colonized the Philippines, the barangays became known as "barrios." For some time, the
laws governing barrio governments were found in the Revised Administrative Code of 1916 and later in the
Revised Administrative Code of 1917. Barrios were granted autonomy by the original Barrio Charter, RA 2370,
and formally recognized as quasi-municipal corporations by the Revised Barrio Charter, RA 3590. During the
martial law regime, barrios were "declared" or renamed "barangays" -- a reversion really to their pre-Spanish
names -- by PD. No. 86 and PD No. 557. Their basic organization and functions under RA 3590, which was
expressly "adopted as the Barangay Charter," were retained. However, the titles of the officials were changed
to "barangay captain," "barangay councilman," "barangay secretary" and "barangay treasurer."

Pursuant to Sec. 6 of Batas Pambansa Blg. 222, "a Punong Barangay (Barangay Captain) and
six Kagawads ngSangguniang Barangay (Barangay Councilmen), who shall constitute the presiding officer and
members of the Sangguniang Barangay (Barangay Council) respectively" were first elected on May 17, 1982.
They had a term of six years which began on June 7, 1982.

The Local Government Code of 1983 also fixed the term of office of local elective officials at six years. Under
this Code, the chief officials of the barangay were the punong barangay, six
elective sangguniang barangay members, the kabataang barangay chairman, a barangay secretary and
a barangay treasurer.

B.P. Blg. 881, the Omnibus Election Code, reiterated that barangay officials "shall hold office for six years," and
stated that their election was to be held "on the second Monday of May nineteen hundred and eighty eight and
on the same day every six years thereafter." [Emphasis supplied.]

The 1987 Philippine Constitution extended constitutional recognition to barangays under Article X, Section 1 by
specifying barangays as one of the territorial and political subdivisions of the country, supplemented by Section
8 of the same Article X, which provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected. [Emphasis supplied.]

The Constitutional Commissions deliberations on Section 8 show that the authority of Congress to legislate
relates not only to the fixing of the term of office of barangay officials, but also to the application of the three-
term limit. The following deliberations of the Constitutional Commission are particularly instructive on this point:

MR. NOLLEDO: One clarificatory question, Madam President. What will be the term of the office
of barangay officials as provided for?

MR. DAVIDE: As may be determined by law.

MR. NOLLEDO: As provided for in the Local Government Code?

MR. DAVIDE: Yes.

xxx xxx xxx

THE PRESIDENT: Is there any other comment? Is there any objection to this proposed new section as
submitted by Commissioner Davide and accepted by the Committee?

MR. RODRIGO: Madam President, does this prohibition to serve for more than three consecutive terms
apply to barangay officials?

MR. DAVIDE: Madam President, the voting that we had on the terms of office did not include
the barangay officials because it was then the stand of the Chairman of the Committee on Local
Governments that the term of barangay officials must be determined by law. So it is now for the law to
determine whether the restriction on the number of reelections will be included in the Local Government
Code.

MR. RODRIGO: So that is up to Congress to decide.

MR. DAVIDE: Yes.

MR. RODRIGO: I just wanted that clear in the record."6 [Emphasis supplied.]

After the effectivity of the 1987 Constitution, the barangay election originally scheduled by Batas Pambansa
Blg. 8817 on the second Monday of May 1988 was reset to "the second Monday of November 1988 and every
five years thereafter by RA No. 6653."8 Section 2 of RA No. 6653 changed the term of office
of barangay officials and introduced a term limitation as follows:

SEC. 2. The term of office of barangay officials shall be for five (5) years from the first day of January following
their election. Provided, however, That no kagawad shall serve for more than two (2) consecutive
terms. [Emphasis supplied]

Under Section 5 of RA No. 6653, the punong barangay was to be chosen by seven kagawads from among
themselves, and they in turn, were to be elected at large by the barangay electorate. The punong barangay,
under Section 6 of the law, may be recalled for loss of confidence by an absolute majority vote of
the Sangguniang Barangay, embodied in a resolution that shall necessarily include
the punong barangays successor.
The election date set by RA No. 6653 on the second Monday of November 1988 was postponed yet again to
March 28, 1989 by RA No. 6679 whose pertinent provision states:

SEC. 1. The elections of barangay officials set on the second Monday of November 1988 by Republic Act No.
6653 are hereby postponed and reset to March 28, 1989. They shall serve a term which shall begin on the first
day of May 1989 and ending on the thirty-first day of May 1994.

There shall be held a regular election of barangay officials on the second Monday of May 1994 and on the
same day every five (5) years thereafter. Their term shall be for five (5) years which shall begin on the first day
of June following the election and until their successors shall have been elected and qualified: Provided, That
no barangay official shall serve for more than three (3) consecutive terms.

The barangay elections shall be nonpartisan and shall be conducted in an expeditious and inexpensive
manner.

Significantly, the manner of election of the punong barangay was changed

Section 5 of the law provided that while the seven kagawads were to be elected by the registered voters of the
barangay, "(t)he candidate who obtains the highest number of votes shall be the punong barangay and in the
event of a tie, there shall be a drawing of lots under the supervision of the Commission on Elections."

More than two (2) years after the 1989 barangay elections, RA No. 7160 (the LGC) introduced the following
changes in the law:

SEC. 41. Manner of Election. -- (a) The x x x punong barangay shall be elected at large x x x by the qualified
voters" therein.

SEC. 43. Term of Office. - (a) The term of office of all local elective officials elected after the effectivity of this
Code shall be three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law,
except that of elective barangay officials: Provided, That all local officials first elected during the local elections
immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992.

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in
the continuity of service for the full term for which the elective official concerned was elected.

(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three
(3) years, which shall begin after the regular election of barangay officials on the second Monday of
May 1994.

SEC. 387. Chief Officials and Offices. -- (a) There shall be in each barangay a punong barangay, seven
(7) sangguniang barangay members, the sangguniang kabataan chairman, a barangay secretary and
a barangay treasurer.

xxxxxxxxx

SEC. 390. Composition. -- The Sangguniang barangay, the legislative body of the barangay, shall be
composed of the punong barangay as presiding officer, and the seven (7) regular sanguniang
barangay members elected at large and the sanguniang kabataan chairman as members. [Emphasis
supplied.]
This law started the direct and separate election of the punong barangay by the "qualified voters" in
the barangay and not by the seven (7) kagawads from among themselves.9

Subsequently or on February 14, 1998, RA No. 8524 changed the three-year term of office
of barangay officials under Section 43 of the LGC to five (5) years. On March 19, 2002, RA No. 9164
introduced the following significant changes: (1) the term of office of barangay officials was again fixed at three
years on the reasoning that the barangay officials should not serve a longer term than their supervisors;10 and
(2) the challenged proviso, which states that the 1994 election shall be the reckoning point for the application
of the three-term limit, was introduced. Yet another change was introduced three years after or on July 25,
2005 when RA No. 9340 extended the term of the then incumbent barangay officials due to expire at noon of
November 30, 2005 under RA No. 9164 to noon of November 30, 2007. The three-year term limitation
provision survived all these changes.

Congress Plenary Power to Legislate Term Limits for Barangay Officials and Judicial Power

In passing upon the issues posed to us, we clarify at the outset the parameters of our powers.

As reflected in the above-quoted deliberations of the 1987 Constitution, Congress has plenary authority under
the Constitution to determine by legislation not only the duration of the term of barangay officials, but also the
application to them of a consecutive term limit. Congress invariably exercised this authority when it enacted no
less than six (6) barangay-related laws since 1987.

Through all these statutory changes, Congress had determined at its discretion both the length of the term of
office of barangay officials and their term limitation. Given the textually demonstrable commitment by the 1987
Constitution to Congress of the authority to determine the term duration and limition of barangay officials under
the Constitution, we consider it established that whatever Congress, in its wisdom, decides on these matters
are political questions beyond the pale of judicial scrutiny,11 subject only to the certiorari jurisdiction of the
courts provided under Section 1, Article VIII of the Constitution and to the judicial authority to invalidate any law
contrary to the Constitution.12

Political questions refer "to those questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government; it is concerned with issues dependent upon the wisdom,
not legality of a particular measure."13 These questions, previously impervious to judicial scrutiny can now be
inquired into under the limited window provided by Section 1, Article VIII. Estrada v. Desierto14 best describes
this constitutional development, and we quote:

To a great degree, the 1987 Constitution has narrowed the reach of the political doctrine when it expanded the
power of judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.
Heretofore, the judiciary has focused on the "thou shalt nots" of the Constitution directed against the exercise
of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it
can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing
nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. xxxx

Thus, we can inquire into a congressional enactment despite the political question doctrine, although the
window provided us is narrow; the challenge must show grave abuse of discretion to justify our intervention.

Other than the Section 1, Article VIII route, courts can declare a law invalid when it is contrary to any provision
of the Constitution. This requires the appraisal of the challenged law against the legal standards provided by
the Constitution, not on the basis of the wisdom of the enactment. To justify its nullification, the breach of the
Constitution must be clear and unequivocal, not a doubtful or equivocal one, as every law enjoys a strong
presumption of constitutionality.15 These are the hurdles that those challenging the constitutional validity of a
law must overcome.

The present case, as framed by the respondents, poses no challenge on the issue of grave abuse of
discretion. The legal issues posed relate strictly to compliance with constitutional standards. It is from this
prism that we shall therefore resolve this case.

The Retroactive Application Issue

a. Interpretative / Historical Consideration

The respondents first objection to the challenged provisos constitutionality is its purported retroactive
application of the three-term limit when it set the 1994 barangay elections as a reckoning point in the
application of the three-term limit.

The respondents argued that the term limit, although present in the previous laws, was not in RA No. 7160
when it amended all previous barangay election laws. Hence, it was re-introduced for the first time by RA No.
9164 (signed into law on March 19, 2002) and was applied retroactively when it made the term limitation
effective from the 1994 barangay elections. As the appealed ruling quoted above shows, the RTC fully agreed
with the respondents position.

Our first point of disagreement with the respondents and with the RTC is on their position that a retroactive
application of the term limitation was made under RA No. 9164. Our own reading shows that no retroactive
application was made because the three-term limit has been there all along as early as the
second barangay law (RA No. 6679) after the 1987 Constitution took effect; it was continued under the LGC
and can still be found in the current law. We find this obvious from a reading of the historical development of
the law.

The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it imposed a two-
consecutive term limit. After only six months, Congress, under RA No. 6679 (1988), changed the two-term limit
by providing for a three-consecutive term limit. This consistent imposition of the term limit gives no hint of any
equivocation in the congressional intent to provide a term limitation. Thereafter, RA No. 7160 the LGC
followed, bringing with it the issue of whether it provided, as originally worded, for a three-term limit
for barangay officials. We differ with the RTC analysis of this issue.

Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is divided into several chapters
dealing with a wide range of subject matters, all relating to local elective officials, as follows: a. Qualifications
and Election (Chapter I); b. Vacancies and Succession (Chapter II), c. Disciplinary Actions (Chapter IV) and d.
Recall (Chapter V). Title II likewise contains a chapter on Local Legislation (Chapter III).

These Title II provisions are intended to apply to all local elective officials, unless the contrary is clearly
provided. A contrary application is provided with respect to the length of the term of office under Section 43(a);
while it applies to all local elective officials, it does not apply to barangay officials whose length of term is
specifically provided by Section 43(c). In contrast to this clear case of an exception to a general rule, the three-
term limit under Section 43(b) does not contain any exception; it applies to all local elective officials who must
perforce include barangay officials.

An alternative perspective is to view Sec. 43(a), (b) and (c) separately from one another as independently
standing and self-contained provisions, except to the extent that they expressly relate to one another. Thus,
Sec. 43(a) relates to the term of local elective officials, except barangay officials whose term of office is
separately provided under Sec. 43(c). Sec. 43(b), by its express terms, relates to all local elective officials
without any exception. Thus, the term limitation applies to all local elective officials without any exclusion or
qualification.

Either perspective, both of which speak of the same resulting interpretation, is the correct legal import of
Section 43 in the context in which it is found in Title II of the LGC.1avvphi1

To be sure, it may be argued, as the respondents and the RTC did, that paragraphs (a) and (b) of Section 43
are the general law for elective officials (other than barangay officials); and paragraph (c) is the specific law
on barangay officials, such that the silence of paragraph (c) on term limitation for barangay officials indicates
the legislative intent to exclude barangay officials from the application of the three-term limit. This reading,
however, is flawed for two reasons.

First, reading Section 43(a) and (b) together to the exclusion of Section 43(c), is not justified by the plain texts
of these provisions. Section 43(a) plainly refers to local elective officials, except elective barangay officials. In
comparison, Section 43(b) refers to all local elective officials without exclusions or exceptions. Their respective
coverages therefore vary so that one cannot be said to be of the same kind as the other. Their separate topics
additionally strengthen their distinction; Section 43(a) refers to the term of office while Section 43(b) refers to
the three-term limit. These differences alone indicate that Sections 43(a) and (b) cannot be read together as
one organic whole in the way the RTC suggested. Significantly, these same distinctions apply between Sec.
43(b) and (c).

Second, the RTC interpretation is flawed because of its total disregard of the historical background of Section
43(c) a backdrop that we painstakingly outlined above.

From a historical perspective of the law, the inclusion of Section 43(c) in the LGC is an absolute necessity to
clarify the length of term of barangay officials. Recall that under RA No. 6679, the term of office
of barangay officials was five (5) years. The real concern was how Section 43 would interface with RA No.
6679. Without a categorical statement on the length of the term of office of barangay officials, a general three-
year term for all local elective officials under Section 43(a), standing alone, may not readily and completely
erase doubts on the intended abrogation of the 5-year term for barangay officials under RA No. 6679. Thus,
Congress added Section 43(c) which provided a categorical three-year term for these officials. History tells us,
of course, that the unequivocal provision of Section 43(c) notwithstanding, an issue on what is the exact term
of office of barangay officials was still brought to us via a petition filed by no less than the President of the Liga
ng Mga Barangay in 1997. We fully resolved the issue in the cited David v. Comelec.

Section 43(c) should therefore be understood in this context and not in the sense that it intended to provide the
complete rule for the election of barangay officials, so that in the absence of any term limitation proviso under
this subsection, no term limitation applies to barangay officials. That Congress had the LGCs three-term limit
in mind when it enacted RA No. 9164 is clear from the following deliberations in the House of Representatives
(House) on House Bill No. 4456 which later became RA No. 9164:

MARCH 5, 2002:

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Majority Leader.

REP. ESCUDERO. Mr. Speaker, next to interpellate is the Gentleman from Zamboanga City. I ask that the
Honorable Lobregat be recognized.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). The Honorable Lobregat is recognized.

REP. LOBREGAT. Thank you very much, Mr. Speaker. Mr. Speaker, this is just
REP. MACIAS. Willingly to the Gentleman from Zamboanga City.

REP. LOBREGAT. points of clarification, Mr. Speaker, the term of office. It says in Section 4, "The term of
office of all Barangay and sangguniang kabataan officials after the effectivity of this Act shall be three years."
Then it says, "No Barangay elective official shall serve for more than three (3) consecutive terms in the same
position."

Mr. Speaker, I think it is the position of the committee that the first term should be reckoned from election of
what year, Mr. Speaker?

REP. MACIAS. After the adoption of the Local Government Code, Your Honor. So that the first election is to be
reckoned on, would be May 8, 1994, as far as the Barangay election is concerned.

REP. LOBREGAT. Yes, Mr. Speaker. So there was an election in 1994.

REP. MACIAS. Then an election in 1997.

REP. LOBREGAT. There was an election in 1997. And there will be an election this year

REP. LOBREGAT. election this year.

