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G.R. No.

116033, February 26, 1997 Number of CXL 6


Color Blue
ALFREDO L. AZARCON, PETITIONER, Owned By Mr. Jaime Ancla
VS.
SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES AND JOSE C. BATAUSA, RESPONDENTS. the same having been this day seized and left in (my) possession pending
investigation by the Commissioner of Internal Revenue or his duly authorized
DECISION representative. (I) further promise that (I) will faithfully keep, preserve, and, to the
PANGANIBAN, J.: best of (my) ability, protect said goods, articles, and things seized from defacement,
demarcation, leakage, loss, or destruction in any manner; that (I) will neither alter
Does the Sandiganbayan have jurisdiction over a private individual who is charged with nor remove, nor permit others to alter or remove or dispose of the same in any
malversation of public funds as a principal after the said individual had been designated by the manner without the express authority of the Commissioner of Internal Revenue; and
Bureau of Internal Revenue as a custodian of distrained property? Did such accused become a that (I) will produce and deliver all of said goods, articles, and things upon the order
public officer and therefore subject to the graft courts jurisdiction as a consequence of such of any court of the Philippines, or upon demand of the Commissioner of Internal
designation by the BIR? Revenue or any authorized officer or agent of the Bureau of Internal Revenue.[6]

These are the main questions in the instant petition for review of respondent Sandiganbayans Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIRs Regional
Decision[1] in Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of Director for Revenue Region 10 B, Butuan City stating that
malversation of public funds and property, and Resolution[2] dated June 20, 1994, denying his
motion for new trial or reconsideration thereof. x x x while I have made representations to retain possession of the property and
signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease
The Facts his operations with us. This is evidenced by the fact that sometime in August, 1985
he surreptitiously withdrew his equipment from my custody. x x x In this connection,
Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling dirt and may I therefore formally inform you that it is my desire to immediately relinquish
ore.[3] His services were contracted by the Paper Industries Corporation of the Philippines whatever responsibilities I have over the above-mentioned property by virtue of the
(PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he engaged the services receipt I have signed. This cancellation shall take effect immediately. x x x .[7]
of sub-contractors like Jaime Ancla whose trucks were left at the formers premises.[4] From
this set of circumstances arose the present controversy. Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP,
Mr. Delfin Panelo, and requested him to prevent this truck from being taken out of the PICOP
x x x It appears that on May 25, 1983, a Warrant of Distraint of Personal Property concession. By the time the order to bar the trucks exit was given, however, it was too late.[8]
was issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed to
the Regional Director (Jose Batausa) or his authorized representative of Revenue Regional Director Batausa responded in a letter dated May 27, 1986, to wit:
Region 10, Butuan City commanding the latter to distraint the goods, chattels or
effects and other personal property of Jaime Ancla, a sub-contractor of accused An analysis of the documents executed by you reveals that while you are (sic) in
Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the
accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal
to BIR the property in his possession owned by taxpayer Ancla. The Warrant of Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment
Garnishment was received by accused Azarcon on June 17, 1985.[5] which you have signed, obliged and committed to surrender and transfer to this
office. Your failure therefore, to observe said provisions does not relieve you of your
Petitioner Azarcon, in signing the Receipt for Goods, Articles, and Things Seized Under responsibility.[9]
Authority of the National Internal Revenue, assumed the undertakings specified in the receipt
the contents of which are reproduced as follows: Thereafter, the Sandiganbayan found that

(I), the undersigned, hereby acknowledge to have received from Amadeo V. San On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue
Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines, Region 10 B, Butuan City, sent a progress report to the Chief of the Collection Branch
the following described goods, articles, and things: of the surreptitious taking of the dump truck and that Ancla was renting out the truck
to a certain contractor by the name of Oscar Cueva at PICOP (Paper Industries
Kind of property Isuzu dump truck Corporation of the Philippines, the same company which engaged petitioners earth
Motor number E120-229598 moving services), Mangagoy, Surigao del Sur. She also suggested that if the report
Chassis No. SPZU50-1772440 were true, a warrant of garnishment be reissued against Mr. Cueva for whatever
amount of rental is due from Ancla until such time as the latters tax liabilities shall When the prosecution finished presenting its evidence, the petitioner then filed a motion for
be deemed satisfied. x x x However, instead of doing so, Director Batausa filed a leave to file demurrer to evidence which was denied on November 16, 1992, for being without
letter-complaint against the (herein Petitioner) and Ancla on 22 January 1988, or merit.[19] The petitioner then commenced and finished presenting his evidence on February
after more than one year had elapsed from the time of Mrs. Calos report.[10] 15, 1993.

Provincial Fiscal Pretextato Montenegro forwarded the records of the complaint x x x to the The Respondent Courts Decision
Office of the Tanodbayan on May 18, 1988. He was deputized Tanodbayan prosecutor and
granted authority to conduct preliminary investigation on August 22, 1988, in a letter by On March 8, 1994, respondent Sandiganbayan[20] rendered a Decision,[21] the dispositive
Special Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado portion of which reads:
Vasquez.[11]
WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond
Along with his co-accused Jaime Ancla, petitioner Azarcon was charged before the reasonable doubt as principal of Malversation of Public Funds defined and penalized
Sandiganbayan with the crime of malversation of public funds or property under Article 217 in under Article 217 in relation to Article 222 of the Revised Penal Code and, applying
relation to Article 222 of the Revised Penal Code (RPC) in the following Information [12]filed on the Indeterminate Sentence Law, and in view of the mitigating circumstance of
January 12, 1990, by Special Prosecution Officer Victor Pascual: voluntary surrender, the Court hereby sentences the accused to suffer the penalty
of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in
That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del its maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY
Sur, Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo of Reclusion Temporal. To indemnify the Bureau of Internal Revenue the amount of
L. Azarcon, a private individual but who, in his capacity as depository/administrator P80,831.59; to pay a fine in the same amount without subsidiary imprisonment in
of property seized or deposited by the Bureau of Internal Revenue, having voluntarily case of insolvency; to suffer special perpetual disqualification; and, to pay the costs.
offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No.
E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized to Considering that accused Jaime Ancla has not yet been brought within the
be such under the authority of the Bureau of Internal Revenue, has become a jurisdiction of this Court up to this date, let this case be archived as against him
responsible and accountable officer and said motor vehicle having been seized from without prejudice to its revival in the event of his arrest or voluntary submission to
Jaime C. Ancla in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND the jurisdiction of this Court.
EIGHT HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59) became a public
property and the value thereof as public fund, with grave abuse of confidence and SO ORDERED.
conspiring and confederating with said Jaime C. Ancla, likewise, a private individual,
did then and there wilfully, (sic) unlawfully and feloniously misappropriate, misapply Petitioner, through new counsel,[22] filed a motion for new trial or reconsideration on March
and convert to his personal use and benefit the aforementioned motor vehicle or the 23, 1994, which was denied by the Sandiganbayan in its Resolution[23] dated December 2, 1994.
value thereof in the aforestated amount, by then and there allowing accused Jaime
C. Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) Hence, this petition.
with the authority, consent and knowledge of the Bureau of Internal Revenue,
Butuan City, to the damage and prejudice of the government in the amount of The Issues
P80,831.59 in a form of unsatisfied tax liability.
The petitioner submits the following reasons for the reversal of the Sandiganbayans assailed
CONTRARY TO LAW. Decision and Resolution:

The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, I. The Sandiganbayan does not have jurisdiction over crimes committed solely by
alleging that: (1) the petitioner never appeared in the preliminary investigation; and (2) the private individuals.
petitioner was not a public officer, hence a doubt exists as to why he was being charged with
malversation under Article 217 of the Revised Penal Code.[13] The Sandiganbayan granted the II. In any event, even assuming arguendo that the appointment of a private individual
motion for reinvestigation on May 22, 1991.[14] After the reinvestigation, Special Prosecution as a custodian or a depositary of distrained property is sufficient to convert such
Officer Roger Berbano, Sr., recommended the withdrawal of the information[15] but was individual into a public officer, the petitioner cannot still be considered a public
overruled by the Ombudsman.[16] officer because:

A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the [A]
Sandiganbayan did not have jurisdiction over the person of the petitioner since he was not a
public officer.[17] On May 18, 1992, the Sandiganbayan denied the motion.[18]
There is no provision in the National Internal Revenue Code which (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
authorizes the Bureau of Internal Revenue to constitute private individuals Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
as depositaries of distrained properties. Title VII of the Revised Penal Code;