REP. MACIAS. That is correct. This will be the third.

xxx xxx xxx

REP. SUMULONG. Mr. Speaker.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.) The Honorable Sumulong is recognized.

REP. SUMULONG. Again, with the permission of my Chairman, I would like to address the question of
Congressman Lobregat.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Please proceed.

REP. SUMULONG. With respect to the three-year consecutive term limits of Barangay Captains that is not
provided for in the Constitution and that is why the election prior to 1991 during the enactment of the Local
Government Code is not counted because it is not in the Constitution but in the Local Government Code where
the three consecutive term limits has been placed. [Emphasis supplied.]

which led to the following exchanges in the House Committee on Amendments:

March 6, 2002

COMMITTEE ON AMENDMENTS

REP. GONZALES. May we now proceed to committee amendment, if any, Mr. Speaker.

THE DEPUTY SPEAKER (Rep. Gonzalez). The Chair recognizes the distinguished Chairman of the
Committee on Suffrage and Electoral Reforms.
REP. SYJUCO. Mr. Speaker, on page 2, line 7, after the word "position", substitute the period (.) and add the
following: PROVIDED HOWEVER THAT THE TERM OF OFFICE SHALL BE RECKONED FROM THE 1994
BARANGAY ELECTIONS. So that the amended Section 4 now reads as follows:

"SEC. 4. Term of Office. The term of office of all barangay and sangguniang kabataan officials after the
effectivity of this Act shall be three (3) years.

No barangay elective local official shall serve for more than three (3) consecutive terms in the same position
COLON (:) PROVIDED, HOWEVER, THAT THE TERM OF OFFICE SHALL BE RECKONED FROM THE
1994 BARANGAY ELECTIONS. Voluntary renunciation of office for any length of time shall not be considered
as an interruption in the continuity of service for the full term for which the elective official was elected.

The House therefore clearly operated on the premise that the LGC imposed a three-term limit
for barangay officials, and the challenged proviso is its way of addressing any confusion that may arise from
the numerous changes in the law.

All these inevitably lead to the conclusion that the challenged proviso has been there all along and does not
simply retroact the application of the three-term limit to the barangay elections of 1994. Congress merely
integrated the past statutory changes into a seamless whole by coming up with the challenged proviso.

With this conclusion, the respondents constitutional challenge to the proviso based on retroactivity must
fail.

b. No Involvement of Any Constitutional Standard

Separately from the above reason, the constitutional challenge must fail for a more fundamental reason the
respondents retroactivity objection does not involve a violation of any constitutional standard.

Retroactivity of laws is a matter of civil law, not of a constitutional law, as its governing law is the Civil
Code,16 not the Constitution. Article 4 of the Civil Code provides that laws shall have no retroactive effect
unless the contrary is provided. The application of the Civil Code is of course self-explanatory laws enacted
by Congress may permissibly provide that they shall have retroactive effect. The Civil Code established a
statutory norm, not a constitutional standard.

The closest the issue of retroactivity of laws can get to a genuine constitutional issue is if a laws retroactive
application will impair vested rights. Otherwise stated, if a right has already vested in an individual and a
subsequent law effectively takes it away, a genuine due process issue may arise. What should be involved,
however, is a vested right to life, liberty or property, as these are the ones that may be considered protected by
the due process clause of the Constitution.1 a vv p h i 1

In the present case, the respondents never raised due process as an issue. But even assuming that they did,
the respondents themselves concede that there is no vested right to public office.17 As the COMELEC correctly
pointed out, too, there is no vested right to an elective post in view of the uncertainty inherent in electoral
exercises.

Aware of this legal reality, the respondents theorized instead that they had a right to be voted upon by the
electorate without being burdened by a law that effectively rendered them ineligible to run for their incumbent
positions. Again, the RTC agreed with this contention.

We do not agree with the RTC, as we find no such right under the Constitution; if at all, this claimed right is
merely a restatement of a claim of vested right to a public office. What the Constitution clearly provides is the
power of Congress to prescribe the qualifications for elective local posts;18 thus, the question of eligibility for an
elective local post is a matter for Congress, not for the courts, to decide. We dealt with a strikingly similar issue
in Montesclaros v. Commission on Elections19 where we ruled that SK membership which was claimed as a
property right within the meaning of the Constitution is a mere statutory right conferred by law. Montesclaros
instructively tells us:

Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer
qualified because of an amendment in the law cannot complain of being deprived of a proprietary right to SK
membership. Only those who qualify as SK members can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting in the SK elections. SK membership is not a property
right protected by the Constitution because it is a mere statutory right conferred by law. Congress may amend
at any time the law to change or even withdraw the statutory right.

A public office is not a property right. As the Constitution expressly states, a "[P]ublic office is a public trust." No
one has a vested right to any public office, much less a vested right to an expectancy of holding a public office.
In Cornejo v. Gabriel, decided in 1920, the Court already ruled:

Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an
office a "property." It is, however, well settled x x x that a public office is not property within the sense of
the constitutional guaranties of due process of law, but is a public trust or agency. x x x The basic idea of
the government x x x is that of a popular representative government, the officers being mere agents and not
rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but
where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the
people he represents.

Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a
proprietary right to public office. While the law makes an SK officer an ex-officio member of a local government
legislative council, the law does not confer on petitioners a proprietary right or even a proprietary expectancy to
sit in local legislative councils. The constitutional principle of a public office as a public trust precludes any
proprietary claim to public office. Even the State policy directing "equal access to opportunities for public
service" cannot bestow on petitioners a proprietary right to SK membership or a proprietary expectancy to ex-
officio public offices.

Moreover, while the State policy is to encourage the youths involvement in public affairs, this policy refers to
those who belong to the class of people defined as the youth. Congress has the power to define who are the
youth qualified to join the SK, which itself is a creation of Congress. Those who do not qualify because they are
past the age group defined as the youth cannot insist on being part of the youth. In government service, once
an employee reaches mandatory retirement age, he cannot invoke any property right to cling to his office. In
the same manner, since petitioners are now past the maximum age for membership in the SK, they cannot
invoke any property right to cling to their SK membership. [Emphasis supplied.]

To recapitulate, we find no merit in the respondents retroactivity arguments because: (1) the challenged
proviso did not provide for the retroactive application to barangay officials of the three-term limit; Section 43(b)
of RA No. 9164 simply continued what had been there before; and (2) the constitutional challenge based on
retroactivity was not anchored on a constitutional standard but on a mere statutory norm.

The Equal Protection Clause Issue

The equal protection guarantee under the Constitution is found under its Section 2, Article III, which provides:
"Nor shall any person be denied the equal protection of the laws." Essentially, the equality guaranteed under
this clause is equality under the same conditions and among persons similarly situated. It is equality among
equals, not similarity of treatment of persons who are different from one another on the basis of substantial
distinctions related to the objective of the law; when things or persons are different in facts or circumstances,
they may be treated differently in law.20
Appreciation of how the constitutional equality provision applies inevitably leads to the conclusion that no basis
exists in the present case for an equal protection challenge. The law can treat barangay officials differently
from other local elective officials because the Constitution itself provides a significant distinction between these
elective officials with respect to length of term and term limitation. The clear distinction, expressed in the
Constitution itself, is that while the Constitution provides for a three-year term and three-term limit for local
elective officials, it left the length of term and the application of the three-term limit or any form of term limitation
for determination by Congress through legislation. Not only does this disparate treatment recognize substantial
distinctions, it recognizes as well that the Constitution itself allows a non-uniform treatment. No equal
protection violation can exist under these conditions.

From another perspective, we see no reason to apply the equal protection clause as a standard because the
challenged proviso did not result in any differential treatment between barangay officials and all other elective
officials. This conclusion proceeds from our ruling on the retroactivity issue that the challenged proviso does
not involve any retroactive application.

Violation of the Constitutional

One Subject- One Title Rule

Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.
Farias v. Executive Secretary21 provides the reasons for this constitutional requirement and the test for its
application, as follows:

The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as
surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating to its
subject finding expression in its title.

To determine whether there has been compliance with the constitutional requirement that the subject of an act
shall be expressed in its title, the Court laid down the rule that

Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly
construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be
expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the title be
comprehensive enough reasonably to include the general object which a statute seeks to effect, without
expressing each and every end and means necessary or convenient for the accomplishing of that object. Mere
details need not be set forth. The title need not be an abstract or index of the Act.

xxxx

x x x This Court has held that an act having a single general subject, indicated in the title, may contain any
number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign
to the general subject, and may be considered in furtherance of such subject by providing for the method and
means of carrying out the general subject.

xxxx

x x x Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced
in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have not received the notice, action and study of the legislators and the
public.
We find, under these settled parameters, that the challenged proviso does not violate the one subject-one title
rule.

First, the title of RA No. 9164, "An Act Providing for


Synchronized Barangay and Sangguniang Kabataang Elections, amending Republic Act No. 7160, as
amended, otherwise known as the Local Government Code of 1991," states the laws general subject matter
the amendment of the LGC to synchronize the barangay and SK elections and for other purposes. To achieve
synchronization of the barangay and SK elections, the reconciliation of the varying lengths of the terms of
office of barangay officials and SK officials is necessary. Closely related with length of term is term limitation
which defines the total number of terms for which a barangay official may run for and hold office. This natural
linkage demonstrates that term limitation is not foreign to the general subject expressed in the title of the law.

Second, the congressional debates we cited above show that the legislators and the public they represent
were fully informed of the purposes, nature and scope of the laws provisions. Term limitation therefore
received the notice, consideration, and action from both the legislators and the public.

Finally, to require the inclusion of term limitation in the title of RA No. 9164 is to make the title an index of all
the subject matters dealt with by law; this is not what the constitutional requirement contemplates.

WHEREFORE, premises considered, we GRANT the petition and accordingly AFFIRM the constitutionality of
the challenged proviso under Section 2, paragraph 2 of Republic Act No. 9164. Costs against the respondents.

SO ORDERED.

ARTURO D. BRION
Associate Justice

G.R. No. 185740 July 23, 2013

THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR JESUS O.


TYPOCO, JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.

DECISION

BRION, J.:

We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on
certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008 of the
Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as the Province
of Camarines Nortes provincial administrator, or to an equivalent position.

Factual Antecedents

Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor
Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999,
Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in writing why no
administrative charges should be filed against her for gross insubordination/gross discourtesy in the course of
official duties, and conduct grossly prejudicial to the best interest of the service; this was later on captioned as
Administrative Case No. 001. After Gonzales submitted her comment, an Ad Hoc Investigation Committee
found her guilty of the charges against her, and recommended to Governor Pimentel that she be held
administratively liable.4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation
Committees recommendation and dismissed Gonzales.5

Proceedings before the Civil Service Commission

Gonzales appealed Governor Pimentels decision to the Civil Service Commission (CSC). The CSC issued
Resolution No. 0014186 modifying Governor Pimentels decision, finding Gonzales guilty of insubordination and
suspending her for six months. This decision was appealed by Governor Pimentel, which the CSC denied in its
Resolution No. 001952.7

Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed
that she had already served her six-month suspension and asked to be reinstated. The CSC issued Resolution
No. 002245,8 which directed Gonzales reinstatement.

Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her
services the next day for lack of confidence. He then wrote a letter9 to the CSC reporting his compliance with
its order, and Gonzales subsequent dismissal as a confidential employee. In his letter, Governor Pimentel
cited Resolution No. 0001158,10 where the CSC ruled that the provincial administrator position is highly
confidential and is coterminous in nature.

The CSC responded through Resolution No. 030008,11 which again directed Gonzales reinstatement as
provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. RA 7160)
made the provincial administrator position coterminous and highly confidential in nature, this conversion cannot
operate to prejudice officials who were already issued permanent appointments as administrators prior to the
new laws effectivity. According to the CSC, Gonzales has acquired a vested right to her permanent
appointment as provincial administrator and is entitled to continue holding this office despite its subsequent
classification as a coterminous position. The conversion of the provincial administrator position from a career to
a non-career service should not jeopardize Gonzales security of tenure guaranteed to her by the Constitution.
As a permanent appointee, Gonzales may only be removed for cause, after due notice and hearing. Loss of
trust and confidence is not among the grounds for a permanent appointees dismissal or discipline under
existing laws.

In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr.,
Camarines Nortes incumbent governor, refused to reinstate her. The CSC responded with Resolution No.
061988,13 which ordered Gonzales reinstatement to the provincial administrator position, or to an equivalent
position.Thus, the petitioner, through Governor Typoco, filed a petition for review before the CA, seeking to
nullify the CSCs Resolution No. 030008 and Resolution No. 061988.

The Appellate Courts Ruling

The CA supported the CSCs ruling that reinstated Gonzales as provincial administrator or to an equivalent
position.14

Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal right to his
position once he assumes a position in the civil service under a completed appointment. This legal right is
protected both by statute and the Constitution, and he cannot be removed from office without cause and
previous notice and hearing. Appointees cannot be removed at the mere will of those vested with the power of
removal, or without any cause.

The CA then enumerated the list of valid causes for a public officers removal under Section 46,16 Book V, Title
I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted that lack of confidence was
not in the list. Thus, the CA concluded that Gonzales dismissal on the ground of loss of confidence violated her
security of tenure, and that she has the right to be reinstated with payment of backwages.
The CA further held that Gonzales dismissal was illegal because it was done without due process. The
proceedings under Administrative Case No. 001 cannot be the basis for complying with the requirements of
due process because they are separate and distinct from the proceedings in the present controversy. Thus,
Gonzales was illegally terminated when she was dismissed for lack of confidence, without any hearing, the day
after she was reinstated.

Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentels decision, has long been
final and executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245,
and hence, it is no longer alterable.

The petitioner sought a reconsideration17 of the CAs Decision, which the CA denied in a Resolution18 dated
December 2, 2008.

The Present Petition

In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has
been converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer
enjoyed security of tenure to the position she held prior to RA 7160s enactment.

In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator remained a
career service position. Section 721 of Presidential Decree No. 807, which was one of the bases of the Court in
Laurel V v. Civil Service Commission22 to declare the provincial administrator as a career service position, is a
verbatim copy of Section 7,23 Chapter 2 of the Administrative Code. This classification, established by law and
jurisprudence, cannot be altered by the mere implementing rules and regulations of RA 7160. And assuming
arguendo that the provincial administrator position has indeed become a primarily confidential position, this
reclassification should not apply retroactively to Gonzales appointment on a permanent capacity prior to RA
7160s effectivity.

Issues

The parties arguments, properly joined, present to us the following issues:

1) Whether Congress has re-classified the provincial administrator position from a career service to a
primarily confidential, non-career service position; and

2) Whether Gonzales has security of tenure over her position as provincial administrator of the Province
of Camarines Norte.

The Courts Ruling

We find the petition meritorious.

Congress has reclassified the provincial administrator position as a primarily confidential, non-career position

We support the CSCs conclusion that the provincial administrator position has been classified into a primarily
confidential, non-career position when Congress, through RA 7160, made substantial changes to it. First, prior
to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial
administrator position among the listing of mandatory provincial officials,24 but empowered the Sangguniang
Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the
provincial government.25 RA 7160 made the position mandatory for every province.26 Thus, the creation of the
provincial administrator position under the old LGC used to be a prerogative of the Sangguniang Panlalawigan.
Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the
qualifications for the provincial administrator position. While Section 48027 of RA 7160 retained the requirement
of civil service eligibility for a provincial administrator, together with the educational requirements, it shortened
the six-year work experience requirement to five years.28 It also mandated the additional requirements of
residence in the local government concerned, and imposed a good moral character requirement.

Third, RA 7160 made the provincial administrator position coterminous with its appointing authority,
reclassifying it as a non-career service position that is primarily confidential.

Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position
which required qualification in an appropriate examination prior to appointment. Laurel placed the provincial
administrator position under the second major level of positions in the career service under Section 7 of
Presidential Decree No. 807. This provision reads:

Section 7. Classes of Positions in the Career Service.

(a) Classes of positions in the career service appointment to which requires examinations shall be grouped into
three major levels as follows:

xxxx

2. The second level shall include professional, technical, and scientific positions which involve professional,
technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college
work up to Division Chief level.

Section 480 of RA 7160 made the provincial administrators functions closely related to the prevailing provincial
administration by identifying the incumbent with the provincial governor to ensure the alignment of the
governors direction for the province with what the provincial administrator would implement. In contrast with
the general direction provided by the provincial governor under the Manual of Position Descriptions cited in
Laurel, Section 480(b) of RA 7160 now mandates constant interaction between the provincial administrator and
the provincial governor, to wit:

(b) The administrator shall take charge of the office of the administrator and shall:

(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may
be, implement the same particularly those which have to do with the management and administration-
related programs and projects which the governor or mayor is empowered to implement and which the
sanggunian is empowered to provide for under this Code;

(2) In addition to the foregoing duties and functions, the administrator shall:

(i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision,
direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and
other officials of the local government unit;

xxxx

(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other
matters relative to the management and administration of the local government unit. [emphases and italics
ours]
As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close intimate
relationship with the office of the governor (its appointing authority) to effectively develop, implement and
administer the different programs of the province. The administrators functions are to recommend to the
Sanggunian and to advise the governor on all matters regarding the management and administration of the
province, thus requiring that its occupant enjoy the governors full trust and confidence.

To emphasize the close relations that the provincial administrators functions have with the office of the
governor, RA 7160 even made the provincial administrator position coterminous with its appointing
authority.30 This provision, along with the interrelations between the provincial administrator and governor
under Section 480, renders clear the intent of Congress to make the provincial administrator position primarily
confidential under the non-career service category of the civil service.

Congress reclassification of the provincial administrator position in RA 7160 is a valid exercise of legislative
power that does not violate Gonzales security of tenure

Having established that Congress has changed the nature of the provincial administrator position to a primarily
confidential employee, the next question to address would be its impact on Gonzales security of tenure.
According to the petitioner, Gonzales lost her security of tenure when the provincial administrator position
became a primarily confidential position. Gonzales, on the other hand, retorted that the conversion of the
position should not be retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC
ruled in favor of the latter, and gave premium to Gonzales original permanent appointment under the old LGC.
They posit that Gonzales acquired a vested legal right over her position from the moment she assumed her
duties as provincial administrator. Thus, she cannot be removed from office except for cause and after due
hearing; otherwise such removal would amount to a violation of her security of tenure.

The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between
the nature of the position and an employees right to hold a position. These two concepts are different. The
nature of a position may change by law according to the dictates of Congress. The right to hold a position, on
the other hand, is a right that enjoys constitutional and statutory guarantee, but may itself change according to
the nature of the position.

Congress has the power and prerogative to introduce substantial changes in the provincial administrator
position and to reclassify it as a primarily confidential, non-career service position. Flowing from the legislative
power to create public offices is the power to abolish and modify them to meet the demands of
society;31 Congress can change the qualifications for and shorten the term of existing statutory offices. When
done in good faith, these acts would not violate a public officers security of tenure, even if they result in his
removal from office or the shortening of his term.32 Modifications in public office, such as changes in
qualifications or shortening of its tenure, are made in good faith so long as they are aimed at the office and not
at the incumbent.33

In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the offices in
the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and
provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were
incumbent board members at the time RA 546 took effect, filed a special civil action for quo warranto against
their replacements, arguing that their term of office under the old law had not yet expired, and neither had they
abandoned or been removed from office for cause. We dismissed their petition, and held that Congress may,
by law, terminate the term of a public office at any time and even while it is occupied by the incumbent. Thus,
whether Dr. Salcedo and Dr. Ignacio were removed for cause or had abandoned their office is immaterial.

More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a permanent
appointee to the Executive Director II position, which was not part of the career executive service at the time of
her appointment. During her incumbency, the CSC, by authority granted under Presidential Decree No. 1,
classified the Executive Director II position to be within the career executive service. Since Dimayuga was not
a career executive service officer, her initially permanent appointment to the position became temporary; thus,
she could be removed from office at any time.

In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but
significantly modified many of its aspects. It is now a primarily confidential position under the non-career
service tranche of the civil service. This change could not have been aimed at prejudicing Gonzales, as she
was not the only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this change was
part of the reform measures that RA 7160 introduced to further empower local governments and decentralize
the delivery of public service. Section 3(b) of RA 7160 provides as one of its operative principles that:

(b) There shall be established in every local government unit an accountable, efficient, and dynamic
organizational structure and operating mechanism that will meet the priority needs and service requirements of
its communities.

Thus, Gonzales permanent appointment as provincial administrator prior to the enactment of RA 7160 is
immaterial to her removal as provincial administrator. For purposes of determining whether Gonzales
termination violated her right to security of tenure, the nature of the position she occupied at the time of her
removal should be considered, and not merely the nature of her appointment at the time she entered
government service.

In echoing the CSC and the CAs conclusion, the dissenting opinion posits the view that security of tenure
protects the permanent appointment of a public officer, despite subsequent changes in the nature of his
position.

Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a permanent
employee remains a permanent employee unless he is validly terminated," and from there attempts to draw an
analogy between Gabriel and the case at hand.

The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue
in Gabriel is whether backwages and other monetary benefits could be awarded to an illegally dismissed
government employee, who was later ordered reinstated. From this sentence alone can be discerned that the
issues involved related to the consequences of illegal dismissal rather than to the dismissal itself. Nowhere in
Gabrielwas there any mention of a change in the nature of the position held by the public officer involved.

Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first, the
public officer in Gabriel received a Memorandum stating that he would be appointed as Transportation District
Supervisor III under their office reorganization. Second, the Court in Gabriel clearly pointed out that the reason
for his eventual appointment as a casual employee, which led to his termination from service, was due to a
pending protest he filed before the CSC indicating that there was no ground for him to not receive the
appointment earlier promised. In contrast, the issue of Gonzales is whether the appointing authoritys lack of
trust and confidence in the appointee was sufficient cause for the termination of employment of a primarily
confidential employee. And third, there was a change in the position held by the public officer in Gabriel. He
was a permanent employee who was extended a different appointment, which was casual in nature, because
of a protest that he earlier filed. In contrast, the current case involves a public officer who held the same
position whose nature changed because of the passage of RA 7160.

The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support its
contention that permanent appointees could expect protection for their tenure and appointments in the event
that the Court determines that the position is actually confidential in nature:

The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various
GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their
tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is
unfounded, however, since the statutes themselves do not classify the position of corporate secretary as
permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as
confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final
determination as to which positions in government are primarily confidential or otherwise. In the light of the
instant controversy, the Court's view is that the greater public interest is served if the position of a corporate
secretary is classified as primarily confidential in nature.38

The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the
quoted portion in Civil Service Commission v. Javier39 actually stands for the proposition that other corporate
secretaries in government-owned and controlled corporations cannot expect protection for their tenure and
appointments upon the reclassification of their position to a primarily confidential position. There, the Court
emphasized that these officers cannot rely on the statutes providing for their permanent appointments, if and
when the Court determines these to be primarily confidential. In the succeeding paragraph after the portion
quoted by the dissent, we even pointed out that there is no vested right to public office, nor is public service a
property right. Thus:

Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that
there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a
public office, as public service is not a property right. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in an office. The rule is
that offices in government, except those created by the constitution, may be abolished, altered, or created
anytime by statute. And any issues on the classification for a position in government may be brought to and
determined by the courts.40 (emphases and italics ours)

Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator position on
a permanent capacity

In extending security of tenure to Gonzales permanent appointment as provincial administrator, the dissenting
opinion cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the
termination of government employees affected by the implementation of RA 7160. According to the dissenting
opinion, EO 503 is an obvious indication of the executive departments intent to protect and uphold both the
national government and the local government employees security of tenure. It cites Section 2(a), paragraph 8
(providing for the tenure of an administrator) to prove its point:

8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as
coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until they
vacate their positions.

At first glance, EO 503 does seem to extend the provincial administrators security of tenure in their permanent
appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the
local government affected by RA 7160s enactment. The title of EO 503 clearly provides for its scope of
application, to wit:

Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and
Assets, Liabilities and Records of National Government Agencies whose Functions are to be Devolved to the
Local Government Units and for other Related Purposes. [underscore, italics and emphases ours]

A reading of EO 503s whereas clauses confirms that it applies only to national government employees whose
functions are to be devolved to local governments:

WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter
referred to as the Code, transfers the responsibility for the delivery of basic services and facilities from the
national government agencies (NGAs) concerned to the local government units (LGUs);
WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the
transfer of the national personnel concerned and assets to ensure continuity in the delivery of such services
and facilities;

WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel
concerned and assets to the LGUs. [underscores, italics and emphases ours]

Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained
earlier, the existence of the provincial administrator position was a prerogative of the Sanggunian
Panlalawigan, and was not even a mandatory public office under the old LGC. It is clearly not a national
government position whose functions are to be devolved to the local governments.

The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government
employees only. According to the dissent, the phrase "and for related purposes" in EO 503s title could
encompass personnel not necessarily employed by national government agencies but by local government
units such as the administrator, the legal officer and the information officer, as enumerated in Section 2(a),
paragraph 8 thereof. This provision, according to the dissent, fills the crucial gap left by RA 7160 which did not
provide whether the term of an incumbent provincial administrator would automatically become coterminous
with that of the appointing authority upon RA 7160s effectivity.

This kind of construction effectively adds to EO 503s object matters that it did not explicitly provide for. The
phrase "and for other related purposes" can only add to EO 503 matters related to the devolution of personnel,
basic services and facilities to local government units. The impact of the change in a local government
positions nature is clearly different from the implementation of devolution and its ancillary effects: the former
involves a change in a local government positions functions and concept of tenure, while the latter involves
(among other things) the transfer of national government employees to local government units. This difference
is highlighted by the fact that EO 503, as reflected by its whereas clauses, was issued to implement Section 17
of RA 7160. In contrast, the change in the nature of the provincial administrator position may be gleaned from
Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for other related
purposes" in EO 503s title be understood to encompass the consequences of the change in the local
government positions nature.

Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city, municipal
and/or provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the Presidents
ordinance powers to provide for rules that are general or permanent in character for the purpose of
implementing the Presidents constitutional or statutory powers.41 Exercising her constitutional duty to ensure
that all laws are faithfully executed, then President Corazon Aquino issued EO 503 to ensure the executives
compliance with paragraph (i), Section 17 of RA 7160, which requires local government units to absorb the
personnel of national agencies whose functions shall be devolved to them.42 This is reflected in EO 503s title
and whereas clauses, and its limited application as discussed earlier.

Thus, the dissenting opinions interpretation would result in the judicial recognition of an act of the Executive
usurping a legislative power. The grant of permanent status to incumbent provincial administrators, despite the
clear language and intent of RA 7160 to make the position coterminous, is an act outside the Presidents
legitimate powers. The power to create, abolish and modify public offices is lodged with Congress.43 The
President cannot, through an Executive Order, grant permanent status to incumbents, when Congress by law
has declared that the positions they occupy are now confidential. Such act would amount to the Presidents
amendment of an act of Congress an act that the Constitution prohibits. Allowing this kind of interpretation
violates the separation of powers, a constitutionally enshrined principle that the Court has the duty to uphold.44

The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys the legal
presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal presumption of its
validity stands. The EOs validity, however, is not in question in the present case. What is at issue is a proper
interpretation of its application giving due respect to the principle of separation of powers, and the dissenting
opinions interpretation does violence to this principle.

Gonzales has security of tenure, but only as a primarily confidential employee

To be sure, both career and non-career service employees have a right to security of tenure.1wphi1 All
permanent officers and employees in the civil service, regardless of whether they belong to the career or non-
career service category, are entitled to this guaranty; they cannot be removed from office except for cause
provided by law and after procedural due process.45 The concept of security of tenure, however, labors under a
variation for primarily confidential employees due to the basic concept of a "primarily confidential" position.
Serving at the confidence of the appointing authority, the primarily confidential employees term of office
expires when the appointing authority loses trust in the employee. When this happens, the confidential
employee is not "removed" or "dismissed" from office; his term merely "expires" 46 and the loss of trust and
confidence is the "just cause" provided by law that results in the termination of employment. In the present
case where the trust and confidence has been irretrievably eroded, we cannot fault Governor Pimentels
exercise of discretion when he decided that he could no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall not be suspended or
dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right
to public office despite a change in the nature of the office held. In other words, the CSC might have been
legally correct when it ruled that the petitioner violated Gonzales right to security of tenure when she was
removed without sufficient just cause from her position, but the situation had since then been changed. In fact,
Gonzales was reinstated as ordered, but her services were subsequently terminated under the law prevailing
at the time of the termination of her service; i.e., she was then already occupying a position that was primarily
confidential and had to be dismissed because she no longer enjoyed the trust and confidence of the appointing
authority. Thus, Gonzales termination for lack of confidence was lawful. She could no longer be reinstated as
provincial administrator of Camarines Norte or to any other comparable position. This conclusion, however, is
without prejudice to Gonzales entitlement to retirement benefits, leave credits, and future employment in
government service.

WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the
Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CAG.R.
SP No. 97425.

SO ORDERED.

ARTURO D. BRION
Associate Justice

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 164185


Petitioner,
Present:

QUISUMBING, J., Chairperson,


YNARES-SANTIAGO,*
- versus - CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
THE SANDIGANBAYAN (FOURTH DIVISION) Promulgated:
and ALEJANDRO A. VILLAPANDO,
Respondents. July 23, 2008

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

DECISION

QUISUMBING, J.:

This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special
Prosecutor assails the May 20, 2004 Decision[1] of the Sandiganbayan, Fourth Division, in Criminal Case No.
27465, granting private respondent Alejandro A. Villapandos Demurrer to Evidence[2] and acquitting him of the
crime of unlawful appointment under Article 244[3] of the Revised Penal Code.

The facts culled from the records are as follows:

During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San
Vicente, Palawan. Orlando M. Tiape (now deceased), a relative of Villapandos wife, ran for Municipal Mayor of
Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, on July 1, 1998, Villapando
designated Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.[4] A Contract of
Consultancy[5] dated February 8, 1999 was executed between the Municipality of San Vicente, Palawan and
Tiape whereby the former employed the services of Tiape as Municipal Administrative and Development
Planning Consultant in the Office of the Municipal Mayor for a period of six months from January 1, 1999 to
June 30, 1999 for a monthly salary of P26,953.80.

On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for
violation of Article 244 of the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon.
[6]
The complaint was resolved against Villapando and Tiape and the following Information [7] dated March 19,
2002 charging the two with violation of Article 244 of the Revised Penal Code was filed with the
Sandiganbayan:

xxxx

That on or about 01 July 1998 or sometime prior or subsequent thereto, in


San Vicente, Palawan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public
officer, being then the Municipal Mayor of San Vicente, Palawan, committing the
crime herein charged, in relation to and taking advantage of his official functions,
conspiring and confederating with accused Orlando M. Tiape, did then and there
wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal
Administrator of San Vicente, Palawan, accused Alejandro A. Villapando knowing
fully well that Orlando Tiape lacks the qualification as he is a losing mayoralty
candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998
elections, hence is ineligible for appointment to a public office within one year (1)
from the date of the elections, to the damage and prejudice of the government
and of public interest.