[B] (2) Other offenses or felonies committed by public officers and employees in relation
to their office, including those employed in government-owned or controlled
His appointment as a depositary was not by virtue of a direct provision of corporations, whether simple or complexed with other crimes, where the penalty
law, or by election or by appointment by a competent authority. prescribed by law is higher than prision correccional or imprisonment for six (6)
years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies
III. No proof was presented during trial to prove that the distrained vehicle was mentioned in this paragraph where the penalty prescribed by law does not exceed
actually owned by the accused Jaime Ancla; consequently, the governments right to prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be
the subject property has not been established. tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court and Municipal Circuit Trial Court.
IV. The procedure provided for in the National Internal Revenue Code concerning the
disposition of distrained property was not followed by the B.I.R., hence the distraint xxx xxx xxx
of personal property belonging to Jaime C. Ancla and found allegedly to be in the
possession of the petitioner is therefore invalid. In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-
V. The B.I.R. has only itself to blame for not promptly selling the distrained property owned or controlled corporations, they shall be tried jointly with said public officers
of accused Jaime C. Ancla in order to realize the amount of back taxes owed by Jaime and employees.
C. Ancla to the Bureau.[24]
x x x x x x x x x.
In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject
matter of the controversy. Corollary to this is the question of whether petitioner can be The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will
considered a public officer by reason of his being designated by the Bureau of Internal Revenue have jurisdiction over a private individual, i.e. when the complaint charges the private
as a depositary of distrained property. individual either as a co-principal, accomplice or accessory of a public officer or employee who
has been charged with a crime within its jurisdiction.
The Courts Ruling
Azarcon: A Public Officer or A Private Individual?
The petition is meritorious.
The Information does not charge petitioner Azarcon of being a co-principal, accomplice or
Jurisdiction of the Sandiganbayan accessory to a public officer committing an offense under the Sandiganbayans jurisdiction.
Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no jurisdiction
It is hornbook doctrine that in order (to) ascertain whether a court has jurisdiction or not, the over the crime charged. Article 203 of the RPC determines who are public officers:
provisions of the law should be inquired into.[25] Furthermore, the jurisdiction of the court
must appear clearly from the statute law or it will not be held to exist. It cannot be presumed Who are public officers. -- For the purpose of applying the provisions of this and the
or implied.[26] And for this purpose in criminal cases, the jurisdiction of a court is determined preceding titles of the book, any person who, by direct provision of the law, popular
by the law at the time of commencement of the action.[27] election, popular election or appointment by competent authority, shall take part in
the performance of public functions in the Government of the Philippine Islands, or
In this case, the action was instituted with the filing of this information on January 12, 1990; shall perform in said Government or in any of its branches public duties as an
hence, the applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No. employee, agent, or subordinate official, of any rank or classes, shall be deemed to
1861 on March 23, 1983, but prior to their amendment by R.A. No. 7975 on May 16, 1995. At be a public officer.
that time, Section 4 of P.D. No. 1606 provided that:
Thus,
SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:
(to) be a public officer, one must be --
(a) Exclusive original jurisdiction in all cases involving:
(1) Taking part in the performance of public functions in the government, or
Performing in said Government or any of its branches public duties as an employee, and those necessarily implied in the exercise thereof.[36] Corollarily, implied powers are those
agent, or subordinate official, of any rank or class; and which are necessarily included in, and are therefore of lesser degree than the power granted.
It cannot extend to other matters not embraced therein, nor are not incidental thereto.[37]
(2) That his authority to take part in the performance of public functions or to For to so extend the statutory grant of power would be an encroachment on powers expressly
perform public duties must be -- lodged in Congress by our Constitution.[38] It is true that Sec. 206 of the NIRC, as pointed out
by the prosecution, authorizes the BIR to effect a constructive distraint by requiring any
a. by direct provision of the law, or person to preserve a distrained property, thus:

b. by popular election, or x x x x x x x x x

c. by appointment by competent authority.[28] The constructive distraint of personal property shall be effected by requiring the
taxpayer or any person having possession or control of such property to sign a receipt
Granting arguendo that the petitioner, in signing the receipt for the truck constructively covering the property distrained and obligate himself to preserve the same intact
distrained by the BIR, commenced to take part in an activity constituting public functions, he and unaltered and not to dispose of the same in any manner whatever without the
obviously may not be deemed authorized by popular election. The next logical query is express authority of the Commissioner.
whether petitioners designation by the BIR as a custodian of distrained property qualifies as
appointment by direct provision of law, or by competent authority. [29] We answer in the x x x x x x x x x
negative.
However, we find no provision in the NIRC constituting such person a public officer by reason
The Solicitor General contends that the BIR, in effecting constructive distraint over the truck of such requirement. The BIRs power authorizing a private individual to act as a depositary
allegedly owned by Jaime Ancla, and in requiring the petitioner Alfredo Azarcon who was in cannot be stretched to include the power to appoint him as a public officer. The prosecution
possession thereof to sign a pro forma receipt for it, effectively designated petitioner a argues that Article 222 of the Revised Penal Code x x x defines the individuals covered by the
depositary and, hence, citing U.S. vs. Rastrollo,[30] a public officer.[31] This is based on the theory term officers under Article 217[39] x x x of the same Code.[40] And accordingly, since Azarcon
that became a depository of the truck seized by the BIR he also became a public officer who can
be prosecuted under Article 217 x x x.[41]
(t)he power to designate a private person who has actual possession of a distrained
property as a depository of distrained property is necessarily implied in the BIRs The Court is not persuaded. Article 222 of the RPC reads:
power to place the property of a delinquent tax payer (sic) in distraint as provided
for under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the Officers included in the preceding provisions. -- The provisions of this chapter shall
National Internal Revenue Code, (NIRC) x x x.[32] apply to private individuals who, in any capacity whatever, have charge of any
insular, provincial or municipal funds, revenues, or property and to any administrator
We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply or depository of funds or property attached, seized or deposited by public authority,
because the facts therein are not identical, similar or analogous to those obtaining here. While even if such property belongs to a private individual.
the cited case involved a judicial deposit of the proceeds of the sale of attached property in
the hands of the debtor, the case at bench dealt with the BIRs administrative act of effecting Legislative intent is determined principally from the language of a statute. Where the
constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, language of a statute is clear and unambiguous, the law is applied according to its express
property which was received by petitioner Azarcon. In the cited case, it was clearly within the terms, and interpretation would be resorted to only where a literal interpretation would be
scope of that courts jurisdiction and judicial power to constitute the judicial deposit and give either impossible or absurd or would lead to an injustice.[42] This is particularly observed in
the depositary a character equivalent to that of a public official.[33] However, in the instant the interpretation of penal statutes which must be construed with such strictness as to
case, while the BIR had authority to require petitioner Azarcon to sign a receipt for the carefully safeguard the rights of the defendant x x x.[43] The language of the foregoing
distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer. provision is clear. A private individual who has in his charge any of the public funds or property
enumerated therein and commits any of the acts defined in any of the provisions of Chapter
It is axiomatic in our constitutional framework, which mandates a limited government, that its Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to
branches and administrative agencies exercise only that power delegated to them as defined erring public officers. Nowhere in this provision is it expressed or implied that a private
either in the Constitution or in legislation or in both.[34] Thus, although the appointing power individual falling under said Article 222 is to be deemed a public officer.
is the exclusive prerogative of the President, x x x[35] the quantum of powers possessed by an
administrative agency forming part of the executive branch will still be limited to that After a thorough review of the case at bench, the Court thus finds petitioner Alfredo Azarcon
conferred expressly or by necessary or fair implication in its enabling act. Hence, (a)n and his co-accused Jaime Ancla to be both private individuals erroneously charged before and
administrative officer, it has been held, has only such powers as are expressly granted to him convicted by Respondent Sandiganbayan which had no jurisdiction over them. The
Sandiganbayans taking cognizance of this case is of no moment since (j)urisdiction cannot be
conferred by x x x erroneous belief of the court that it had jurisdiction.[44] As aptly and
correctly stated by the petitioner in his memorandum:

From the foregoing discussion, it is evident that the petitioner did not cease to be a
private individual when he agreed to act as depositary of the garnished dump truck.
Therefore, when the information charged him and Jaime Ancla before the
Sandiganbayan for malversation of public funds or property, the prosecution was in
fact charging two private individuals without any public officer being similarly
charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction
over the controversy and therefore all the proceedings taken below as well as the
Decision rendered by Respondent Sandiganbayan, are null and void for lack of
jurisdiction.[45]

WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET
ASIDE and declared NULL and VOID for lack of jurisdiction. No costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.
G.R. No. 145368, April 12, 2002 On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate
denouncing alleged anomalies in the construction and operation of the Centennial Exposition
SALVADOR H. LAUREL, PETITIONER, Project at the Clark Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator
VS. Cosetengs privilege speech was referred to the Committee on Accountability of Public Officers
HON. ANIANO A. DESIERTO, IN HIS CAPACITY AS OMBUDSMAN, RESPONDENT. and Investigation (The Blue Ribbon Committee) and several other Senate Committees for
investigation.
DECISION
KAPUNAN, J.: On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating
an ad hoc and independent citizens committee to investigate all the facts and circumstances
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223 surrounding the Philippine centennial projects, including its component activities. Former
constituting a Committee for the preparation of the National Centennial Celebration in 1998. Senator Rene A.V. Saguisag was appointed to chair the Committee.
The Committee was mandated to take charge of the nationwide preparations for the National
Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate
Inauguration of the Malolos Congress.[1] its Committee Final Report No. 30 dated February 26, 1999. Among the Committees
recommendations was the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair
Subsequently, President Fidel V. Ramos issued Executive Order No. 128, reconstituting the of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of
Committee for the preparation of the National Centennial Celebrations in 1998. It renamed centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest
the Committee as the National Centennial Commission. Appointed to chair the bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring)
reconstituted Commission was Vice-President Salvador H. Laurel. Presidents Diosdado M. even in the absence of a valid contract that has caused material injury to government and for
Macapagal and Corazon C. Aquino were named Honorary Chairpersons.[2] participating in the scheme to preclude audit by COA of the funds infused by the government
for the implementation of the said contracts all in violation of the anti-graft law.[5]
Characterized as an ad-hoc body, the existence of the Commission shall terminate upon the
completion of all activities related to the Centennial Celebrations.[3] Like its predecessor Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended
Committee, the Commission was tasked to take charge of the nationwide preparations for the further investigation by the Ombudsman, and indictment, in proper cases of, among
the National Celebration of the Philippine Centennial of the Declaration of Philippine others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a)
Independence and the Inauguration of the Malolos Congress. in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.