CONTRARY TO LAW.[8]

The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the
Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against
Tiape was dismissed after the prosecution proved his death which occurred on July 26, 2000.[9]

After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence.The
Sandiganbayan, Fourth Division denied his motion but gave him five days within which to inform the court in
writing whether he will nonetheless submit his Demurrer to Evidence for resolution without leave of court.
[10]
Villapando then filed a Manifestation of Intent to File Demurrer to Evidence, [11] and was given 15 days from
receipt to file his Demurrer to Evidence. He filed his Demurrer to Evidence[12] on October 28, 2003.

In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapandos Demurrer to
Evidence meritorious, as follows:

The Court found the Demurrer to Evidence impressed with merit.

Article 244 of the Revised Penal Code provides:

Article 244. Unlawful appointments.Any public officer who shall knowingly


nominate or appoint to any public office any person lacking the legal
qualificationstherefor, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos. (underscoring supplied)

A dissection of the above-cited provision [yields] the following elements, to wit:

1. the offender was a public officer;


2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
4. the offender knew that his nominee or appointee did not have the legal
qualifications at the time he made the nomination or appointment.

Afore-cited elements are hereunder discussed.

1. Mayor Villapando was the duly elected Municipal Mayor of San


Vicente, Palawan when the alleged crime was committed.

2. Accused appointed Orlando Tiape as Municipal Administrator of


the Municipality of San Vicente, Palawan.

3. There appears to be a dispute. This Court is now called upon to determine whether
Orlando Tiape, at the time of [his] designation as Municipal Administrator, was lacking in legal
qualification.Stated differently, does legal qualification contemplate the one (1) year prohibition
on appointment as provided for in Sec. 6, Art. IX-B of the Constitution and Sec. 94 (b) of the
Local Government Code, mandating that a candidate who lost in any election shall not, within
one year after such election, be appointed to any office in the Government?

The Court answers in the negative.

In ascertaining the legal qualifications of a particular appointee to a public office, there


must be a law providing for the qualifications of a person to be nominated or appointed
therein. To illuminate further, Justice Rodolfo Palattao succinctly discussed in his book that the
qualification of a public officer to hold a particular position in the government is provided for by
law, which may refer to educational attainment, civil service eligibility or experience:

As the title suggests, the offender in this article is a public officer who
nominates or appoints a person to a public office. The person nominated or
appointed is not qualified and his lack of qualification is known to the party
making the nomination or appointment. The qualification of a public officer to hold
a particular position in the government is provided by law. The purpose of the law
is to ensure that the person appointed is competent to perform the duties of the
office, thereby promoting efficiency in rendering public service.

The qualification to hold public office may refer to educational attainment,


civil service eligibility or experience. For instance, for one to be appointed as
judge, he must be a lawyer. So if the Judicial and Bar Council nominates a
person for appointment as judge knowing him to be not a member of the
Philippine Bar, such act constitutes a violation of the law under consideration.

In this case, Orlando Tiape was allegedly appointed to the position of Municipal
Administrator.As such, the law that provides for the legal qualification for the position of
municipal administrator is Section 480, Article X of the Local Government Code, to wit:

Section 480. Qualifications, Terms, Powers and Duties.(a) No person


shall be appointed administrator unless he is a citizen of the Philippines, a
resident of the local government unit concerned, of good moral character, a
holder of a college degree preferably in public administration, law, or any other
related course from a recognized college or university, and a first grade civil
service eligible or its equivalent. He must have acquired experience in
management and administration work for at least five (5) years in the case of the
provincial or city administrator, and three (3) years in the case of the municipal
administrator.

xxx xxx xxx.

It is noteworthy to mention that the prosecution did not allege much less prove that
Mayor Villapandos appointee, Orlando Tiape, lacked any of the qualifications imposed by law on
the position of Municipal Administrator. Prosecutions argument rested on the assertion that
since Tiape lost in the May 11, 1998 election, he necessarily lacked the required legal
qualifications.

It bears stressing that temporary prohibition is not synonymous with absence or lack of
legal qualification. A person who possessed the required legal qualifications for a position may
be temporarily disqualified for appointment to a public position by reason of the one year
prohibition imposed on losing candidates. Upon the other hand, one may not be temporarily
disqualified for appointment, but could not be appointed as he lacked any or all of the required
legal qualifications imposed by law.

4. Anent the last element, this Court deems it unnecessary to discuss the same.

WHEREFORE, finding the Demurrer to Evidence filed by Mayor Villapando with merit,
the same is hereby GRANTED. Mayor Villapando is hereby ACQUITTED of the crime charged.

SO ORDERED.[13]

Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor,
representing the People of the Philippines.

Villapando was required by this Court to file his comment to the petition. Despite several notices,
however, he failed to do so and in a Resolution [14] dated June 7, 2006, this Court informed him that he is
deemed to have waived the filing of his comment and the case shall be resolved on the basis of the pleadings
submitted by the petitioner.

Petitioner raises the following issues:


I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION


AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN INTERPRETING THAT THE
LEGAL DISQUALIFICATION IN ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT
INCLUDE THE ONE YEAR PROHIBITION IMPOSED ON LOSING CANDIDATES AS
ENUNCIATED IN THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE.

II.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION


AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN GIVING DUE COURSE TO,
AND EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.[15]

Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.

Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion
amounting to lack or excess of jurisdiction because its interpretation of Article 244 of the Revised Penal Code
does not complement the provision on the one-year prohibition found in the 1987 Constitution and the Local
Government Code, particularly Section 6, Article IX of the 1987 Constitution which states no candidate who
has lost in any election shall, within one year after such election, be appointed to any office in the
government or any government-owned or controlled corporation or in any of their subsidiaries. Section 94(b) of
the Local Government Code of 1991, for its part, states that except for losing candidates in barangay elections,
no candidate who lost in any election shall, within one year after such election, be appointed to any office in the
government or any government-owned or controlled corporation or in any of their subsidiaries. Petitioner
argues that the court erred when it ruled that temporary prohibition is not synonymous with the absence of lack
of legal qualification.

The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it
may well be that one who possesses the required legal qualification for a position may be temporarily
disqualified for appointment to a public position by reason of the one-year prohibition imposed on losing
candidates. However, there is no violation of Article 244 of the Revised Penal Code should a person suffering
from temporary disqualification be appointed so long as the appointee possesses all the qualifications stated in
the law.

There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article
244 of the Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the
1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within
one year after such election to be appointed to any office in the government or any government-owned or
controlled corporations or in any of their subsidiaries.

Article 244 of the Revised Penal Code states:

Art. 244. Unlawful appointments. Any public officer who shall knowingly nominate or
appoint to any public office any person lacking the legal qualifications therefore, shall suffer the
penalty of arresto mayor and a fine not exceeding 1,000 pesos.

Section 94 of the Local Government Code provides:

SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who
Lost in Election. - (a) No elective or appointive local official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no elective
or appointive local official shall hold any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.

(b) Except for losing candidates in barangay elections, no candidate who lost in any
election shall, within one (1) year after such election, be appointed to any office in the
government or any government-owned or controlled corporations or in any of their subsidiaries.

Section 6, Article IX-B of the 1987 Constitution states:


Section 6. No candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the Government or any Government-owned or controlled
corporations or in any of their subsidiaries.

Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of the term legal
disqualification lack cogency. Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal
disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the legal
prohibitions under Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government
Code of 1991.

Although this Court held in the case of People v. Sandiganbayan[16] that once a court grants the
demurrer to evidence, such order amounts to an acquittal and any further prosecution of the accused would
violate the constitutional proscription on double jeopardy, this Court held in the same case that such ruling on
the matter shall not be disturbed in the absence of a grave abuse of discretion.

Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as
to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion
and hostility.[17]

In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction,
acted with grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the
Revised Penal Code defies legal cogency. Legal disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal prohibitions under the 1987 Constitution and the Local
Government Code of 1991. We reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus.
Basic is the rule in statutory construction that where the law does not distinguish, the courts should not
distinguish. There should be no distinction in the application of a law where none is indicated.

Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File Demurrer to
Evidence yet accommodated Villapando by giving him five days within which to inform it in writing whether he will
submit his demurrer to evidence for resolution without leave of court.

Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not
exist in legal contemplation and, thus, cannot be the source of an acquittal.[18]

The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the
basic rules of statutory construction resulting in its decision granting VillapandosDemurrer to Evidence and
acquitting the latter, we can do no less but declare its decision null and void.
WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan,
Fourth Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos Demurrer to
Evidence and acquitting him of the crime of unlawful appointment under Article 244 of the Revised Penal Code
is hereby declared NULL and VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth
Division, for further proceedings.

SO ORDERED.
ARLIN B. OBIASCA, [1] G.R. No. 176707
Petitioner,
Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- v e r s u s - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ and
MENDOZA, JJ.
JEANE O. BASALLOTE,
Respondent.
Promulgated:

February 17, 2010

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

DECISION
CORONA, J.:

When the law is clear, there is no other recourse but to apply it regardless of its perceived
harshness. Dura lex sed lex. Nonetheless, the law should never be applied or interpreted to oppress one in
order to favor another. As a court of law and of justice, this Court has the duty to adjudicate conflicting claims
based not only on the cold provision of the law but also according to the higher principles of right and justice.
The facts of this case are undisputed.

On May 26, 2003, City Schools Division Superintendent Nelly B. Beloso appointed respondent Jeane O.
Basallote to the position of Administrative Officer II, Item No. OSEC-DECSB-ADO2-390030-1998, of the
Department of Education (DepEd), Tabaco National High School in Albay.[2]

Subsequently, in a letter dated June 4, 2003, [3] the new City Schools Division Superintendent, Ma. Amy O.
Oyardo, advised School Principal Dr. Leticia B. Gonzales that the papers of the applicants for the position of
Administrative Officer II of the school, including those of respondent, were
being returned and that a school ranking should be
accomplished and submitted to her office for review. In addition, Gonzales was advised that only qualified
applicants should be endorsed.

Respondent assumed the office of Administrative Officer II on June 19, 2003. Thereafter, however, she
received a letter from Ma. Teresa U. Diaz, Human Resource Management Officer I of the City Schools Division
of Tabaco City, Albay, informing her that her appointment could not be forwarded to the Civil Service
Commission (CSC) because of her failure to submit the position description form (PDF) duly signed by
Gonzales.

Respondent tried to obtain Gozales signature but the latter refused despite repeated requests. When
respondent informed Oyardo of the situation, she was instead advised to return to her former teaching position
of Teacher I. Respondent followed the advice.

Meanwhile, on August 25, 2003, Oyardo appointed petitioner Arlin B. Obiasca to the same position of
Administrative Officer II. The appointment was sent to and was properly attested by the CSC. [4]Upon learning
this, respondent filed a complaint with the Office of the Deputy Ombudsman for Luzon against Oyardo,
Gonzales and Diaz.

In its decision, the Ombudsman found Oyardo and Gonzales administratively liable for withholding information
from respondent on the status of her appointment, and suspended them from the service for three months.
Diaz was absolved of any wrongdoing.[5]

Respondent also filed a protest with CSC Regional Office V. But the protest was dismissed on the ground that
it should first be submitted to the Grievance Committee of the DepEd for appropriate action.[6]

On motion for reconsideration, the protest was reinstated but was eventually dismissed for lack of merit.
[7]
Respondent appealed the dismissal of her protest to the CSC Regional Office which, however, dismissed the
appeal for failure to show that her appointment had been received and attested by the CSC.[8]

Respondent elevated the matter to the CSC. In its November 29, 2005 resolution, the CSC granted the appeal,
approved respondents appointment and recalled the approval of petitioners appointment.[9]
Aggrieved, petitioner filed a petition for certiorari in the Court of Appeals (CA) claiming that the CSC acted
without factual and legal bases in recalling his appointment. He also prayed for the issuance of a temporary
restraining order and a writ of preliminary injunction.

In its September 26, 2006 decision,[10] the CA denied the petition and upheld respondents appointment which
was deemed effective immediately upon its issuance by the appointing authority on May 26, 2003. This was
because respondent had accepted the appointment upon her assumption of the duties and responsibilities of
the position.

The CA found that respondent possessed all the qualifications and none of the disqualifications for the position
of Administrative Officer II; that due to the respondents valid appointment, no other appointment to the same
position could be made without the position being first vacated; that the petitioners appointment to the position
was thus void; and that, contrary to the argument of petitioner that he had been deprived of his right to due
process when he was not allowed to participate in the proceedings in the CSC, it was petitioner who failed to
exercise his right by failing to submit a single pleading despite being furnished with copies of the pleadings in
the proceedings in the CSC.

The CA opined that Diaz unreasonably refused to affix her signature on respondents PDF and to submit
respondents appointment to the CSC on the ground of non-submission of respondents PDF. The CA ruled that
the PDF was not even required to be submitted and forwarded to the CSC.

Petitioner filed a motion for reconsideration but his motion was denied on February 8, 2007.[11]

Hence, this petition.[12]

Petitioner maintains that respondent was not validly appointed to the position of Administrative Officer II
because her appointment was never attested by the CSC. According to petitioner, without the CSC attestation,
respondents appointment as Administrative Officer II was never completed and never vested her a permanent
title. As such, respondents appointment could still be recalled or withdrawn by the appointing authority.
Petitioner further argues that, under the Omnibus Rules Implementing Book V of Executive Order (EO) No.
292,[13] every appointment is required to be submitted to the CSC within 30 days from the date of issuance;
otherwise, the appointment becomes ineffective.[14] Thus, respondents appointment issued on May 23, 2003
should have been transmitted to the CSC not later than June 22, 2003 for proper attestation. However,
because respondents appointment was not sent to the CSC within the proper period, her appointment ceased
to be effective and the position of Administrative Officer II was already vacant when petitioner was appointed to
it.

In her comment,[15] respondent points out that her appointment was wrongfully not submitted by the proper
persons to the CSC for attestation. The reason given by Oyardo for the non-submission of respondents
appointment papers to the CSC the alleged failure of respondent to have her PDF duly signed by Gonzales
was not a valid reason because the PDF was not even required for the attestation of respondents appointment
by the CSC.

After due consideration of the respective arguments of the parties, we deny the petition.
The law on the matter is clear. The problem is petitioners insistence that the law be applied in a manner
that is unjust and unreasonable.

Petitioner relies on an overly restrictive reading of Section 9(h) of PD 807 [16] which states, in part, that
an appointment must be submitted by the appointing authority to the CSC within 30 days from issuance,
otherwise, the appointment becomes ineffective:

Sec. 9. Powers and Functions of the Commission. The [CSC] shall administer the Civil
Service and shall have the following powers and functions:

xxx xxx xxx

(h) Approve all appointments, whether original or promotional, to positions in the civil
service, except those of presidential appointees, members of the Armed Forces of the
Philippines, police forces, firemen and jailguards, and disapprove those where the appointees
do not possess the appropriate eligibility or required qualifications. An appointment shall take
effect immediately upon issue by the appointing authority if the appointee assumes his duties
immediately and shall remain effective until it is disapproved by the [CSC], if this should take
place, without prejudice to the liability of the appointing authority for appointments issued in
violation of existing laws or rules: Provided, finally, That the [CSC] shall keep a record of
appointments of all officers and employees in the civil service. All appointments requiring the
approval of the [CSC] as herein provided, shall be submitted to it by the appointing
authority within thirty days from issuance, otherwise the appointment becomes
ineffective thirty days thereafter. (Emphasis supplied)

This provision is implemented in Section 11, Rule V of the Omnibus Rules Implementing Book V of EO
292 (Omnibus Rules):

Section 11. An appointment not submitted to the [CSC] within thirty (30) days from the
date of issuance which shall be the date appearing on the fact of the appointment, shall be
ineffective. xxx

Based on the foregoing provisions, petitioner argues that respondents appointment became effective
on the day of her appointment but it subsequently ceased to be so when the appointing authority did not
submit her appointment to the CSC for attestation within 30 days.

Petitioner is wrong.

The real issue in this case is whether the deliberate failure of the appointing authority (or other
responsible officials) to submit respondents appointment paper to the CSC within 30 days from its issuance
made her appointment ineffective and incomplete. Substantial reasons dictate that it did not.

Before discussing this issue, however, it must be brought to mind that CSC resolution dated November
29, 2005 recalling petitioners appointment and approving that of respondent has long become final and
executory.
REMEDY TO ASSAIL CSC DECISION
OR RESOLUTION

Sections 16 and 18, Rule VI of the Omnibus Rules provide the proper remedy to assail a CSC decision
or resolution:

Section 16. An employee who is still not satisfied with the decision of the [Merit System
Protection Board] may appeal to the [CSC] within fifteen days from receipt of the decision.

The decision of the [CSC] is final and executory if no petition for reconsideration
is filed within fifteen days from receipt thereof.

xxx xxx xxx

Section 18. Failure to file a protest, appeal, petition for reconsideration or petition for
review within the prescribed period shall be deemed a waiver of such right and shall
render the subject action/decision final and executory. (Emphasis supplied)

In this case, petitioner did not file a petition for reconsideration of the CSC resolution dated November
29, 2005 before filing a petition for review in the CA. Such fatal procedural lapse on petitioners part allowed the
CSC resolution dated November 29, 2005 to become final and executory.[17] Hence, for all intents and
purposes, the CSC resolution dated November 29, 2005 has become immutable and can no longer be
amended or modified.[18] A final and definitive judgment can no longer be changed, revised, amended or
reversed.[19] Thus, in praying for the reversal of the assailed Court of Appeals decision which affirmed the final
and executory CSC resolution dated November 29, 2005, petitioner would want the Court to reverse a final and
executory judgment and disregard the doctrine of immutability of final judgments.

True, a dissatisfied employee of the civil service is not preempted from availing of remedies other than
those provided in Section 18 of the Omnibus Rules. This is precisely the purpose of Rule 43 of the Rules of
Court, which provides for the filing of a petition for review as a remedy to challenge the decisions of the CSC.

While Section 18 of the Omnibus Rules does not supplant the mode of appeal under Rule 43, we
cannot disregard Section 16 of the Omnibus Rules, which requires that a petition for reconsideration should be
filed, otherwise, the CSC decision will become final and executory, viz.:

The decision of the [CSC] is final and executory if no petition for reconsideration
is filed within fifteen days from receipt thereof.

Note that the foregoing provision is a specific remedy as against CSC decisions involving
itsadministrative function, that is, on matters involving appointments, whether original or promotional, to
positions in the civil service,[20] as opposed to its quasi-judicial function where it adjudicates the rights of
persons before it, in accordance with the standards laid down by the law.[21]
The doctrine of exhaustion of administrative remedies requires that, for reasons of law, comity and
convenience, where the enabling statute indicates a procedure for administrative review and provides a system
of administrative appeal or reconsideration, the courts will not entertain a case unless the available
administrative remedies have been resorted to and the appropriate authorities have been given an opportunity
to act and correct the errors committed in the administrative forum. [22] In Orosa v. Roa,[23] the Court ruled that if
an appeal or remedy obtains or is available within the administrative machinery, this should be resorted to
before resort can be made to the courts.[24]While the doctrine of exhaustion of administrative remedies is
subject to certain exceptions,[25] these are not present in this case.

Thus, absent any definitive ruling that the second paragraph of Section 16 is not mandatory and the
filing of a petition for reconsideration may be dispensed with, then the Court must adhere to the dictates of
Section 16 of the Omnibus Rules.

Moreover, even in its substantive aspect, the petition is bereft of merit.

SECTION 9(H) OF PD 807 ALREADY AMENDED BY SECTION


12 BOOK V OF
EO 292

It is incorrect to interpret Section 9(h) of Presidential Decree (PD) 807 as requiring that an appointment
must be submitted by the appointing authority to the CSC within 30 days from issuance, otherwise, the
appointment would become ineffective. Such interpretation fails to appreciate the relevant part of Section 9(h)
which states that an appointment shall take effect immediately upon issue by the appointing authority if
the appointee assumes his duties immediately and shall remain effective until it is disapproved by the
[CSC]. This provision is reinforced by Section 1, Rule IV of the Revised Omnibus Rules on Appointments and
Other Personnel Actions, which reads:

Section 1. An appointment issued in accordance with pertinent laws and rules


shall take effect immediately upon its issuance by the appointing authority, and if the
appointee has assumed the duties of the position, he shall be entitled to receive his salary at
once without awaiting the approval of his appointment by the Commission. The appointment
shall remain effective until disapproved by the Commission. x x x (Emphasis supplied)

More importantly, Section 12, Book V of EO 292 amended Section 9(h) of PD 807 by deleting the
requirement that all appointments subject to CSC approval be submitted to it within 30 days. Section 12 of EO
292 provides:

Sec. 12. Powers and Functions. - The Commission shall have the following powers and
functions:

xxx xxx xxx

(14) Take appropriate action on all appointments and other personnel matters in the Civil
Service, including extension of Service beyond retirement age;
(15) Inspect and audit the personnel actions and programs of the departments, agencies,
bureaus, offices, local government units and other instrumentalities of the government including
government -owned or controlled corporations; conduct periodic review of the decisions and
actions of offices or officials to whom authority has been delegated by the Commission as well
as the conduct of the officials and the employees in these offices and apply appropriate
sanctions whenever necessary.

As a rule, an amendment by the deletion of certain words or phrases indicates an intention to change
its meaning.[26] It is presumed that the deletion would not have been made had there been no intention to effect
a change in the meaning of the law or rule. [27] The word, phrase or sentence excised should accordingly be
considered inoperative.[28]

The dissent refuses to recognize the amendment of Section 9(h) of PD 807 by EO 292 but rather finds
the requirement of submission of appointments within 30 days not inconsistent with the authority of the CSC to
take appropriate action on all appointments and other personnel matters. However, the intention to amend by
deletion is unmistakable not only in the operational meaning of EO 292 but in its legislative history as well.

PD 807 and EO 292 are not inconsistent insofar as they require CSC action on appointments to the civil
service. This is evident from the recognition accorded by EO 292, specifically under Section 12 (14) and (15)
thereof, to the involvement of the CSC in all personnel actions and programs of the government. However,
while a restrictive period of 30 days within which appointments must be submitted to the CSC is imposed under
the last sentence of Section 9(h) of PD 807, none was adopted by Section 12 (14) and (15) of EO 292. Rather,
provisions subsequent to Section 12 merely state that the CSC (and its liaison staff in various departments and
agencies) shall periodically monitor, inspect and audit personnel actions. [29] Moreover, under Section 9(h) of
PD 807, appointments not submitted within 30 days to the CSC become ineffective, no such specific adverse
effect is contemplated under Section 12 (14) and (15) of EO 292. Certainly, the two provisions are materially
inconsistent with each other. And to insist on reconciling them by restoring the restrictive period and punitive
effect of Section 9(h) of PD 807, which EO 292 deliberately discarded, would be to rewrite the law by mere
judicial interpretation.[30]

Not even the historical development of civil service laws can justify the retention of such restrictive
provisions. Public Law No. 5,[31] the law formally establishing a civil service system, merely directed that all
heads of offices notify the Philippine Civil Service Board in writing without delay of all appointments x x x made
in the classified service.[32] The Revised Administrative Code of 1917 was even less stringent as approval by
the Director of the Civil Service of appointments of temporary and emergency employees was required only
when practicable. Finally, Republic Act (RA) 2260 [33] imposed no period within which appointments were
attested to by local government treasurers to whom the CSC delegated its authority to act on personnel actions
but provided that if within 180 days after receipt of said appointments, the CSC shall not have made any
correction or revision, then such appointments shall be deemed to have been properly made. Consequently, it
was only under PD 807 that submission of appointments for approval by the CSC was subjected to a 30-day
period. That, however, has been lifted and abandoned by EO 292.

There being no requirement in EO 292 that appointments should be submitted to the CSC for
attestation within 30 days from issuance, it is doubtful by what authority the CSC imposed such condition under
Section 11, Rule V of the Omnibus Rules. It certainly cannot restore what EO 292 itself already and
deliberately removed. At the very least, that requirement cannot be used as basis to unjustly prejudice
respondent.
Under the facts obtaining in this case, respondent promptly assumed her duties as Administrative
Officer II when her appointment was issued by the appointing authority. Thus, her appointment took effect
immediately and remained effective until disapproved by the CSC.[34]Respondents appointment was never
disapproved by the CSC. In fact, the CSC was deprived of the opportunity to act promptly as it was wrongly
prevented from doing so. More importantly, the CSC subsequently approved respondents
appointment and recalled that of petitioner, which recall has already become final and immutable.

Second, it is undisputed that respondents appointment was not submitted to the CSC, not through her
own fault but because of Human Resource Management Officer I Ma. Teresa U. Diazs unjustified refusal to
sign it on the feigned and fallacious ground that respondents position description form had not been duly
signed by School Principal Dr. Leticia B. Gonzales.[35] Indeed, the CSC even sanctioned Diaz for her failure to
act in the required manner.[36] Similarly, the Ombudsman found both City Schools Division Superintendent Ma.
Amy O. Oyardo and Gonzales administratively liable and suspended them for three months for willfully
withholding information from respondent on the status of her appointment.

xxx xxx xxx

All along, [respondent] was made to believe that her appointment was in order. During
the same period, respondent Gonzales, with respondent Oyardos knowledge, indifferently
allowed [respondent] to plea for the signing of her [position description form], when they could
have easily apprised [respondent] about the revocation/withdrawal of her appointment. Worse,
when [respondent] informed Oyardo on 25 June 2003 about her assumption of office as
[Administrative Officer II], the latter directed [respondent] to go back to her post as Teacher I on
the ground that [respondent] had not been issued an attested appointment as [Administrative
Officer II], even when [Oyardo] knew very well that [respondents] appointment could not be
processed with the CSC because of her order to re-evaluate the applicants. This act by
[Oyardo] is a mockery of the trust reposed upon her by [respondent], who, then in the state of
quandary, specifically sought [Oyardos] advice on what to do with her appointment, in the belief
that her superior could enlighten her on the matter.

It was only on 02 July 2003 when [Gonzales], in her letter, first made reference to a re-
ranking of the applicants when [respondent] learned about the recall by [Oyardo] of her
appointment. At that time, the thirty-day period within which to submit her appointment to the
CSC has lapsed. [Oyardos] and Gonzales act of withholding information about the real status of
[respondents] appointment unjustly deprived her of pursuing whatever legal remedies available
to her at that time to protect her interest.[37]

Considering these willful and deliberate acts of the co-conspirators Diaz, Oyardo and Gonzales that
caused undue prejudice to respondent, the Court cannot look the other way and make respondent suffer the
malicious consequences of Gonzaless and Oyardos malfeasance. Otherwise, the Court would be recognizing
a result that is unconscionable and unjust by effectively validating the following inequities: respondent, who
was vigilantly following up her appointment paper, was left to hang and dry; to add insult to injury, not long after
Oyardo advised her to return to her teaching position, she (Oyardo) appointed petitioner in respondents stead.

The obvious misgiving that comes to mind is why Gonzales and Oyardo were able to promptly process
petitioners appointment and transmit the same to the CSC for attestation when they could not do so for
respondent. There is no doubt that office politics was moving behind the scenes.
In effect, Gonzales and Oyardos scheming and plotting unduly deprived respondent of the professional
advancement she deserved. While public office is not property to which one may acquire a vested right, it is
nevertheless a protected right.[38]

It cannot be overemphasized that respondents appointment became effective upon its issuance by the
appointing authority and it remained effective until disapproved by the CSC (if at all it ever was). Disregarding
this rule and putting undue importance on the provision requiring the submission of the appointment to the
CSC within 30 days will reward wrongdoing in the appointment process of public officials and employees. It will
open the door for scheming officials to block the completion and implementation of an appointment and render
it ineffective by the simple expedient of not submitting the appointment paper to the CSC. As indubitably shown
in this case, even respondents vigilance could not guard against the malice and grave abuse of discretion of
her superiors.

There is no dispute that the approval of the CSC is a legal requirement to complete the appointment.
Under settled jurisprudence, the appointee acquires a vested legal right to the position or office pursuant to this
completed appointment.[39] Respondents appointment was in fact already approved by the CSC with finality.

The purpose of the requirement to submit the appointment to the CSC is for the latter to approve or
disapprove such appointment depending on whether the appointee possesses the appropriate eligibility or
required qualifications and whether the laws and rules pertinent to the process of appointment have been
followed.[40] With this in mind, respondents appointment should all the more be deemed valid.

Respondents papers were in order. What was sought from her (the position description form duly
signed by Gonzales) was not even a prerequisite before her appointment papers could be forwarded to the
CSC. More significantly, respondent was qualified for the position. Thus, as stated by the CA:

The evidence also reveals compliance with the procedures that should be observed in
the selection process for the vacant position of Administrative Officer II and the issuance of the
appointment to the respondent: the vacancy for the said position was published on February 28,
2003; the Personnel Selection Board of Dep-Ed Division of Tabaco City conducted a screening
of the applicants, which included the respondent and the petitioner; the respondents
qualifications met the minimum qualifications for the position of Administrative Officer II provided
by the CSC. She therefore qualified for permanent appointment.[41]

There is no doubt that, had the appointing authority only submitted respondents appointment to the
CSC within the said 30 days from its issuance, the CSC would (and could ) have approved it. In fact, when the
CSC was later apprised of respondents prior appointment when she protested petitioners subsequent
appointment, it was respondents appointment which the CSC approved. Petitioners appointment was recalled.
These points were never rebutted as petitioner gave undue emphasis to the non-attestation by the CSC of
respondents appointment, without any regard for the fact that the CSC actually approved respondents
appointment.

Third, the Court is urged to overlook the injustice done to respondent by citing Favis v.
Rupisan[42] and Tomali v. Civil Service Commission.[43]

However, reliance on Favis is misplaced. In Favis, the issue pertains to the necessity of the CSC
approval, not the submission of the appointment to the CSC within 30 days from issuance. Moreover,
unlike Favis where there was an apparent lack of effort to procure the approval of the CSC, respondent in this
case was resolute in following up her appointment papers. Thus, despite Favis having assumed the
responsibilities of PVTA Assistant General Manager for almost two years, the Court affirmed her removal,
ruling that:
The tolerance, acquiescence or mistake of the proper officials, resulting in the non-
observance of the pertinent rules on the matter does not render the legal requirement, on the
necessity of approval by the Commissioner of Civil Service of appointments, ineffective
and unenforceable.[44] (Emphasis supplied)

Taken in its entirety, this case shows that the lack of CSC approval was not due to any
negligence on respondents part. Neither was it due to the tolerance, acquiescence or mistake of the
proper officials. Rather, the underhanded machinations of Gonzales and Oyardo, as well as the
gullibility of Diaz, were the major reasons why respondents appointment was not even forwarded to
the CSC.