Per Section 6 of the Executive Order, the Commission was also charged with the responsibility The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred
to prepare, for approval of the President, a Comprehensive Plan for the Centennial to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27,
Celebrations within six (6) months from the effectivity of the Executive Order. 2000, the Bureau issued its Evaluation Report, recommending:

E.O. No. 128 also contained provisions for staff support and funding: 1. that a formal complaint be filed and preliminary investigation be conducted before
the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the
Sec. 3. The Commission shall be provided with technical and administrative staff Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former
support by a Secretariat to be composed of, among others, detailed personnel from EXPOCORP President Teodoro Q. Pea and AK President Edgardo H. Angeles for
the Presidential Management Staff, the National Commission for Culture and the violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and
Arts, and the National Historical Institute. Said Secretariat shall be headed by a full COA Rules and Regulations;
time Executive Director who shall be designated by the President.
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
Sec. 4. The Commission shall be funded with an initial budget to be drawn from the complainant.[6]
Department of Tourism and the presidents Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and
for succeeding years shall be incorporated in the budget of the Office of the Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and those
President. of his witnesses.

Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss
was created.[4] Petitioner was among the nine (9) Expocorp incorporators, who were also its questioning the jurisdiction of said office.
first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer.
In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the In its Resolution of February 22, 2000, the Court expounded:
motion was denied in an Order dated October 5, 2000.
The clear import of such pronouncement is to recognize the authority of the State
On October 25, 2000, petitioner filed the present petition for certiorari. and regular provincial and city prosecutors under the Department of Justice to have
control over prosecution of cases falling within the jurisdiction of the regular
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a courts. The investigation and prosecutorial powers of the Ombudsman relate to
resolution finding probable cause to indict respondents SALVADOR H. LAUREL and TEODORO cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15
Q. PEA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. (1) of R.A. 6770 (An Act Providing for the Functional and Structural Organization of
3019, in relation to Republic Act No. 1594. The resolution also directed that an information the Office of the Ombudsman, and for other purposes) which vests upon the
for violation of the said law be filed against Laurel and Pea. Ombudsman Aniano A. Desierto Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan
approved the resolution with respect to Laurel but dismissed the charge against Pea. And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that
the Office of the Special Prosecutor shall have the power to conduct preliminary
In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, investigation and prosecute criminal cases within the jurisdiction of the
commanding respondents to desist from filing any information before the Sandiganbayan or Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction
any court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and Corrupt clearly serve to limit the Ombudsmans and Special Prosecutors authority to cases
Practices Act. cognizable by the Sandiganbayan. [Emphasis in the original.]

On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the
argument. Ombudsman in the same case, the Court set aside the foregoing pronouncement in its
Resolution dated March 20, 2001. The Court explained the rationale for this reversal:
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public
officer because: The power to investigate and to prosecute granted by law to the Ombudsman is
plenary and unqualified. It pertains to any act or omission of any public officer or
A. employee when such act or omission appears to be illegal, unjust, improper or
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH inefficient. The law does not make a distinction between cases cognizable by the
UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH Sandiganbayan and those cognizable by regular courts. It has been held that the
VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY clause any illegal act or omission of any public official is broad enough to embrace
COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR any crime committed by a public officer or employee.
CONTROLLED CORPORATION.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
B. particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE. cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within
C. the jurisdiction of the Sandiganbayan, should not be construed as confining the
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A scope of the investigatory and prosecutory power of the Ombudsman to such cases.
PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES
ACT.[7] Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs. Sandiganbayan,[9] authorizing the Ombudsman to take over, at any stage, from any investigatory
where it was held that the jurisdiction of the Ombudsman was limited to cases cognizable by agency of the government, the investigation of such cases. The grant of this
the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioners position authority does not necessarily imply the exclusion from its jurisdiction of cases
was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, involving public officers and employees by other courts. The exercise by the
the Ombudsman, would have no jurisdiction over him. Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan
is not incompatible with the discharge of his duty to investigate and prosecute other
This last contention is easily dismissed. In the Courts decision in Uy, we held that it is the offenses committed by public officers and employees. Indeed, it must be stressed
prosecutor, not the Ombudsman, who has the authority to file the corresponding that the powers granted by the legislature to the Ombudsman are very broad and
information/s against petitioner in the regional trial court. The Ombudsman exercises encompass all kinds of malfeasance, misfeasance and non-feasance committed by
prosecutorial powers only in cases cognizable by the Sandiganbayan. public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have
with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The the following powers, functions and duties:
Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority (1) Investigate and prosecute on its own or on complaint by any person, any act or
of the Ombudsman. Its power to conduct preliminary investigation and to prosecute omission of any public officer or employee, office or agency, when such act or
is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, omission appears to be illegal unjust, improper or inefficient. It has primary
the lawmakers did not intend to confine the investigatory and prosecutory power of jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
the Ombudsman to these types of cases. The Ombudsman is mandated by law to primary jurisdiction, it may take over, at any stage, from any investigatory agency of
act on all complaints against officers and employees of the government and to Government, the investigation of such cases;
enforce their administrative, civil and criminal liability in every case where the
evidence warrants. To carry out this duty, the law allows him to utilize the personnel x x x.
of his office and/or designate any fiscal, state prosecutor or lawyer in the
government service to act as special investigator or prosecutor to assist in the The coverage of the law appears to be limited only by Section 16, in relation to Section 13,
investigation and prosecution of certain cases. Those designated or deputized to supra:
assist him work under his supervision and control. The law likewise allows him to
direct the Special Prosecutor to prosecute cases outside the Sandiganbayans SEC 16. Applicability. The provisions of this Act shall apply to all kinds of
jurisdiction in accordance with Section 11 (4c) of RA 6770. malfeasance, misfeasance and non-feasance that have been committed by any
officer or employee as mentioned in Section 13 hereof, during his tenure of office.
The prosecution of offenses committed by public officers and employees is one of
the most important functions of the Ombudsman. In passing RA 6770, the Congress In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-
deliberately endowed the Ombudsman with such power to make him a more active feasance by a public officer or employee of the government, or of any subdivision, agency or
and effective agent of the people in ensuring accountability in public office. A review instrumentality thereof, including government-owned or controlled corporations.[12]
of the development of our Ombudsman law reveals this intent. [Emphasis in the
original.] Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public
officers are. A definition of public officers cited in jurisprudence[13] is that provided by
Having disposed of this contention, we proceed to the principal grounds upon which petitioner Mechem, a recognized authority on the subject:
relies. We first address the argument that petitioner, as Chair of the NCC, was not a public
officer. 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
The Constitution[10] describes the Ombudsman and his Deputies as protectors of the people, creating power, an individual is invested with some portion of the sovereign
who shall act promptly on complaints filed in any form or manner against public officials or functions of the government, to be exercised by him for the benefit of the
employees of the government, or any subdivision, agency or instrumentality thereof, including public. The individual so invested is a public officer.[14]
government-owned or controlled corporations. Among the awesome powers, functions, and
duties vested by the Constitution[11] upon the Office of the Ombudsman is to [i]nvestigate The characteristics of a public office, according to Mechem, include the delegation of sovereign
any act or omission of any public official, employee, office or agency, when such act or functions, its creation by law and not by contract, an oath, salary, continuance of the position,
omission appears to be illegal, unjust, improper, or inefficient. scope of duties, and the designation of the position as an office.[15]

The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, Petitioner submits that some of these characteristics are not present in the position of NCC
otherwise known as the Ombudsman Act of 1989. Sections 13 and 15(1) of said law Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did
respectively provide: not receive any compensation; and (3) continuance, the tenure of the NCC being temporary.

SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people Mechem describes the delegation to the individual of some of the sovereign functions of
shall act promptly on complaints file in any form or manner against officers or government as [t]he most important characteristic in determining whether a position is a
employees of the Government, or of any subdivision, agency or instrumentality public office or not.
thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants The most important characteristic which distinguishes an office from an employment
in order to promote efficient service by the Government to the people. or contract is that the creation and conferring of an office involves a delegation to
the individual of some of the sovereign functions of government, to be exercised by
him for the benefit of the public; that some portion of the sovereignty of the
country, either legislative, executive or judicial, attaches, for the time being, to be The NCC was precisely created to execute the foregoing policies and objectives, to carry them
exercised for the public benefit. Unless the powers conferred are of this nature, the into effect. Thus, the Commission was vested with the following functions:
individual is not a public officer.[16]
(a) To undertake the overall study, conceptualization, formulation and
Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, implementation of programs and projects on the utilization of culture, arts,
the law did not delegate upon the NCC functions that can be described as legislative or literature and media as vehicles for history, economic endeavors, and
judicial. May the functions of the NCC then be described as executive? reinvigorating the spirit of national unity and sense of accomplishment in
every Filipino in the context of the Centennial Celebrations. In this regard, it
We hold that the NCC performs executive functions. The executive power is generally defined shall include a Philippine National Exposition 98 within Metro Manila, the
as the power to enforce and administer the laws. It is the power of carrying the laws into original eight provinces, and Clark Air Base as its major venues;
practical operation and enforcing their due observance.[17] The executive function, therefore,
concerns the implementation of the policies as set forth by law. (b) To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;
The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and
Sports) thereof: (c) To serve as the clearing house for the preparation and dissemination of all
information about the plans and events for the Centennial Celebrations;
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nations historical and cultural heritage and (d) To constitute working groups which shall undertake the implementation of the
resources, as well as artistic creations. programs and projects;

In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the (e) To prioritize the refurbishment of historical sites and structures nationwide. In
National Centennial Celebrations in 1998: this regard, the Commission shall formulate schemes (e.g. lease-maintained-
and-transfer, build-operate-transfer, and similar arrangements) to ensure the
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and preservation and maintenance of the historical sites and structures;
the centennial presents an important vehicle for fostering nationhood and a strong
sense of Filipino identity; (f) To call upon any government agency or instrumentality and corporation, and
to invite private individuals and organizations to assist it in the performance
Whereas, the centennial can effectively showcase Filipino heritage and thereby of its tasks; and,
strengthen Filipino values;
(g) Submit regular reports to the President on the plans, programs, projects,
Whereas, the success of the Centennial Celebrations may be insured only through activities as well as the status of the preparations for the Celebration.[18]
long-range planning and continuous developmental programming;
It bears noting the President, upon whom the executive power is vested, [19] created the NCC
Whereas, the active participation of the private sector in all areas of special expertise by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2
and capability, particularly in communication and information dissemination, is describes the nature of executive orders:
necessary for long-range planning and continuous developmental programming;
SEC. 2. Executive Orders. Acts of the President providing for rules of a general or
Whereas, there is a need to create a body which shall initiate and undertake the permanent character in implementation or execution of constitutional or statutory
primary task of harnessing the multisectoral components from the business, cultural, powers shall be promulgated in executive orders. [Underscoring ours.]
and business sectors to serve as effective instruments from the launching and
overseeing of this long-term project; Furthermore, the NCC was not without a role in the countrys economic development,
especially in Central Luzon. Petitioner himself admitted as much in the oral arguments before
x x x. this Court:

E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, MR. JUSTICE REYNATO S. PUNO:
cited the need to strengthen the said Committee to ensure a more coordinated and
synchronized celebrations of the Philippine Centennial and wider participation from the And in addition to that expounded by Former President Ramos, dont you agree that
government and non-government or private organizations. It also referred to the need to the task of the centennial commission was also to focus on the long term over all
rationalize the relevance of historical links with other countries.
socio economic development of the zone and Central Luzon by attracting investors Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court
in the area because of the eruption of Mt. Pinatubo. cautioned that there can be no hard and fast rule for purposes of determining the true nature
of an undertaking or function of a municipality; the surrounding circumstances of a particular
FORMER VICE PRESIDENT SALVADOR H. LAUREL: case are to be considered and will be decisive. Thus, in footnote 15 of Torio, the Court, citing
an American case, illustrated how the surrounding circumstances plus the political, social, and
I am glad Your Honor touched on that because that is something I wanted to touch cultural backgrounds could produce a conclusion different from that in Torio:
on by lack of material time I could not but that is a very important point. When I was
made Chairman I wanted the Expo to be in Batangas because I am a Batangeo but We came across an interesting case which shows that surrounding circumstances
President Ramos said Mr. Vice President the Central Luzon is suffering, suffering plus the political, social, and cultural backgrounds may have a decisive bearing on
because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery this question. The case of Pope v. City of New Haven, et al. was an action to recover
in that area by putting this Expo in Clark Field and so it was done I agreed and Your damages for personal injuries caused during a Fourth of July fireworks display
Honor if I may also mention we wanted to generate employment aside from resulting in the death of a bystander alleged to have been caused by defendants
attracting business investments and employment. And the Estrada administration negligence. The defendants demurred to the complaint invoking the defense that
decided to junk this project there 48, 40 thousand people who lost job, they were the city was engaged in the performance of a public governmental duty from which
employed in Expo. And our target was to provide 75 thousand jobs. It would have it received no pecuniary benefit and for negligence in the performance of which no
really calibrated, accelerated the development of Central Luzon. Now, I think they statutory liability is imposed. This demurrer was sustained by the Superior Court of
are going back to that because they had the airport and there are plan to revive the New Haven Country. Plaintiff sought to amend his complaint to allege that the
Expo site into key park which was the original plan. celebration was for the corporate advantage of the city. This was denied. In
affirming the order, the Supreme Court of Errors of Connecticut held inter alia:
There can hardly be any dispute that the promotion of industrialization and full employment
is a fundamental state policy.[20] Municipal corporations are exempt from liability for the negligent performance of
purely public governmental duties, unless made liable by statute.
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the holding by a
municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner A municipality corporation, which under permissive authority of its charter or of
argues that the holding of a nationwide celebration which marked the nations 100th birthday statute, conducted a public Fourth of July celebration, including a display of
may be likened to a national fiesta which involved only the exercise of the national fireworks, and sent up a bomb intended to explode in the air, but which failed to
governments proprietary function.[22] In Torio, we held: explode until it reached the ground, and then killed a spectator, was engaged in the
performance of a governmental duty. (99 A.R. 51)
[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not This decision was concurred in by three Judges while two dissented.
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for the At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
special benefit of the community and not for the general welfare of the public
performed in pursuance of a policy of the state. The mere fact that the celebration, July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
as claimed, was not to secure profit or gain but merely to provide entertainment to Independence Day, by our statutes. All or nearly all of the other states have similar
the town inhabitants is not a conclusive test. For instance, the maintenance of parks statutes. While there is no United States statute making a similar provision, the
is not a source of income for the town, nonetheless it is [a] private undertaking as different departments of the government recognize, and have recognized since the
distinguished from the maintenance of public schools, jails, and the like which are government was established, July 4th as a national holiday. Throughout the country
for public service. it has been recognized and celebrated as such. These celebrations, calculated to
entertain and instruct the people generally and to arouse and stimulate patriotic
As stated earlier, there can be no hard and fast rule for purposes of determining the sentiments and love of country, frequently take the form of literary exercises
true nature of an undertaking or function of a municipality; the surrounding consisting of patriotic speeches and the reading of the Constitution, accompanied by
circumstances of a particular case are to be considered and will be decisive. The a musical program including patriotic air sometimes preceded by the firing of cannon
basic element, however beneficial to the public the undertaking may be, is that it is and followed by fireworks. That such celebrations are of advantage to the general
government in essence, otherwise, the function becomes private or propriety in public and their promotion a proper subject of legislation can hardly be questioned.
character. Easily, no governmental or public policy of the state is involved in the x x x
celebration of a town fiesta.
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial
Celebrations was meant to commemorate the birth of our nation after centuries of struggle
against our former colonial master, to memorialize the liberation of our people from person holding an office of trust or profit under the United States is disqualified from being
oppression by a foreign power. 1998 marked 100 years of independence and sovereignty as appointed an elector.)
one united nation. The Celebrations was an occasion to reflect upon our history and
reinvigorate our patriotism. As A.O. 223 put it, it was a vehicle for fostering nationhood and x x x. We think a Commissioner of the United States Centennial Commission holds
a strong sense of Filipino identity, an opportunity to showcase Filipino heritage and thereby an office of trust under the United States, and that he is therefore disqualified for
strengthen Filipino values. The significance of the Celebrations could not have been lost on the office of elector of President and Vice-President of the United States.
petitioner, who remarked during the hearing:
The commission was created under a statute of the United States approved March
Oh, yes, certainly the State is interested in the unity of the people, we wanted to 3, 1871. That statute provides for the holding of an exhibition of American and
rekindle the love for freedom, love for country, that is the over-all goal that has to foreign arts, products, and manufactures, under the auspices of the government of
make everybody feel proud that he is a Filipino, proud of our history, proud of what the United States, and for the constitution of a commission, to consist of more than
our forefather did in their time. x x x. one delegate from each State and from each Territory of the United States, whose
functions shall continue until close of the exhibition, and whose duty it shall be to
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, prepare and superintend the execution of the plan for holding the exhibition. Under
as its Chair, is a public officer. the statute the commissioners are appointed by the President of the United States,
on the nomination of the governor of the States and Territories respectively. Various
That petitioner allegedly did not receive any compensation during his tenure is of little duties were imposed upon the commission, and under the statute provision was to
consequence. A salary is a usual but not a necessary criterion for determining the nature of be made for it to have exclusive control of the exhibit before the President should
the position. It is not conclusive. The salary is a mere incident and forms no part of the announce, by proclamation, the date and place of opening and holding the
office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary exhibition. By an act of Congress approved June 1st, 1872, the duties and functions
office, and is supposed to be accepted merely for the public good. [23] Hence, the office of of the commission were further increased and defined. That act created a
petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative corporation, called The Centennial Board of Finance, to cooperate with the
office or an office of profit, i.e., one to which salary, compensation or fees are attached. [24] But commission and to raise and disburse the funds. It was to be organized under the
it is a public office, nonetheless. direction of the commission. The seventh section of the act provides that the
grounds for exhibition shall be prepared and the buildings erected by the
Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc body make corporation, in accordance with plans which shall have been adopted by the United
said commission less of a public office. States Centennial Commission; and the rules and regulations of said corporation,
governing rates for entrance and admission fees, or otherwise affecting the rights,
The term office, it is said, embraces the idea of tenure and duration, and certainly a privileges, or interests of the exhibitors, or of the public, shall be fixed and
position which is merely temporary and local cannot ordinarily be considered an established by the United States Centennial Commission; and no grant conferring
office. But, says Chief Justice Marshall, if a duty be a continuing one, which is rights or privileges of any description connected with said grounds or buildings, or
defined by rules prescribed by the government and not by contract, which an relating to said exhibition or celebration, shall be made without the consent of the
individual is appointed by government to perform, who enters on the duties United States Centennial Commission, and said commission shall have power to
pertaining to his station without any contract defining them, if those duties continue control, change, or revoke all such grants, and shall appoint all judges and examiners
though the person be changed, -- it seems very difficult to distinguish such a charge and award all premiums. The tenth section of the act provides that it shall be the
or employment from an office of the person who performs the duties from an duty of the United States Centennial Commission to supervise the closing up of the
officer. affairs of said corporation, to audit its accounts, and submit in a report to the
President of the United States the financial results of the centennial exhibition.
At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present it can make no difference, It is apparent from this statement, which is but partial, that the duties and functions
says PEARSON, C.J., whether there be but one act or a series of acts to be done, -- of the commission were various, delicate, and important; that they could be
whether the office expires as soon as the one act is done, or is to be held for years successfully performed only by men of large experience and knowledge of affairs;
or during good behavior.[25] and that they were not merely subordinate and provisional, but in the highest degree
authoritative, discretionary, and final in their character. We think that persons
Our conclusion that petitioner is a public officer finds support in In Re Corliss.[26] There the performing such duties and exercising such functions, in pursuance of statutory
Supreme Court of Rhode Island ruled that the office of Commissioner of the United States direction and authority, are not to be regarded as mere employees, agents, or
Centennial Commission is an office of trust as to disqualify its holder as elector of the United committee men, but that they are, properly speaking, officers, and that the places
States President and Vice-President. (Under Article II of the United States Constitution, a which they hold are offices. It appears, moreover, that they were originally regarded
as officers by Congress; for the act under which they were appointed declares,
section 7, that no compensation for services shall be paid to the commissioners or Moreover, the question of whether petitioner is a public officer under the Anti-Graft and
other officers, provided for in this act, from the treasury of the United States. The Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters
only other officers provided for were the alternates appointed to serve as that are best resolved at trial.
commissioners when the commissioners were unable to attend.
To illustrate, the use of the term includes in Section 2 (b) indicates that the definition is not
Having arrived at the conclusion that the NCC performs executive functions and is, therefore, restrictive.[28] The Anti-Graft and Corrupt Practices Act is just one of several laws that define
a public office, we need no longer delve at length on the issue of whether Expocorp is a private public officers. Article 203 of the Revised Penal Code, for example, provides that a public
or a public corporation. Even assuming that Expocorp is a private corporation, petitioners officer is:
position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the
NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of x x x any person who, by direct provision of law, popular election or appointment by
his powers and functions as NCC Chair.[27] competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its branches
Finally, it is contended that since petitioner supposedly did not receive any compensation for public duties as an employee, agent or subordinate official, of any rank or class.
his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No.
3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987, [29] on the
the Ombudsman. other hand, states:

Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads: Officer as distinguished from clerk or employee, refers to a person whose
duties not being of a clerical or manual nature, involves the exercise of discretion in
SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public the performance of the functions of the government. When used with reference to
officers already penalized by existing law, the following shall constitute corrupt a person having authority to do a particular act or perform a particular person in the
practices of any public officer and are hereby declared to be unlawful: exercise of governmental power, officer includes any government employee,
agent or body having authority to do the act or exercise that function.
xxx
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and
(e) Causing any undue injury to any party, including the Government, or giving any Ethical Standards for Public Officials and Employees), one may be considered a public official
private party any unwarranted benefits, advantage or preference in the discharge of whether or not one receives compensation, thus:
his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and Public Officials include elective and appointive officials and employees, permanent
employees of offices or government corporations charged with the grant of licenses or temporary, whether in the career or non-career service including military and
or permits or other concessions. police personnel, whether or not they receive compensation, regardless of amount.

A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows: Which of these definitions should apply, if at all?

SEC. 2. Definition of terms. As used in this Act, the term Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
compensation, which is not defined by said law, has many meanings.
xxx
Under particular circumstances, compensation has been held to include allowance for
(b) Public officer includes elective and appointive officials and employees, personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
permanent or temporary, whether in the classified or unclassified or exemption expenses, payments for services, restitution or a balancing of accounts, salary, and wages.[30]
service receiving compensation, even nominal, from the government as defined in
the preceding paragraph. [Emphasis supplied.] How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be
interpreted?
It is clear from Section 2 (b), above, that the definition of a public officer is expressly limited
to the application of R.A. No. 3019. Said definition does not apply for purposes of determining Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not
the Ombudsmans jurisdiction, as defined by the Constitution and the Ombudsman Act of receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or
1989. some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled
to per diems and compensation.[31] Would such fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the
trial court from resolving them.

WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Courts
Resolution dated September 24, 2001 is hereby LIFTED.

SO ORDERED.

Puno, and Ynares-Santiago, JJ., concur.


Davide, Jr., C.J., (Chairman), no part due to close relation to a party.
G.R. No. 162059, January 22, 2008 of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the Revised
Penal Code, as amended committed as follows:
HANNAH EUNICE D. SERANA, Petitioner,
VS. That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City,
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-
named accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being
DECISION then the Student Regent of the University of the Philippines, Diliman, Quezon City,
REYES, R.T., J.: while in the performance of her official functions, committing the offense in relation
to her office and taking advantage of her position, with intent to gain, conspiring
CAN the Sandiganbayan try a government scholaran iskolar ng bayan a** accused, along with with her brother, JADE IAN D. SERANA, a private individual, did then and there
her brother, of swindling government fundsccused of being the swindler ng bayan? wilfully, unlawfully and feloniously defraud the government by falsely and
fraudulently representing to former President Joseph Ejercito Estrada that the
MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, renovation of the Vinzons Hall of the University of the Philippines will be renovated
na kapwa pinararatangan ng estafa ng pera ng bayan? and renamed as President Joseph Ejercito Estrada Student Hall, and for which
purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN
The jurisdictional question is posed in this petition for Certiorari with Prayer for the Issuance MILLION PESOS (P15,000,000.00), Philippine Currency, from the Office of the
of Temporary Restraining Order or Preliminary Injunction certiorari assailing the Resolutions[1] President, and the latter relying and believing on said false pretenses and
of the Sandiganbayan, Fifth Division, denying petitioners motion to quash the information and misrepresentation gave and delivered to said accused Land Bank Check No. 91353
herdenying petitioners motion for reconsideration. dated October 24, 2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00),
which check was subsequently encashed by accused Jade Ian D. Serana on October
The Antecedents 25, 2000 and misappropriated for their personal use and benefit, and despite
repeated demands made upon the accused for them to return aforesaid amount, the
Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines- said accused failed and refused to do so to the damage and prejudice of the
Cebu (UP). A student of a state university is known as a government scholar. She was government in the aforesaid amount.
appointed by then President Joseph Estrada on December 21, 1999 as a student regent of UP,
to serve a one-year term starting January 1, 2000 and ending on December 31, 2000. CONTRARY TO LAW. (Underscoring supplied)

In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Petitioner moved to quash the information. She claimed that the Sandiganbayan does not
Hall Annex in UP Diliman.[2] On September 4, 2000, petitioner, with her siblings and relatives, have any jurisdiction over the offense charged or over her person, in her capacity as UP student
registered with the Securities and Exchange Commission the Office of the Student Regent regent.
Foundation, Inc. (OSRFI).[3]
Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249,
One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex.[4] President enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction.[8] It has no
Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the jurisdiction over the crime of estafa.[9] It only has jurisdiction over crimes covered by Title VII,
proposed renovation. The source of the funds, according to the information, wais disputed Chapter II, Section 2 (Crimes Committed by Public Officers), Title VII, Book II of the Revised
the Office of the President. Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of
the RPC is not within the Sandiganbayans jurisdiction.
The renovation of Vinzons Hall Annex failed to materialize.[5] The succeeding student regent,
Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa ShePetitioner also arguedreasoned that it was President Estrada, and not the government, that
U.P., a system-wide alliance of student councils within the state university, consequently filed was duped. Even assuming that she received the P15,000,000.00, that amount came from
a complaint for Malversation of Public Funds and Property with the Office of the Estrada, and not from the coffers of the government.[10]
Ombudsman.[6]
Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. AShe
On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict claimed that as a student regent, she was not a public officer since she merely represented her
petitioner and her brother Jade Ian D. Serana forof estafa, docketed as Criminal Case peers, in contrast to the other regents whothat held their positions in an ex officio
No. 27819 of the Sandiganbayan.[7] The Information against her reads: capacity. She addsed that she was a simple student and did not receive any salary as a student
regent.
The undersigned Special Prosecution Officer III, Office of the Special Prosecutor,
hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime
Petitioner She further contended also claimed that she had no power or authority to receive
monies or funds. She claimed such power was vested with the Board of Regents (BOR) as a xxxx
whole. Hence, Since it was not alleged in the information that it was among her functions or
duties to receive funds, or that the crime was committed in connection with her official (g) Presidents, directors or trustees, or managers of government-owned or
functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller controlled corporations, state universities or educational institutions or
v. Sandiganbayan.[11] foundations. (Italics supplied)

The Ombudsman opposed the motion.[12] It disputed petitioners interpretation of the It is very clear from the aforequoted provision that the Sandiganbayan has original
law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch -all phrase exclusive jurisdiction over all offenses involving the officials enumerated in
in relation to office, thus, the Sandiganbayan has jurisdiction over the charges against subsection (g), irrespective of their salary grades, because the primordial
petitioner. In the same breath, the prosecution countered that the source of the money is a consideration in the inclusion of these officials is the nature of their responsibilities
matter of defense. It should be threshed out during a full-blown trial.[13] and functions.

According to the Ombudsman, petitioner, despite her protestations, iwas a public officer. As Is accused-movant included in the contemplated provision of law?
a member of the BOR, she hads the general powers of administration and exerciseds the
corporate powers of UP. Based on Mechems definition of a public office, petitioners stance A meticulous review of the existing Charter of the University of the Philippines
that she was not compensated, hence, thus not a public officer, is erroneous. Compensation reveals that the Board of Regents, to which accused-movant belongs, exclusively
is not an essential part of public office. Parenthetically, compensation has been interpreted to exercises the general powers of administration and corporate powers in the
include allowances. By this definition, petitioner was compensated.[14] university, such as: 1) To receive and appropriate to the ends specified by law such
sums as may be provided by law for the support of the university; 2) To prescribe
Sandiganbayan Disposition rules for its own government and to enact for the government of the university such
general ordinances and regulations, not contrary to law, as are consistent with the
In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioners motion for purposes of the university; and 3) To appoint, on recommendation of the President
lack of merit.[15] It ratiocinated: of the University, professors, instructors, lecturers and other employees of the
University; to fix their compensation, hours of service, and such other duties and
The focal point in controversy is the jurisdiction of the Sandiganbayan over this case. conditions as it may deem proper; to grant to them in its discretion leave of absence
under such regulations as it may promulgate, any other provisions of law to the
It is extremely erroneous to hold that only criminal offenses covered by Chapter II, contrary notwithstanding, and to remove them for cause after an investigation and
Section 2, Title VII, Book II of the Revised Penal Code are within the jurisdiction of hearing shall have been had.
this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249
provides that the Sandiganbayan also has jurisdiction over other offenses committed It is well-established in corporation law that the corporation can act only through its
by public officials and employees in relation to their office. From this provision, there board of directors, or board of trustees in the case of non-stock corporations. The
is no single doubt that this Court has jurisdiction over the offense of estafa board of directors or trustees, therefore, is the governing body of the corporation.
committed by a public official in relation to his office.
It is unmistakably evident that the Board of Regents of the University of the
Accused-movants claim that being merely a member in representation of the Philippines is performing functions similar to those of the Board of Trustees of a non-
student body, she was never a public officer since she never received any stock corporation. This draws to fore the conclusion that being a member of such
compensation nor does she fall under Salary Grade 27, is of no moment, in view of board, accused-movant undoubtedly falls within the category of public officials upon
the express provision of Section 4 of Republic Act No. 8249 which provides: whom this Court is vested with original exclusive jurisdiction, regardless of the fact
that she does not occupy a position classified as Salary Grade 27 or higher under the
Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original Compensation and Position Classification Act of 1989.
jurisdiction in all cases involving:
Finally, this court finds that accused-movants contention that the same of P15
(A) x x x Million was received from former President Estrada and not from the coffers of the
government, is a matter a defense that should be properly ventilated during the trial
(1) Officials of the executive branch occupying the positions of regional on the merits of this case.[16]
director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act On November 19, 2003, petitioner filed a motion for reconsideration.[17] The motion was
No. 6758), specifically including: denied with finality in a Resolution dated February 4, 2004.[18]
Issue certiorari and prohibition against the City Court of Manila and directed the
respondent court to dismiss the case.
Petitioner is now before this Court, contending that THE RESPONDENT COURT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on
NOT QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING THAT IS lack of jurisdiction over the offense, this Court granted the petition for prohibition
HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION.[19] and enjoined the respondent court from further proceeding in the case.

In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based
has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and on improper venue, this Court granted the petition for prohibition and enjoined the
she paid her tuition fees; (c) the offense charged was not committed in relation to her office; respondent judge from taking cognizance of the case except to dismiss the same.
(d) the funds in question personally came from President Estrada, not from the government.
In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on
Our Ruling bar by prior judgment, this Court granted the petition for certiorari and directed the
respondent judge to dismiss the case.
The petition cannot be granted.
In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss
Preliminarily, the denial of a motion to based on the Statute of Frauds, this Court granted the petition for certiorari and
quash is not correctible by certiorari. dismissed the amended complaint.

We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well- In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after
established is the rule that when a motion to quash in a criminal case is denied, the remedy is the motion to quash based on double jeopardy was denied by respondent judge and
not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating ordered him to desist from further action in the criminal case except to dismiss the
the special defenses invoked in their motion to quash.[20] Remedial measures as regards same.
interlocutory orders, such as a motion to quash, are frowned upon and often dismissed. [21] The
evident reason for this rule is to avoid multiplicity of appeals in a single action.[22] In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on
prescription was set aside on certiorari and the criminal case was dismissed by this
In Newsweek, Inc. v. Intermediate Appellate Court,[23] the Court clearly illustrated explained Court.[24]
and illustrated the rule and the exceptions, thus:
We do not find the Sandiganbayan to have committed a grave abuse of discretion.
As a general rule, an order denying a motion to dismiss is merely interlocutory and
cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule The jurisdiction of the Sandiganbayan is
41). The ordinary procedure to be followed in such a case is to file an answer, go to set by P.D. No. 1606, as amended, not by
trial and if the decision is adverse, reiterate the issue on appeal from the final R.A. No. 3019, as amended.
judgment. The same rule applies to an order denying a motion to quash, except that
instead of filing an answer a plea is entered and no appeal lies from a judgment of We first address petitioners contention that the jurisdiction of the Sandiganbayan is
acquittal. determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as
amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of
This general rule is subject to certain exceptions. If the court, in denying the motion P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan.[25] She repeats
to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave the reference in the instant petition for certiorari[26] and in her memorandum of authorities.[27]
abuse of discretion, then certiorari or prohibition lies. The reason is that it would be
unfair to require the defendant or accused to undergo the ordeal and expense of a We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears
trial if the court has no jurisdiction over the subject matter or offense, or is not the stressing that petitioner repeated this claim twice despite corrections made by the
court of proper venue, or if the denial of the motion to dismiss or motion to quash is Sandiganbayan.[28]
made with grave abuse of discretion or a whimsical and capricious exercise of
judgment. In such cases, the ordinary remedy of appeal cannot be plain and Her claim has no basis in law. It is P.D. No.1606, as amended, rather than R.A. No. 3019, as
adequate. The following are a few examples of the exceptions to the general rule. amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of
the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by
In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was
lack of jurisdiction over the subject matter, this Court granted the petition for promulgated to attain the highest norms of official conduct required of public officers and
employees, based on the concept that public officers and employees shall serve with the " _____(2) Members of Congress and officials thereof classified as Grade Grade '27' and
highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times up under the Compensation and Position Classification Act of 1989;
accountable to the people.[29]
" _____(3) Members of the judiciary without prejudice to the provisions of the
P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December Constitution;
10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.[30]
" _____(4) Chairmen and members of Constitutional Commission, without prejudice to
P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the the provisions of the Constitution; and
Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding
amendments to P.D. No. 1606, which was again amended on February 5, 1997 by " _____(5) All other national and local officials classified as Grade Grade '27' and higher
R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the under the Compensation and Position Classification Act of 1989.
Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following:
B. Other offenses of felonies whether simple or complexed with other crimes committed
by the public officials and employees mentioned in subsection a of this section in relation
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in to their office.
all cases involving:
C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1,
A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and 2, 14 and 14-A, issued in 1986.
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II
of the Revised Penal Code, where one or more of the accused are officials occupying the " _____In cases where none of the accused are occupying positions corresponding to
following positions in the government, whether in a permanent, acting or interim Salary Grade Grade '27' or higher, as prescribed in the said Republic Act No. 6758, or
capacity, at the time of the commission of the offense: military and PNP officer mentioned above, exclusive original jurisdiction thereof shall be
vested in the proper regional court, metropolitan trial court, municipal trial court, and
(1) Officials of the executive branch occupying the positions of regional director and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions
higher, otherwise classified as Grade 27 and higher, of the Compensation and Position as provided in Batas Pambansa Blg. 129, as amended.
Classification Act of 989 (Republic Act No. 6758), specifically including:
" _____The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
"_____ (a) Provincial governors, vice-governors, members of the sangguniang judgments, resolutions or order of regional trial courts whether in the exercise of their
panlalawigan, and provincial treasurers, assessors, engineers, and other city department own original jurisdiction or of their appellate jurisdiction as herein provided.
heads;
" _____The Sandiganbayan shall have exclusive original jurisdiction over petitions for the
"_____(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions,
treasurers, assessors, engineers, and other city department heads; and other ancillary writs and processes in aid of its appellate jurisdiction and over
petitions of similar nature, including quo warranto, arising or that may arise in cases filed
"_____(c ) Officials of the diplomatic service occupying the position of consul and higher; or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986:
Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme
" _____(d) Philippine army and air force colonels, naval captains, and all officers of higher Court.
rank;
" _____The procedure prescribed in Batas Pambansa Blg. 129, as well as the
"_____(e) Officers of the Philippine National Police while occupying the position of implementing rules that the Supreme Court has promulgated and may thereafter
provincial director and those holding the rank of senior superintended or higher; promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply
to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to
" _____(f) City and provincial prosecutors and their assistants, and officials and the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the
prosecutors in the Office of the Ombudsman and special prosecutor; Ombudsman, through its special prosecutor, shall represent the People of the Philippines,
except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
" _____(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or foundations. " _____In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-owned or
controlled corporations, they shall be tried jointly with said public officers and employees this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without
in the proper courts which shall exercise exclusive jurisdiction over them. regard to the succeeding paragraphs of the said provision.