Tomali, likewise, is not applicable. The facts are completely different. In Tomali, petitioner Tomalis
appointment was not approved by the CSC due to the belated transmittal thereof to the latter.The Court,
citing Favis, ruled that the appointees failure to secure the CSCs approval within the 30-day period rendered
her appointment ineffective. It quoted the Merit Systems Protection Boards finding that there is no showing that
the non-submission was motivated by bad faith, spite, malice or at least attributed to the fault of the newly
installed [Office of Muslim Affairs] Executive Director. The Court observed:

Petitioner herself would not appear to be all that blameless. She assumed the position four
months after her appointment was issued or months after that appointment had already lapsed
or had become ineffective by operation of law. Petitioner's appointment was issued on 01 July
1990, but it was only on 31 May 1991 that it was submitted to the CSC, a fact which she knew,
should have known or should have at least verified considering the relatively long interval of
time between the date of her appointment and the date of her assumption to office.[45]

The Court also found that [t]here (was) nothing on record to convince us that the new OMA Director
(had) unjustly favored private respondent nor (had) exercised his power of appointment in an arbitrary,
whimsical or despotic manner.[46]

The peculiar circumstances in Tomali are definitely not present here. As a matter of fact, the situation
was exactly the opposite. As we have repeatedly stressed, respondent was not remiss in zealously following
up the status of her appointment. It cannot be reasonably claimed that the failure to submit respondents
appointment to the CSC was due to her own fault. The culpability lay in the manner the appointing officials
exercised their power with arbitrariness, whim and despotism. The whole scheme was intended to favor
another applicant.

Therefore, the lack of CSC approval in Favis and Tomali should be taken only in that light and not
overly stretched to cover any and all similar cases involving the 30-day rule. Certainly, the CSC approval
cannot be done away with. However, an innocent appointee like the respondent should not be penalized if her
papers (which were in the custody and control of others who, it turned out, were all scheming against her) did
not reach the CSC on time. After all, her appointment was subsequently approved by the CSC anyway.

Under Article 1186 of the Civil Code, [t]he condition shall be deemed fulfilled when the obligor
voluntarily prevents its fulfillment. Applying this to the appointment process in the civil service, unless the
appointee himself is negligent in following up the submission of his appointment to the CSC for approval, he
should not be prejudiced by any willful act done in bad faith by the appointing authority to prevent the timely
submission of his appointment to the CSC. While it may be argued that the submission of respondents
appointment to the CSC within 30 days was one of the conditions for the approval of respondents appointment,
however, deliberately and with bad faith, the officials responsible for the submission of respondents
appointment to the CSC prevented the fulfillment of the said condition. Thus, the said condition should be
deemed fulfilled.

The Court has already had the occasion to rule that an appointment remains valid in certain instances
despite non-compliance of the proper officials with the pertinent CSC rules. In Civil Service Commission v.
Joson, Jr.,[47] the CSC challenged the validity of the appointment of Ong on the ground that, among others, it
was not reported in the July 1995 Report of Personnel Action (ROPA), thus making such appointment
ineffective. The subject rule provided that an appointment issued within the month but not listed in the ROPA
for the said month shall become ineffective thirty days from issuance. Rejecting the CSCs contention, the
Court held that there was a legitimate justification for such delayed observance of the rule:

We find the respondent's justification for the failure of the POEA to include Ong's
appointment in its ROPA for July 1995 as required by CSC Memorandum Circular No. 27,
Series of 1994 to be in order. The records show that the [Philippine Overseas Employment
Administration (POEA)] did not include the contractual appointment of Ong in its July ROPA
because its request for exemption from the educational requisite for confidential staff members
provided in [Memorandum Circular] No. 38 had yet been resolved by the CSC. The resolution of
the petitioner granting such request was received only in November, 1995. The POEA,
thereafter, reported the appointment in its November, 1995 ROPA.[48]

The Court reached the same conclusion in the recent case of Chavez v. Ronidel[49] where there was a similar
inaction from the responsible officials which resulted in non-compliance with the requirement:

Lastly, we agree with the appellate court that respondent's appointment could not be
invalidated solely because of [Presidential Commission for the Urban Poors (PCUPs)] failure to
submit two copies of the ROPA as required by CSC Resolution No. 97368. xxxx

xxx xxx xxx

We quote with approval the appellate court's ratiocination in this wise:

To our minds, however, the invalidation of the [respondent's] appointment based on


this sole technical ground is unwarranted, if not harsh and arbitrary, considering the
factual milieu of this case. For one, it is not the [respondent's] duty to comply with the
requirement of the submission of the ROPA and the certified true copies of her appointment to
[the Civil Service Commission Field Office or] CSCFO within the period stated in the
aforequoted CSC Resolution. The said resolution categorically provides that it is the PCUP, and
not the appointee as in the case of the [respondent] here, which is required to comply with the
said reportorial requirements.

Moreover, it bears pointing out that only a few days after the [petitioner] assumed his
new post as PCUP Chairman, he directed the PCUP to hold the processing of [respondent's]
appointment papers in abeyance, until such time that an assessment thereto is officially
released from his office. Unfortunately, up to this very day, the [respondent] is still defending her
right to enjoy her promotional appointment as DMO V. Naturally, her appointment failed to
comply with the PCUP's reportorial requirements under CSC Resolution No. 97-
3685 precisely because of the [petitioner's] inaction to the same.
We believe that the factual circumstances of this case calls for the application of
equity. To our minds, the invalidation of the [respondent's] appointment due to a
procedural lapse which is undoubtedly beyond her control, and certainly not of her own
making but that of the [petitioner], justifies the relaxation of the provisions of CSC Board
Resolution No. 97-3685, pars. 6,7 and 8. Hence, her appointment must be upheld based on
equitable considerations, and that the non-submission of the ROPA and the certified true copies
of her appointment to the CSCFO within the period stated in the aforequoted CSC Resolution
should not work to her damage and prejudice. Besides, the [respondent] could not at all be
faulted for negligence as she exerted all the necessary vigilanceand efforts to reap the
blessings of a work promotion. Thus, We cannot simply ignore her plight. She has fought
hard enough to claim what is rightfully hers and, as a matter of simple justice, good conscience,
and equity, We should not allow Ourselves to prolong her agony.

All told, We hold that the [respondent's] appointment is valid, notwithstanding the
aforecited procedural lapse on the part of PCUP which obviously was the own making of herein
[petitioner].(Emphasis supplied)

Respondent deserves the same sympathy from the Court because there was also a telling reason
behind the non-submission of her appointment paper within the 30-day period.

The relevance of Joson and Chavez to this case cannot be simply glossed over. While the agencies
concerned in those cases were accredited agencies of the CSC which could take final action on the
appointments, that is not the case here. Thus, any such differentiation is unnecessary. It did not even factor in
the Courts disposition of the issue in Joson and Chavez. What is crucial is that, in those cases, the Court
upheld the appointment despite the non-compliance with a CSC rule because (1) there were valid justifications
for the lapse; (2) the non-compliance was beyond the control of the appointee and (3) the appointee was not
negligent. All these reasons are present in this case, thus, there is no basis in saying that the afore-cited cases
are not applicable here. Similar things merit similar treatment.

Fourth, in appointing petitioner, the appointing authority effectively revoked the previous appointment of
respondent and usurped the power of the CSC to withdraw or revoke an appointment that had already been
accepted by the appointee. It is the CSC, not the appointing authority, which has this power. [50] This is clearly
provided in Section 9, Rule V of the Omnibus Rules:

Section 9. An appointment accepted by the appointee cannot be withdrawn or


revoked by the appointing authority and shall remain in force and effect until
disapproved by the [CSC]. xxxx (Emphasis supplied)

Thus, the Court ruled in De Rama v. Court of Appeals[51] that it is the CSC which is authorized to recall
an appointment initially approved when such appointment and approval are proven to be in disregard of
applicable provisions of the civil service law and regulations.

Petitioner seeks to inflexibly impose the condition of submission of the appointment to the CSC by the
appointing authority within 30 days from issuance, that is, regardless of the negligence/diligence of the
appointee and the bad faith/good faith of the appointing authority to ensure compliance with the
condition. However, such stance would place the appointee at the mercy and whim of the appointing
authority even after a valid appointment has been made. For although the appointing authority may not
recall an appointment accepted by the appointee, he or she can still achieve the same result through
underhanded machinations that impedes or prevents the transmittal of the appointment to the CSC. In other
words, the insistence on a strict application of the condition regarding the submission of the appointment to the
CSC within 30 days, would give the appointing authority the power to do indirectly what he or she cannot do
directly. An administrative rule that is of doubtful basis will not only produce unjust consequences but also
corrupt the appointment process. Obviously, such undesirable end result could not have been the intention of
the law.

The power to revoke an earlier appointment through the appointment of another may not be conceded
to the appointing authority. Such position is not only contrary to Section 9, Rule V and Section 1, Rule IV of the
Omnibus Rules. It is also a dangerous reading of the law because it unduly expands the discretion given to the
appointing authority and removes the checks and balances that will rein in any abuse that may take place. The
Court cannot countenance such erroneous and perilous interpretation of the law.

Accordingly, petitioners subsequent appointment was void. There can be no appointment to a non-
vacant position. The incumbent must first be legally removed, or her appointment validly terminated, before
another can be appointed to succeed her.[52]

In sum, the appointment of petitioner was inconsistent with the law and well-established jurisprudence.
It not only disregarded the doctrine of immutability of final judgments but also unduly concentrated on a narrow
portion of the provision of law, overlooking the greater part of the provision and other related rules and using a
legal doctrine rigidly and out of context. Its effect was to perpetuate an injustice.

WHEREFORE, the petition is hereby DENIED.

G.R. No. 129616 April 17, 2002

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners,
vs.
JULIETA MONSERATE, respondent.

SANDOVAL-GUTIERREZ, J.:

This petition for review on certiorari1 seeks to set aside the Decision dated June 20, 1997 of the Court of
Appeals in CA-G.R. No. 39670,2 declaring null and void the Resolution No. 952043 dated March 21, 1995 and
Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the
reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division, Ports
Management Office, Philippine Ports Authority (PPA), Iloilo City.

The facts are:

Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port
Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier II
and then as Finance Officer (SG-16) in 1980.3

In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent
position of Manager II (SG-19) of the Resource Management Division, same office. The Comparative Data
Sheet4accomplished by the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the
said position, thus:
"COMPARATIVE DATA SHEET

OFFICE: PMO ILOILO

DIVISION: RES. MANAGEMENT


DIVISION

POSITION: DIVISION MANAGER

REQUIRED CS ELIG.: CS PROF / RA 1080

CANDIDATES ELIGIBILITY xxx TOTAL

1. MONSERATE, JULIETA CS Prof. xxx 79.5

2. ANINO, RAMON 1st grade xxx 70

3. TEODOSIO, APRIL PD 907 (CPA) xxx 67

4. MORTOLA, DARIO CS Prof. xxx 67

5. ESPINOSA, AMALIK Bar xxx 63.5

6. PERFECTO, BASCOS RA 1080 xxx 59.5"

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

"WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as
Resources Management Division Manager of the Port Management Office of Iloilo."

On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-889 (entitled "Creation
of the PPA Manager's Pool"), dated September 28, 1988, issued by the new PPA General Manager, Mr.
Rogelio A. Dayan. That Special Order excluded the name of respondent from the pool-list and placed instead
the name of petitioner as Manager II, Resource Management Division. In effect, the Special Order
implemented the August 11, 1988 Resolution of the PPA Appeals Board. 1wphi1.nt

Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated November
2, 1988.10 She questioned her replacement under PPA Special Order No. 479-88, claiming that the
proceedings before the PPA Appeals Board were irregular because (1) she was not notified of the hearing
before it; (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of
the protest filed by petitioner Anino;11 (3) she was not informed of the reasons behind her replacement; and (4)
their Port Manager (in Iloilo City), who was then an official member of the Board, was not included in the said
proceedings.

On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a copy of
PPA Special Order No. 492-8812 dated October 21, 1988, also issued by General Manager Dayan. This PPA
Order officially reassigned her to the position of Administrative Officer (SG-15) which was petitioner Anino's
former position and was lower than her previous position as Finance Officer (SG 16) before she was appointed
as Division Manager.

Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on her
earlier appeal/request for clarification, respondent filed on November 25, 1988 a "precautionary appeal"13 with
the CSC. She manifested that as of said date (November 25), she has not yet been furnished a certified copy
of the PPA Appeals Board Resolution.

On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer dated
October 1, 1988.14 It was also during this time when she learned that PPA General Manager Dayan had just
issued petitioner's appointment dated October 21, 1988 as Manager II in the Resource Management Division
effective February 1, 1988.

On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner Anino's
appointment and at the same time questioning the propriety of the August 11, 1988 Resolution of the PPA
Appeals Board. This appeal remained pending with the CSC for more than six (6) years despite respondent's
requests for early resolution. In the meantime, she assumed the position of Administrative Officer.

Eventually, the CSC, in its Resolution No. 95-204315 dated March 21, 1995, dismissed respondent's appeal,
thus:

"It is well-established rule that an appointment, although approved by this Commission, does not
become final until the protest filed against it is decided by the agency or by the Commission. Although
Monserate had already assumed the position of RMD Manager II, the appointing authority may still
withdraw the same if a protest is seasonably filed. This is covered by Section 19, Rule VI of the
Omnibus Rules implementing EO 292 x x x.
"Monserate's claim that she is more qualified than Anino is not relevant to the issue before this
Commission. In cases of protest filed or appealed to the Commission, the main question to be resolved
is whether or not the appointee meets the qualification standard. x x x. The Commission will not disturb
the choice of the appointing authority as long as the appointee meets the qualification prescribed for the
position in question."

Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. 95-
6640 dated October 24, 1995.

In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents the PPA
General Manager and petitioner Anino.

On June 20, 1997, the Court of Appeals rendered a Decision16 nullifying the twin Resolutions of the CSC. It
ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence and that
the same was irregularly issued due to lack of proper notice to respondent with respect to the Board's
proceedings. It concluded that her reassignment from the position of Manager II, Resource Management
Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of her constitutional
right to security of tenure and due process. The dispositive portion of the Court of Appeals' Decision reads:

"THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void Resolution
Nos. 952043 and 95640 (should be 956640) dated March 21 and October 21, 1988 (should be October
24, 1995), of the Civil service Commission; and directing the reinstatement of the petitioner to the
position of Resource Management Division Manager II.

"SO ORDERED."

Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition. On
November 30, 1997, petitioner Anino retired from the government service.17

Petitioners ascribe to the Court of Appeals the following errors:

I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT MONSERATE


WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE
OFFICER, THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.

II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-NIGH
RULE THAT RESPONDENT MONSERATE'S APPOINTMENT AS RESOURCE MANAGEMENT
DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE
PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR
THE CSC.

III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN IGNORING


THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN QUESTION TO BE
RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION STANDARD.18

The pivotal issue in this case is whether or not there was due process when respondent was replaced by
petitioner Anino from her position as Manager II, Resource Management Division, and demoted as
Administrative Officer.

Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of
administrative penalty, presupposes a conviction in an administrative case. Here, respondent was not charged
of any administrative case. Rather, she was displaced from her position as an "aftermath of the PPA
reorganization, authorized by law, the implementation of which having been carried out with utmost good faith."
Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of the PPA
Appeals Board which sustained petitioner Anino's timely protest against respondent's appointment. Petitioners
theorize that the appointment of respondent as Resource Management Division Manager did not become final
until the protest filed against her was favorably decided in her favor by the CSC. In support of this contention,
they cited Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), which provides inter alia:

"SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if the
appointee assumes the duties of the position and the appointee is entitled to receive the salary
attached to the position. However, the appointment, together with the decision of the department head,
shall be submitted to the Commission for appropriate action within 30 days from the date of its
issuance, otherwise the appointment becomes ineffective thereafter. Likewise, such appointment
shall become ineffective in case the protest is finally resolved against the protestee, in which
case, he shall be reverted to his former position."