" _____Any provisions of law or Rules of Court to the contrary notwithstanding, the The rule is well-established in this jurisdiction that statutes should receive a sensible
criminal action and the corresponding civil action for the recovery of civil liability shall, at construction so as to avoid an unjust or an absurd conclusion.[33] Interpretatio talis in ambiguis
all times, be simultaneously instituted with, and jointly determined in, the same semper fienda est, ut evitetur inconveniens et absurdum. Where there is ambiguity, such
proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal interpretation as will avoid inconvenience and absurdity is to be adopted. Kung saan
action being deemed to necessarily carry with it the filing of the civil action, and no right mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa.
to reserve the filing such civil action separately from the criminal action shall be
recognized: Provided, however, That where the civil action had heretofore been filed Every section, provision or clause of the statute must be expounded by reference to each other
separately but judgment therein has not yet been rendered, and the criminal case is in order to arrive at the effect contemplated by the legislature.[34] The intention of the
hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be legislator must be ascertained from the whole text of the law and every part of the act is to be
transferred to the Sandiganbayan or the appropriate court, as the case may be, for taken into view.[35] In other words, petitioners interpretation lies in direct opposition to the
consolidation and joint determination with the criminal action, otherwise the separate rule that a statute must be interpreted as a whole under the principle that the best interpreter
civil action shall be deemed abandoned." of a statute is the statute itself.[36] Optima statuti interpretatrix est ipsum statutum. Ang isang
batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang
Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said pinakamainam na interpretasyon ay ang mismong batas.
law represses certain acts of public officers and private persons alike which constitute graft or
corrupt practices or which may lead thereto.[31] Pursuant to Section 10 of R.A. No. 3019, all Section 4(B) of P.D. No. 1606 reads:
prosecutions for violation of the said law should be filed with the Sandiganbayan.[32]
B. Other offenses or felonies whether simple or complexed with other crimes
R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan committed by the public officials and employees mentioned in subsection a of this
has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not section in relation to their office.
with the jurisdiction of the Sandiganbayan but with prohibition on private individuals. We
quote: Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials
in relation to their office. We see no plausible or sensible reason to exclude estafa as one of
Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person the offenses included in Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other
having family or close personal relation with any public official to capitalize or exploit felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is
or take advantage of such family or close personal relation by directly or indirectly committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as
requesting or receiving any present, gift or material or pecuniary advantage from any amended, and that (b) the offense is committed in relation to their office.
other person having some business, transaction, application, request or contract
with the government, in which such public official has to intervene. Family relation In Perlas, Jr. v. People,[37] the Court had occasion to explain that the Sandiganbayan has
shall include the spouse or relatives by consanguinity or affinity in the third civil jurisdiction over an indictment for estafa versus a director of the National Parks Development
degree. The word close personal relation shall include close personal friendship, Committee, a government instrumentality. The Court held then:
social and fraternal connections, and professional employment all giving rise to
intimacy which assures free access to such public officer. The National Parks Development Committee was created originally as an Executive
Committee on January 14, 1963, for the development of the Quezon Memorial,
(b) It shall be unlawful for any person knowingly to induce or cause any public official Luneta and other national parks (Executive Order No. 30). It was later designated
to commit any of the offenses defined in Section 3 hereof. as the National Parks Development Committee (NPDC) on February 7, 1974
(E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia
In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of were designated Chairman and Vice-Chairman respectively (E.O. No. 3). Despite an
the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and attempt to transfer it to the Bureau of Forest Development, Department of Natural
provides for their penalties. Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant
to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office
Sandiganbayan has jurisdiction over of the President (E.O. No. 709, dated July 27, 1981).
the offense of estafa.
Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular
Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those government agency under the Office of the President and allotments for its
crimes cognizable byover which the Sandiganbayan has jurisdiction. We note that in hoisting
maintenance and operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular
Item Nos. 2, 3). tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that
determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction
The Sandiganbayans jurisdiction over estafa was reiterated with greater firmness in Bondoc over other officers enumerated in P.D. No. 1606. In Geduspan v. People,[43] We held that
v. Sandiganbayan.[38] Pertinent parts of the Courts ruling in Bondoc read: while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its
second part specifically includes other executive officials whose positions may not be of Salary
Furthermore, it is not legally possible to transfer Bondocs cases to the Regional Trial Grade 27 and higher but who are by express provision of law placed under the jurisdiction of
Court, for the simple reason that the latter would not have jurisdiction over the the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed
offenses. As already above intimated, the inability of the Sandiganbayan to hold a there by express provision of law.[44]
joint trial of Bondocs cases and those of the government employees separately
charged for the same crimes, has not altered the nature of the offenses charged, as Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over
estafa thru falsification punishable by penalties higher than prision correccional or Presidents, directors or trustees, or managers of government-owned or controlled
imprisonment of six years, or a fine of P6,000.00, committed by government corporations, state universities or educational institutions or foundations. We find no reason
employees in conspiracy with private persons, including Bondoc. These crimes are to disturb the findings of the Sandiganbayan that Petitioner falls under this category. As the
within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees
be taken cognizance of by the regular courts, apart from the fact that even if the of a non-stock corporation.[45] By express mandate of law, We find that petitioner is, indeed, a
cases could be so transferred, a joint trial would nonetheless not be possible. public officer as contemplated by P.D. No. 1606 the statute defining the jurisdiction of the
Sandiganbayan.
Petitioner UP student regent
is a public officer. Moreover, it is well established that compensation is not an essential element of public
office.[46] At most, it is merely incidental to the public office.[47]
Petitioner also contends that she is not a public officer. She does not receive any salary or
remuneration as a UP student regent. This is not the first or likely the last time that We will be We uphold that the conclusions of the Sandiganbayan that Delegation of sovereign functions
called upon toare required to define a public officer. In Khan, Jr. v. Office of the Ombudsman, is essential in the public office. An investment in an individual of some portion of the sovereign
We ruled that it is difficult to pin down the definition of a public officer. [39] The 1987 functions of the government, to be exercised by him for the benefit of the public makes one a
Constitution does not define who are public officers. Rather, the varied definitions and public officer.[48]
concepts are found in different statutes and jurisprudence.
The administration of the UP is a sovereign function in line with Article XIV of the
In Aparri v. Court of Appeals,[40] the Court held that: Constitution. UP performs a legitimate governmental function by providing advanced
instruction in literature, philosophy, the sciences, and arts, and giving professional and
A public office is the right, authority, and duty created and conferred by law, by technical training.[49] Moreover, UP is maintained by the Government and it declares no
which for a given period, either fixed by law or enduring at the pleasure of the dividends and is not a corporation created for profit.[50] Petitioner is therefore a public officer
creating power, an individual is invested with some portion of the sovereign by express mandate of P.D. No. 1606 and jurisprudence.
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 The offense charged was committed
our political system is therefore not a natural right. It exists, when it exists at all only in relation to public office, according
because and by virtue of some law expressly or impliedly creating and conferring it to the Information.
(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 Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan
which provide for special immunity as regards salary and tenure, no one can be said would still not have jurisdiction over the offense because it was not committed in relation to
to have any vested right in an office or its salary (42 Am. Jur. 881). her office.

In Laurel v. Desierto,[41] the Court adopted the definition of Mechem of a public office: According to petitioner, she had no power or authority to act without the approval of the
BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract
A public office is the right, authority and duty, created and conferred by law, by with then President Estrada; and that her acts were not ratified by the governing body of the
which, for a given period, either fixed by law or enduring at the pleasure of the state university. Resultantly, her act was done in a private capacity and not in relation to public
creating power, an individual is invested with some portion of the sovereign office.
functions of the government, to be exercised by him for the benefit of the
public. The individual so invested is a public officer.[42]
It is axiomatic that jurisdiction is determined by the averments in the information.[51] More We admonish petitioners counsel to be more careful and accurate in his citation. A lawyers
than that, jurisdiction is not affected by the pleas or the theories set up by defendant or conduct before the court should be characterized by candor and fairness. [57] The
respondent in an answer, a motion to dismiss, or a motion to quash.[52] Otherwise, jurisdiction administration of justice would gravely suffer if lawyers do not act with complete candor and
would become dependent almost entirely upon the whims of defendant or respondent. [53] honesty before the courts.[58]

In the case at bench, the information alleged, in no uncertain terms that petitioner, being then WHEREFORE, the petition is DENIED for lack of merit DUE COURSE and DISMISSED.
a student regent of U.P., while in the performance of her official functions, committing the
offense in relation to her office and taking advantage of her position, with intent to gain, SO ORDERED.
conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there
wilfully, unlawfully and feloniously defraud the government x x x. (Underscoring supplied) Ynares-Santiago, Austria-Martinez, Corona, and Nachura, JJ., concur.

Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did
not quash the information based on this ground.

Source of funds is a defense that should


be raised during trial on the merits.

It is contended anew that the amount came from President Estradas private funds and not
from the government coffers. Petitioner insists the charge has no leg to stand on.

We cannot agree. The information alleges that the funds came from the Office of the President
and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is
averred that petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00),
Philippine Currency, from the Office of the President, and the latter relying and believing on
said false pretenses and misrepresentation gave and delivered to said accused Land Bank
Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos
(P15,000,000.00).

Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000
is a matter of defense that should be ventilated during the trial on the merits of the instant
case.[54]

A lawyer owes candor, fairness


and honesty to the Court.

As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented his reference to
Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his
motion to quash, the instant petition for certiorari and his memorandum, unveils the
misquotation. We urge petitioners counsel to observe Canon 10 of the Code of Professional
Responsibility, specifically Rule 10.02 of the Rules stating that a lawyer shall not misquote or
misrepresent.

The Court stressed the importance of this rule in Pangan v. Ramos,[55] where Atty Dionisio
D. Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court
ruled that Atty. Ramos resorted to deception by using a name different from that with which
he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may
warrant suspension or disbarment.[56]
G.R. Nos. 147026-27, September 11, 2009 On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to immediately
return/refund her cash advance considering that her trip was canceled.[11] Petitioner, however,
CAROLINA R. JAVIER, PETITIONER, failed to do so. On July 6, 1998, she was issued a Summary of Disallowances[12] from which the
VS. balance for settlement amounted to P220,349.00. Despite said notice, no action was
THE FIRST DIVISION OF THE SANDIGANBAYAN AND THE PEOPLE OF THE PHILIPPINES, forthcoming from the petitioner.
RESPONDENTS.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the NBDB, filed
DECISION with the Ombudsman a complaint against petitioner for malversation of public funds and
PERALTA, J.: properties. She averred that despite the cancellation of the foreign trip, petitioner failed to
liquidate or return to the NBDB her cash advance within sixty (60) days from date of arrival, or
Before the Court is a petition for certiorari[1] under Rule 65 of the Rules of Court filed by in this case from the date of cancellation of the trip, in accordance with government accounting
petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898, entitled "People of the and auditing rules and regulations. Dr. Apolonio further charged petitioner with violation of
Philippines, Plaintiff versus Carolina R. Javier, Accused," seeking to nullify respondent Republic Act (R.A.) No. 6713[13] for failure to file her Statement of Assets and Liabilities.
Sandiganbayan's: (1) Order[2] dated November 14, 2000 in Criminal Case No. 25867, which
denied her Motion to Quash Information; (2) Resolution [3] dated January 17, 2001 in Criminal The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of R.A.
Case No. 25898, which denied her Motion for Reconsideration and Motion to Quash No. 3019,[14] as amended, and recommended the filing of the corresponding information.[15] It,
Information; and (3) Order[4] dated February 12, 2001, declaring that a motion for however, dismissed for insufficiency of evidence, the charge for violation of R.A. No. 6713.
reconsideration in Criminal Case No. 25898 would be superfluous as the issues are fairly simple
and straightforward. In an Information dated February 18, 2000, petitioner was charged with violation of Section
3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:
The factual antecedents follow.
That on or about October 8, 1997, or for sometime prior or subsequent thereto, in
On June 7, 1995, Republic Act (R.A.) No. 8047,[5] or otherwise known as the "Book Publishing the City of Quezon, Philippines and within the jurisdiction of this Honorable Court,
Industry Development Act", was enacted into law. Foremost in its policy is the State's goal in the aforenamed accused, a public officer, being then a member of the governing
promoting the continuing development of the book publishing industry, through the active Board of the National Book Development Board (NBDB), while in the performance of
participation of the private sector, to ensure an adequate supply of affordable, quality- her official and administrative functions, and acting with evident bad faith or gross
produced books for the domestic and export market. inexcusable negligence, did then and there willfully, unlawfully and criminally,
without any justifiable cause, and despite due demand by the Resident Auditor and
To achieve this purpose, the law provided for the creation of the National Book Development the Executive Director of NBDB, fail and refuse to return and/or liquidate her cash
Board (NBDB or the Governing Board, for brevity), which shall be under the administration and advances intended for official travel abroad which did not materialize, in the total
supervision of the Office of the President. The Governing Board shall be composed of eleven amount of P139,199.00 as of September 23, 1999, as required under EO No. 248 and
(11) members who shall be appointed by the President of the Philippines, five (5) of whom Sec. 5 of COA Circular No. 97-002 thereby causing damage and undue injury to the
shall come from the government, while the remaining six (6) shall be chosen from the Government.
nominees of organizations of private book publishers, printers, writers, book industry related
activities, students and the private education sector. CONTRARY TO LAW.[16]