Petitioners also contend that the head of an agency, being the appointing authority, is the one most
knowledgeable to decide who can best perform the functions of the office. The appointing authority has a wide
latitude of choice subject only to the condition that the appointee should possess the qualifications required by
law. Consequently, "the CSC acted rightly when it did not interfere in the exercise of discretion by the PPA
appointing authority, there being no evidence of grave abuse of discretion thereof or violation of the Civil
Service Law and Rules."

The petition is unmeritorious.

In the first place, the PPA reorganization in 1988 has nothing to do with respondent's demotion from the
contested position of Manager II, Resource Management Office (SG-19), to the lower position of Administrative
Officer (SG-15). Antithetically, it was precisely because of the said reorganization that respondent applied to
the higher position of Division Manager II. In fact, the Comparative Data Sheet accomplished by the PPA
Reorganization Task Force itself shows that respondent ranked No. 1, while petitioner Anino ranked No. 2,
from among the six (6) contenders to the said post. Respondent was eventually issued a permanent
appointment as such Division Manager on February 1, 1988 by then PPA General Maximo Dumlao, Jr., during
which time she actually assumed office and discharged its functions. This appointment was later approved on
July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the Civil Service Field Office-PPA.

Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of the
PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer. This is
further shown by the following orders and appointments subsequently issued by then PPA General Manager
Rogelio Dayan:

1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded respondent Monserate
from the PPA Managers' pool-list;

2. Appointment of respondent, dated October 1, 1988, to the position of Administrative Officer;

3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned respondent to the
position of Administrative Officer; and

4. Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager II, Resource
Management Division, effective February 1, 1988.

Therefore, contrary to petitioners' claim, respondent was demoted, not by reason of the PPA reorganization in
1988, but due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining petitioner Anino's protest
against respondent's appointment.
Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the PPA
Appeals Board which "upholds the appointment of Ramon A. Anino as Resource Management Division
Manager." But how can it uphold his appointment when he was not yet appointed then? It bears stressing that
he was appointed on a much later date - October 21, 1988, or more than two (2) months after August 11,
1998 when the PPA Appeals Board Resolution was issued. Stated differently, the PPA Appeals Board could
not uphold an appointment which was not yet existing.

Equally questionable are the grounds for respondent's demotion stated in the August 11, 1998 Resolution: "(1)
CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service
Eligibility." These grounds are incomprehensible for lack of discussion or explanation by the Board to enable
respondent to know the reason for her demotion.

We uphold the Court of Appeals' finding that the August 11, 1998 PPA Appeals Board Resolution was void for
lack of evidence and proper notice to respondent. As aptly held by the Appellate Court:

"In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the appointment
of the private respondent (Ramon Anino) as Division Manager, the grounds against petitioner's (Julieta
Monserate) appointment were: a) the CSC MC No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986,
Par. A, 1.2 and Par. B; and c) Civil service eligibility.

"x x x

"To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by evidence. Of
the CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her
appointment as Manager. x x x.

"With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and
recommendation of her appointment as Manager II, passed several committees created by the PPA. x x
x. Moreover, she had a 1.9 average performance rating compared to the private respondent who only
got 2.03. x x x.

"On eligibility, she has a Career Service Professional eligibility while the private respondent only has a
First Grade Civil Service Eligibility.

"She added that she was not aware of any proceeding on her demotion as a Division Manager. As a
matter of fact, it was only upon her iniative sometime during the latter part of November, 1988 that she
was able to obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution
sustained the private respondent's appointment as Division Manager even if on August 11, 1988, he
was not yet extended any appointment. As a matter of fact, he was appointed only on October 1, 1988
(should be October 21, 1988).

"Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and
void. She was never notified of any proceeding; she was not furnished either a copy of the resolution.
What she received instead was a Special Order dated September 29, 1988 already ordering her
demotion. She was not at all given the opportunity of defending herself before the Appeals Board.

"x x x.

"In the case now before us, the petitioner did not receive or was not given a copy of the August 11,
1988 Resolution of the Appeals Board. She did not even know that she was demoted until after she
received a copy of the of the Special Order No. 479-88."19

From all indications, it is indubitable that substantial and procedural irregularities attended respondent's
demotion from the position of Manager II, Resource Management Division, to the lower position of
Administrative Officer. Indeed, her demotion, tantamount to a revocation of her appointment as Manager II, is a
patent violation of her constitutional rights to security of tenure and due process. In Aquino vs. Civil Service
Commission,20 this Court emphasized that "once an appointment is issued and the moment the appointee
assumes a position in the civil service under a completed appointment, he acquires a legal, not merely
equitable, right (to the position) which is protected not only by statute, but also by the constitution, and cannot
be taken away from him either by revocation of the appointment, or by removal, except for cause, and with
previous notice and hearing."

Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of
qualified persons to vacant positions in the civil service.21 However, the moment the discretionary power of
appointment is exercised and the appointee assumed the duties and functions of the position, such
appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except
for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's appointment
by demoting her. Respondent's security of tenure guaranteed under the 1987 Constitution [Article IX-B, Section
2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power.22

Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the
Resource Management Division, it merely restored her appointment to the said position to which her right to
security of tenure had already attached. To be sure, her position as Manager II never became vacant since
her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is null
and void ab initio."23

We now delve on the backwages in favor of respondent.

The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding
backwages. This matter becomes controversial because respondent assumed the lower position of
Administrative Officer during the pendency of her protest against petitioner Anino's appointment to the
contested position. Also, petitioner Anino retired from the service on November 30, 1997.

In this respect, while petitioner Anino's appointment to the contested position is void, as earlier discussed, he is
nonetheless considered a de facto officer during the period of his incumbency.24 A de facto officer is one who is
in possession of an office and who openly exercises its functions under color of an appointment or election,
even though such appointment or election may be irregular.25 In Monroy vs. Court of Appeals,26 this Court ruled
that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter
during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith
and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must,
therefore, account to the de jure officer for whatever salary he received during the period of his wrongful
tenure. In the later case of Civil Liberties Union vs. Executive Secretary,27 this Court allowed a de facto officer
to receive emoluments for actual services rendered but only when there is no de jure officer, thus:

"x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in appropriate action recover the salary, fees and other
compensations attached to the office."

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

WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated June 20, 1997
is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is ordered to pay respondent
Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully assumed the
contested position of Manager II up to his retirement on November 30, 1997.

SO ORDERED.

Funa vs Agra
Case Digest GR 191644 Feb 19 2013

Facts:

Agra was then the Government Corporate Counsel when Pres Arroyo designated him as the Acting Solicitor
General in place of former Sol Gen Devanadera, who has been appointed as the Secretary of Justice. Again,
Agra was designated as the Acting Secretary in place of Secretary Devanadera when the latter resigned. Agra
then relinquished his position as Corporate Counsel and continued to perform the duties of an Acting Solicitor
General.

Funa, a concerned citizen, questioned his appointment. Agra argued that his concurrent designations were
merely in a temporary capacity. Even assuming that he was holding multiple offices at the same time, his
designation as an Acting Sol Gen is merely akin to a hold-over, so that he never received salaries and
emoluments for being the Acting Sol Gen when he was appointed as the Acting Secretary of Justice.

Issue 1: W/N Agras designation as Acting Secretary of Justice is valid

No. The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting Solicitor
General violates the constitutional prohibition under Article VII, Section 13 of the 1987 Constitution.

It is immaterial that Agras designation was in an acting or temporary capacity. Section 13 plainly indicates that
the intent of the Framers of the Constitution is to impose a stricter prohibition on the President and the Cabinet
Members in so far as holding other offices or employments in the Government or in GOCCs is concerned. The
prohibition against dual or multiple offices being held by one official must be construed as to apply to all
appointments or designations, whether permanent or temporary, because the objective of Section 13 is to
prevent the concentration of powers in the Executive Department officials, specifically the President, the Vice-
President, the Cabinet Members and their deputies and assistants.

Issue 2: W/N Agra may concurrently hold the positions by virtue of the hold-over principle

No. Agras designation as the Acting Secretary of Justice was not in an ex officio capacity, by which he would
have been validly authorized to concurrently hold the two positions due to the holding of one office being the
consequence of holding the other.

Being included in the stricter prohibition embodied in Section 13, Agra cannot liberally apply in his favor the
broad exceptions provided in Article IX-B, Sec 7 (2) of the Constitution to justify his designation as Acting
Secretary of Justice concurrently with his designation as Acting Solicitor General, or vice versa. It is not
sufficient for Agra to show that his holding of the other office was allowed by law or the primary functions of his
position. To claim the exemption of his concurrent designations from the coverage of the stricter prohibition
under Section 13, he needed to establish that his concurrent designation was expressly allowed by
the Constitution.

Issue 3: W/N the offices of the Solicitor General and Secretary of Justice is in an ex officio capacity in relation
to the other

No. The powers and functions of the Solicitor General are neither required by the primary functions nor
included in the powers of the DOJ, and vice versa. The OSG, while attached to the DOJ, is not a constituent of
the latter, as in fact, the Administrative Code of 1987 decrees that the OSG is independent and autonomous.
With the enactment of RA 9417, the Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, allowances, benefits and privileges as those of Presiding
Judges of the Court of Appeals. #

PUBLIC INTEREST CENTER INC., G. R. No. 138965


LAUREANO T. ANGELES, and
JOCELYN P. CELESTINO,
Petitioners,

Present:

- versus -

PANGANIBAN, CJ , *

Chairman,
MAGDANGAL B. ELMA, as Chief
Presidential Legal Counsel and as YNARES- SANT IAGO, * *
Chairman of the Presidential
AUSTRIA-MARTINEZ,
Commission on Good Government,
and RONALDO ZAMORA, as CALLEJO, SR., and
Executive Secretary, CHICO-NAZARIO, JJ .

Respondents.

Promulgated:

June 30, 2006


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

DECISION

CHICO-NAZARIO, J.:
This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for Temporary
Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.[1] This action seeks to declare as null
and void the concurrent appointments of respondent Magdangal B. Elma as Chairman of the Presidential
Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) for being
contrary to Section 13,[2] Article VII and Section 7, par. 2, [3]Article IX-B of the 1987 Constitution. In addition,
the petitioners further seek the issuance of the extraordinary writs of prohibition and mandamus, as well as
a temporary restraining order to enjoin respondent Elma from holding and discharging the duties of both
positions and from receiving any salaries, compensation or benefits from such positions during
the pendency of this petition.[4]Respondent Ronaldo Zamora was sued in his official capacity as Executive
Secretary.

On 30 October 1998, respondent Elma was appointed and took his oath of office as Chairman of the
PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG Chairman, respondent Elma was
appointed CPLC. He took his oath of office as CPLC the following day, but he waived any remuneration that he
may receive as CPLC.[5]

Petitioners cited the case of Civil Liberties Union v. Executive Secretary[6] to support their position that
respondent Elmas concurrent appointments as PCGG Chairman and CPLC contravenes Section 13, Article VII
and Section 7, par. 2, Article IX-B of the 1987 Constitution. Petitioners also maintained that respondent Elma
was holding incompatible offices.

Citing the Resolution[7] in Civil Liberties Union v. Executive Secretary, respondents allege that the strict
prohibition against holding multiple positions provided under Section 13, Article VII of the 1987 Constitution
applies only to heads of executive departments, their undersecretaries and assistant secretaries; it does not
cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary.
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be
applied in their case. This provision, according to the respondents, would allow a public officer to hold multiple
positions if (1) the law allows the concurrent appointment of the said official; and (2) the primary functions of
either position allows such concurrent appointment. Respondents also alleged that since there exists a close
relation between the two positions and there is no incompatibility between them, the primary functions of either
position would allow respondent Elmas concurrent appointments to both positions. Respondents further add
that the appointment of the CPLC among incumbent public officials is an accepted practice.

The resolution of this case had already been overtaken by supervening events. In 2001, the appointees
of former President Joseph Estrada were replaced by the appointees of the incumbent president,
Gloria Macapagal Arroyo. The present PCGG Chairman is Camilo Sabio, while the position vacated by the last
CPLC, now Solicitor General Antonio Nachura, has not yet been filled.There no longer exists an actual
controversy that needs to be resolved. However, this case raises a significant legal question as yet unresolved
- whether the PCGG Chairman can concurrently hold the position of CPLC. The resolution of this question
requires the exercise of the Courts judicial power, more specifically its exclusive and final authority to interpret
laws. Moreover, the likelihood that the same substantive issue raised in this case will be raised again compels
this Court to resolve it.[8] The rule is that courts will decide a question otherwise moot and academic if it is
capable of repetition, yet evading review.[9]

Supervening events, whether intended or accidental, cannot prevent the Court from rendering a
decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the
cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar, and public.[10]

The merits of this case may now be discussed.


The issue in this case is whether the position of the PCGG Chairman or that of the CPLC falls under
the prohibition against multiple offices imposed by Section 13, Article VII and Section 7, par. 2, Article IX-B
of the 1987 Constitution, which provide that:

Art. VII .

xxxx

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. x x x

Art. IX-B.

xxxx

Section 7. No elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

To harmonize these two provisions, this Court, in the case of Civil Liberties Union v. Executive
Secretary,[11] construed the prohibition against multiple offices contained in Section 7, Article IX-Band Section
13, Article VII in this manner:

[T]hus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants may
do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article
IX-B is meant to lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the exception applicable
only to the President, the Vice-President, Members of the Cabinet, their deputies and
assistants.

The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold
more than one office only if allowed by law or by the primary functions of his position. In the case
of Quimson v. Ozaeta,[12] this Court ruled that, [t]here is no legal objection to a government official occupying
two government offices and performing the functions of both as long as there is no incompatibility. The
crucial test in determining whether incompatibility exists between two offices was laid out in People v.
Green[13] - whether one office is subordinate to the other, in the sense that one office has the right to interfere
with the other.

[I]ncompatibilit y bet ween t wo offices, is an inconsistency in the functions of the


t wo; x x x W here one office is not subordinate to the other, nor the relations of
the one to the other such as are inconsistent and repugnant, there is not that
incompatibilit y from which the law declares that the acceptance of the one is
the vacation of the other. The force of the wor d, in its application to this matter
is, that from the nature and relations to each other, of the t wo places, they
ought not to be held by the same person, from the contrariet y and antagonism
which would result in the attempt by one person to faithfully and impartially
discharge the duties of one, toward the incumbent of the other. x x x The offices
must subordinate, one [over] the other, and they must, per se, have the right to
interfere, one with the other, before they are incompatible at common la w. x x x

In this case, an incompatibilit y exists bet ween the positions of the PCGG Chairman
and the CPLC. The duties of the CPLC include giving independent and impartial legal advice
on the actions of the heads of various executive departments and agencies and to review
investigations involving heads of executive departments and agencies, as well as other
Presidential appointees. The PCGG is, without question, an agency under the Executive
Department. Thus, the actions of the PCGG Chairman are subject to the revie w of the
CPLC. In Memorandum Order No. 152, issued on 9 July 2004, the Office of the President, in
an effort to promote efficiency and effective coordination, clearly delineated and specified
the functions and duties of its senior officers as such:

SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and provide the
President with legal assistance on matters requiring her action, including matters pertaining to
legislation.

The CPLC shall have the following duties and functions:

a. Exercise administrative supervision over the Office of the CPLC;

b. Review and/or draft legal orders referred to her by the President on the following matters that
are subject of decisions of the President;

1. Executive Orders, proclamations, administrative orders, memorandum


orders, and other legal documents initiated by the President;
2. Decision on investigation involving Cabinet Secretaries, agency heads, or
Presidential appointees with the rank of Secretary conducted by the
Presidential Anti-Graft Commission (PAGC);[14]

As CPLC, respondent Elma will be required to give his legal opinion on his own actions as PCGG Chairman
and review any investigation conducted by the Presidential Anti-Graft Commission, which may involve himself
as PCGG Chairman. In such cases, questions on his impartiality will inevitably be raised. This is the situation
that the law seeks to avoid in imposing the prohibition against holding incompatible offices.

Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the concurrent
appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as they are incompatible offices,
this Court will proceed to determine whether such appointments violate the other constitutional provision
regarding multiple offices, Section 13, Article VII of the 1987 Constitution.

While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and appointive
officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries, undersecretaries and
assistant secretaries. In the Resolution in Civil Liberties Union v. Executive Secretary,[15] this Court already
clarified the scope of the prohibition provided in Section 13, Article VII of the 1987 Constitution. Citing the case
of US v. Mouat[16], it specifically identified the persons who are affected by this prohibition as secretaries,
undersecretaries and assistant secretaries; and categorically excluded public officers who merely have the
rank of secretary, undersecretary or assistant secretary.

Another point of clarification raised by the Solicitor General refers to the persons affected by the
constitutional prohibition. The persons cited in the constitutional provision are the Members of
the Cabinet, their deputies and assistants. These terms must be given their common and
general acceptation as referring to the heads of the executive departments, their
undersecretaries and assistant secretaries.Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the
Solicitor General affected thereby. (Underscoring supplied.)

It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary,
undersecretary, nor an assistant secretary, even if the former may have the same rank as the latter
positions.

It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of the 1987
Constitution to respondent Elma, he remains covered by the general prohibition under Section 7, Article IX-B
and his appointments must still comply with the standard of compatibility of officers laid down therein; failing
which, his appointments are hereby pronounced in violation of the Constitution.

Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is applicable to the
present case, the defect in respondent Elmas concurrent appointments to the incompatible offices of the
PCGG Chairman and the CPLC would even be magnified when seen through the more stringent requirements
imposed by the said constitutional provision. In the aforecited case Civil Liberties Union v. Executive Secretary,
[17]
the Court stressed that the language of Section 13, Article VII is a definite and unequivocal negation of the
privilege of holding multiple offices or employment. The Court cautiously allowed only two exceptions to the
rule against multiple offices: (1) those provided for under the Constitution, such as Section 3, Article VII,
authorizing the Vice-President to become a member of the Cabinet; or (2) posts occupied by the Executive
officials specified in Section 13, Article VII without additional compensation in an ex-officio capacity as provided
by law and as required by the primary functions of said officials office. The Court further qualified that
additional duties must not only be closely related to, but must be required by the officials primary
functions. Moreover, the additional post must be exercised in an ex-officio capacity, which denotes an act done
in an official character, or as a consequence of office, and without any other appointment or authority than that
conferred by the office.[18] Thus, it will not suffice that no additional compensation shall be received by virtue of
the second appointment, it is mandatory that the second post is required by the primary functions of the first
appointment and is exercised in an ex-officio capacity.
With its forgoing qualifications, it is evident that even Section 13, Article VII does not sanction this
dual appointment. Appointment to the position of PCGG Chairman is not required by the primary functions
of the CPLC, and vice versa. The primary functions of the PCGG Chairman involve the recovery of ill-gotten
wealth accumulated by former President Ferdinand E. Marcos, his family and associates, the investigation
of graft and corruption cases assigned to him by the President, and the adoption of measures to prevent the
occurrence of corruption.[19] On the other hand, the primary functions of the CPLC encompass a different
matter, that is, the review and/or drafting of legal orders referred to him by the President. [20] And while
respondent Elma did not receive additional compensation in connection with his position as CPLC, he did
not act as either CPLC or PGCC Chairman in an ex-officio capacity. The fact that a separate appointment
had to be made for respondent Elma to qualify as CPLC negates the premise that he is acting in an ex-
officio capacity.

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not
apply to respondent Elma since neither the PCGG Chairman nor the CPLC is a Cabinet
secretar y, undersecretar y, or assistant secretar y. Even if this Court assumes, arguendo, that
Section 13, Article VII is applicable to respondent Elma, he still could not be appointed
concurrently to the offices of the PCGG Chairman and CPLC because neither office was
occupied by him in an ex-officio capacit y, and the primar y functions of one office do not
require an appointment to the other post. Moreover, even if the appointments in question are
not covered by Section 13, Article VII of the 1987 Constitution, said appointments are still
prohibited under Section 7, Article I X-B, which covers all appointive and elective officials,
due to the incompatibilit y bet ween the primar y functions of the offices of the PCGG
Chairman and the CPLC.

WHEREFORE, premises considered, this Court partly GRANTS this petition and declares
respondent Magdangal B. Elmas concurrent appointments as PCGG Chairman and CPLC
as UNCONSTITUTIONAL. No costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Baguio City

THIRD DIVISION

G.R. No. 200103 April 23, 2014


CIVIL SERVICE COMMISSION, Petitioner,
vs.
MARICELLE M. CORTES, Respondent.

DECISION

ABAD, J.:

This case concerns the validity of appointment by the Commission En Banc where the appointee is the
daughter of one of the Commissioners.

The Facts and the Case

On February 19, 2008 the Commission En Banc of the Commission on Human Rights (CHR) issued
Resolution A 2008-19 approving the appointment to the position of Information Officer V (IO V) of respondent
Maricelle M. Cortes. Commissioner Eligio P. Mallari, father of respondent Cortes, abstained from voting and
requested the CHR to render an opinion on the legality of the respondent's appointment.

In a Memorandum dated March 31, 2008, CHR Legal Division Chief Atty. Efren Ephraim G. Lamorena
rendered an opinion that respondent Cortes' appointment is not covered by the rule on nepotism because the
appointing authority, the Commission En Banc, has a personality distinct and separate from its members. CHR
Chairperson Purificacion C. Valera Quisumbing, however, sent respondent a letter on the same day instructing
her not to assume her position because her appointment is not yet complete.

On April 4, 2008 the Civil Service Commission-NCR (CSC-NCR) Field Office informed Chairperson
Quisumbing that it will conduct an investigation on the appointment of respondent Cortes.

On April 9, 2008 Velda E. Cornelio, Director II of the CSC-NCR Field Office informed Chairperson Quisumbing
that the appointment of respondent Cortes is not valid because it is covered by the rule on nepotism under
Section 9 of the Revised Omnibus Rules on Appointments and Other Personnel Actions. According to the
CSC-NCR, Commissioner Mallari is considered an appointing authority with respect to respondent Cortes
despite being a mere member of the Commission En Banc.

Respondent Cortes appealed the ruling of Director Cornelio but the same was denied on September 30, 2008.

Consequently, respondent Cortes filed a petition for review on November 24, 2008 before the CSC.

On March 2, 2010 the CSC issued Resolution 10-0370 where it denied the petition and affirmed the nepotic
character of respondent Cortes appointment. Respondent Cortes filed a Motion for Reconsideration but the
same was denied in Resolution 10-1396 dated July 12, 2010.

Consequently, in a letter dated August 10, 2010, CHR Commissioner and Officer-in-Charge Ma. Victoria V.
Cardona terminated respondents services effective August 4, 2010.

On August 16, 2010, respondent Cortes filed a Petition for Review with Prayer for Issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction with the Court of Appeals (CA).

On August 11, 2011, the CA rendered its Decision granting the petition and nullified Resolution 10-0370 dated
March 2, 2010 and 10-1396 dated July 12, 2010. The CA also ordered that Cortes be reinstated to her position
as IO V in the CHR.
Petitioner filed a Motion for Reconsideration but the same was denied by the CA in a Resolution dated January
10, 2012.

Hence, this petition.

Issue of the Case

Whether or not the CA erred when it ruled that the appointment of respondent Cortes as IO V in the CHR is not
covered by the prohibition against nepotism.

Ruling of the Court

The petition is impressed with merit.

Nepotism is defined as an appointment issued in favor of a relative within the third civil degree of consanguinity
or affinity of any of the following: (1) appointing authority; (2) recommending authority; (3) chief of the bureau or
office; and (4) person exercising immediate supervision over the appointee.1 Here, it is undisputed that
respondent Cortes is a relative of Commissioner Mallari in the first degree of consanguinity, as in fact Cortes is
the daughter of Commissioner Mallari.

By way of exception, the following shall not be covered by the prohibition: (1) persons employed in a
confidential capacity; (2) teachers; (3) physicians; and (4) members of the Armed Forces of the Philippines. 2 In
the present case, however, the appointment of respondent Cortes as IO V in the CHR does not fall to any of
the exemptions provided by law.

In her defense, respondent Cortes merely raises the argument that the appointing authority referred to in
Section 59 of the Administrative Code is the Commission En Banc and not the individual Commissioners who
compose it.

The purpose of Section 59 on the rule against nepotism is to take out the discretion of the appointing and
recommending authority on the matter of appointing or recommending for appointment a relative. The rule
insures the objectivity of the appointing or recommending official by preventing that objectivity from being in
fact tested.3 Clearly, the prohibition against nepotism is intended to apply to natural persons. It is one
pernicious evil impeding the civil service and the efficiency of its personnel.4

Moreover, basic rule in statutory construction is the legal maxim that "we must interpret not by the letter that
killeth, but by the spirit that giveth life." To rule that the prohibition applies only to the Commission, and not to
the individual members who compose it, will render the prohibition meaningless. Apparently, the Commission
En Banc, which is a body created by fiction of law, can never have relatives to speak of.

Indeed, it is absurd to declare that the prohibitive veil on nepotism does not include appointments made by a
group of individuals acting as a body.1wphi1 What cannot be done directly cannot be done indirectly. This
principle is elementary and does not need explanation. Certainly, if acts that cannot be legally done directly can
be done indirectly, then all laws would be illusory.

In the present case, respondent Cortes' appointment as IO V in the CHR by the Commission En Banc, where
his father is a member, is covered by the prohibition. Commissioner Mallari's abstention from voting did not
cure the nepotistic character of the appointment because the evil sought to be avoided by the prohibition still
exists. His mere presence during the deliberation for the appointment of IO V created an impression of
influence and cast doubt on the impartiality and neutrality of the Commission En Banc.
WHEREFORE, the instant petition is GRANTED. The Decision dated August 11, 2011 and Resolution dated
January 10, 2012 of the Court of Appeals in CA-G.R. SP 115380 are REVERSED and SET ASIDE. The
Resolution of the Civil Service Commission dated March 2, 2010 affirming the CSC-NCR Decision dated
September 30, 2008 invalidating the appointment of respondent Maricelle M. Cortes for being nepotistic is
hereby REINSTATED.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

[G.R. No. 135805. April 29, 1999]

CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY, respondent.

DECISION

PARDO, J.:

The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision
of the Court of Appeals ruling that respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null
and void the Civil Service Commissions resolution dismissing him from the service as Vocational School
Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar.

The facts may be succinctly related as follows:

On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern
Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for
habitual drunkenness, misconduct and nepotism.[1]

After the fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City, found a prima
facie case against respondent, and, on March 5, 1996, issued the corresponding formal charge against him.
[2]
Accordingly, the Civil Service Commission conducted a formal investigation, and, on January 28, 1997, the
Civil Service Commission promulgated its resolution finding no substantial evidence to support the charge of
habitual drunkenness and misconduct. However, the Civil Service Commission found respondent Pedro O.
Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped
Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and
control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the
penalty of dismissal from the service.[3]

On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration; [4] however, on May 20,
1997, the Civil Service Commission denied the motion.[5]

On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action
for certiorari with preliminary injunction[6] to set aside the Civil Service Commissions resolutions.

On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision
of the Civil Service Commission, ruling that respondent did not appoint or recommend his two sons Rito and
Ped, and, hence, was not guilty of nepotism. The Court further held that it is the person who recommends or
appoints who should be sanctioned, as it is he who performs the prohibited act.[7]
Hence, this appeal.

On November 17, 1998, we required respondent to comment on the petition within ten (10) days from
notice.[8] On December 11, 1998, respondent filed his comment

We give due course to the petition.

The basic issue raised is the scope of the ban on nepotism.

We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism
and correctly meted out the penalty of dismissal from the service.

The law defines nepotism[9] as follows:

Sec. 59. Nepotism. (1) All appointments to the national, provincial, city and municipal governments or in any
branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.

As used in this Section, the word relative and members of the family referred to are those related within the
third degree either of consanguinity or of affinity.

(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full report of such appointment shall be made to the
Commission.

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office, and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the
appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of
the bureau or office, or the person exercising immediate supervision over the appointee.

Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen,
Northern Samar. It is true that he did not appoint or recommend his two sons to the positions of driver and
utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the
Vocational Department of the BCAT, who recommended the appointment of Rito. Mr. Daclag's authority to
recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers,
and casuals and emergency laborers for short durations of three to six months was recommended by
respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such
positions shall be under Mr. Daclags immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II, Director
III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school. On January 3, 1993,
Mr. Daclag also appointed Ped Dacoycoy casual utility worker. However, it was respondent Dacoycoy who
certified that funds are available for the proposed appointment of Rito Dacoycoy and even rated his
performance as very satisfactory. On the other hand, his son Ped stated in his position description form that his
father was his next higher supervisor. The circumvention of the ban on nepotism is quite
obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the
school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under
his immediate supervision. Then Mr. Daclag recommended the appointment of respondents two sons and
placed them under respondents immediate supervision serving as driver and utility worker of the school. Both
positions are career positions.

To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or
recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.

At this point, we have necessarily to resolve the question of the party adversely affected who may take an
appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case.There
is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil
Service Commission adverse to him.[10] He was the respondent official meted out the penalty of dismissal from
the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent
Dacoycoy, to implead the Civil Service Commission as public respondent [11] as the government agency tasked
with the duty to enforce the constitutional and statutory provisions on the civil service.[12]

Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held
respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme
Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P.
Suan, who was merely a witness for the government.[13] Consequently, the Civil Service Commission has
become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence,
as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. [14] By this
ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party adversely affected
by the decision refers to the government employee against whom the administrative case is filed for the
purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer,
removal or dismissal from office[15] and not included are cases where the penalty imposed is suspension for not
more then thirty (30) days or fine in an amount not exceeding thirty days salary [16] or when the respondent is
exonerated of the charges, there is no occasion for appeal. [17] In other words, we overrule prior decisions
holding that the Civil Service Law does not contemplate a review of decisions exonerating officers or
employees from administrative charges enunciated in Paredes v. Civil Service Commission; [18] Mendez v. Civil
Service Commission;[19] Magpale v. Civil Service Commission; [20] Navarro v. Civil Service Commission and
Export Processing Zone Authority[21] and more recently Del Castillo v. Civil Service Commission[22]

The Court of Appeals reliance on Debulgado vs. Civil Service Commission, [23] to support its ruling is
misplaced. The issues in Debulgado are whether a promotional appointment is covered by the prohibition
against nepotism or the prohibition applies only to original appointments to the civil service, and whether the
Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given
to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly
limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a
relative. Precisely, in Debulgado, the Court emphasized that Section 59 means exactly what it says in plain and
ordinary language: x x x The public policy embodied in Section 59 is clearly fundamental in importance, and
the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification
here or a distinction there.[24]

Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado,
we stressed that [T]the basic purpose or objective of the prohibition against nepotism also strongly indicates
that the prohibition was intended to be a comprehensive one.[25] The Court was unwilling to restrict and limit the
scope of the prohibition which is textually very broad and comprehensive.[26] If not within the exceptions, it is a
form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head. As we
said in an earlier case what we need now is not only to punish the wrongdoers or reward the outstanding civil
servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance
with existing legal procedures in order to abate any occasion for graft or circumvention of the law.[27]

WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of
Appeals in CA-G.R. SP No. 44711.

ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated
January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.

No costs.

SO ORDERED.