On February 26, 1996, petitioner was appointed to the Governing Board as a private sector The case was docketed as Criminal Case No. 25867 and raffled to the First Division.
representative for a term of one (1) year.[6] During that time, she was also the President of the
Book Suppliers Association of the Philippines (BSAP). She was on a hold-over capacity in the Meanwhile, the Commission on Audit charged petitioner with Malversation of Public Funds, as
following year. On September 14, 1998, she was again appointed to the same position and for defined and penalized under Article 217 of the Revised Penal Code, for not liquidating the cash
the same period of one (1) year.[7] Part of her functions as a member of the Governing Board advance granted to her in connection with her supposed trip to Spain. During the conduct of
is to attend book fairs to establish linkages with international book publishing bodies. On the preliminary investigation, petitioner was required to submit her counter-affidavit but she
September 29, 1997, she was issued by the Office of the President a travel authority to attend failed to do so. The Ombudsman found probable cause to indict petitioner for the crime
the Madrid International Book Fair in Spain on October 8-12, 1997.[8] Based on her itinerary of charged and recommended the filing of the corresponding information against her. [17]
travel,[9] she was paid P139,199.00[10] as her travelling expenses.
Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan, which was
Unfortunately, petitioner was not able to attend the scheduled international book fair. docketed as Criminal Case No. 25898, and raffled to the Third Division, the accusatory portion
of which reads:
That on or about and during the period from October 8, 1997 to February 16, 1999, the Sandiganbayan or under any statute which covers public officials. Moreover, she claimed
or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within that she does not perform public functions and is without any administrative or political power
the jurisdiction of this Honorable Court, the above-named accused, a high ranking to speak of - that she is serving the private book publishing industry by advancing their interest
officer, being a member of the Governing Board of the National Book Development as participant in the government's book development policy.
Board and as such, is accountable for the public funds she received as cash advance
in connection with her trip to Spain from October 8-12, 1997, per LBP Check No. In an Order[24] dated November 14, 2000, the First Division[25] denied the motion to quash with
10188 in the amount of P139,199.00, which trip did not materialize, did then and the following disquisition:
there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle
and convert to her own personal use and benefit the aforementioned amount of The fact that the accused does not receive any compensation in terms of salaries and
P139,199.00, Philippine currency, to the damage and prejudice of the government in allowances, if that indeed be the case, is not the sole qualification for being in the
the aforesaid amount. government service or a public official. The National Book Development Board is a
statutory government agency and the persons who participated therein even if they
CONTRARY TO LAW.[18] are from the private sector, are public officers to the extent that they are performing
their duty therein as such.
During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty. Thereafter,
petitioner delivered to the First Division the money subject of the criminal cases, which amount Insofar as the accusation is concerned herein, it would appear that monies were
was deposited in a special trust account during the pendency of the criminal cases. advanced to the accused in her capacity as Director of the National Book
Development Board for purposes of official travel. While indeed under ordinary
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898 on May 16, circumstances a member of the board remains a private individual, still when that
2000 in order to determine jurisdictional issues. On June 3, 2000, petitioner filed with the same individual is performing her functions as a member of the board or when that person
Division a Motion for Consolidation[19] of Criminal Case No. 25898 with Criminal Case No. receives benefits or when the person is supposed to travel abroad and is given
25867, pending before the First Division. On July 6, 2000, the People filed an Urgent Ex-Parte government money to effect that travel, to that extent the private sector
Motion to Admit Amended Information[20] in Criminal Case No. 25898, which was granted. representative is a public official performing public functions; if only for that reason,
Accordingly, the Amended Information dated June 28, 2000 reads as follows: and not even considering situation of her being in possession of public funds even as
a private individual for which she would also covered by provisions of the Revised
That on or about and during the period from October 8, 1997 to February 16, 1999, Penal Code, she is properly charged before this Court.
or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, a high ranking On November 15, 2000, the First Division accepted the consolidation of the criminal cases
officer, being a member of the Governing Board of the National Book Development against petitioner and scheduled her arraignment on November 17, 2000, for Criminal Case
Board equated to Board Member II with a salary grade 28 and as such, is accountable No. 25898. On said date, petitioner manifested that she is not prepared to accept the propriety
for the public funds she received as case advance in connection with her trip to Spain of the accusation since it refers to the same subject matter as that covered in Criminal Case
from October 8-12, 1997, per LBP Check No. 10188 in the amount of P139,199.00, No. 25867 for which the Sandiganbayan gave her time to file a motion to quash. On November
which trip did not materialize, did then and there willfully, unlawfully and feloniously 22, 2000, petitioner filed a Motion to Quash the Information[26] in Criminal Case No. 25898, by
take, malverse, misappropriate, embezzle and convert to her own personal use and invoking her right against double jeopardy. However, her motion was denied in open court.
benefit the aforementioned amount of P139,199.00, Philippine currency, to the She then filed a motion for reconsideration.
damage and prejudice of the government in the aforesaid amount.
On January 17, 2001, the Sandiganbayan issued a Resolution[27] denying petitioner's motion
CONTRARY TO LAW.[21] with the following disquisition:

In its Resolution dated October 5, 2000, the Third Division ordered the consolidation of The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as
Criminal Case No. 25898 with Criminal Case No. 25867. [22] amended so provides, thus:

On October 10, 2000, petitioner filed a Motion to Quash Information,[23] averring that the Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as the information did not jurisdiction in all cases involving:
allege that she is a public official who is classified as Grade "27" or higher. Neither did the
information charge her as a co-principal, accomplice or accessory to a public officer committing xxxx
an offense under the Sandiganbayan's jurisdiction. She also averred that she is not a public
officer or employee and that she belongs to the Governing Board only as a private sector
representative under R.A. No. 8047, hence, she may not be charged under R.A. No. 3019 before
(g) Presidents, directors or trustees, or managers of government-owned or of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary
controlled corporations, state universities or educational institutions or remedy of appeal cannot be plain and adequate.[30]
foundations;
To substantiate her claim, petitioner maintained that she is not a public officer and only a
xxxx private sector representative, stressing that her only function among the eleven (11) basic
purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status
The offense is office-related because the money for her travel abroad was given to for the book publishing industry. At the time of her appointment to the NDBD Board, she was
her because of her Directorship in the National Book Development Board. the President of the BSAP, a book publishers association. As such, she could not be held liable
for the crimes imputed against her, and in turn, she is outside the jurisdiction of the
Furthermore, there are also allegations to hold the accused liable under Article 222 Sandiganbayan.
of the Revised Penal Code which reads:
The NBDB is the government agency mandated to develop and support the Philippine book
Art. 222. Officers included in the preceding provisions. - The provisions of publishing industry. It is a statutory government agency created by R.A. No. 8047, which was
this chapter shall apply to private individuals who, in any capacity enacted into law to ensure the full development of the book publishing industry as well as for
whatever, have charge of any insular, provincial or municipal funds, the creation of organization structures to implement the said policy. To achieve this end, the
revenues, or property and to any administrator or depository of funds or Governing Board of the NBDB was created to supervise the implementation. The Governing
property attached , seized or deposited by public authority, even if such Board was vested with powers and functions, to wit:
property belongs to a private individual.
a) assume responsibility for carrying out and implementing the policies, purposes and
Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the objectives provided for in this Act;
ground of litis pendencia is denied since in this instance, these two Informations b) formulate plans and programs as well as operational policies and guidelines for
speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal undertaking activities relative to promoting book development, production and
Code, neither of which precludes prosecution of the other. distribution as well as an incentive scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and
Petitioner hinges the present petition on the ground that the Sandiganbayan has committed especially authors are paid justly and promptly royalties due them for reproduction
grave abuse of discretion amounting to lack of jurisdiction for not quashing the two of their works in any form and number and for whatever purpose;
informations charging her with violation of the Anti-Graft Law and the Revised Penal Code on d) conduct or contract research on the book publishing industry including monitoring,
malversation of public funds. She advanced the following arguments in support of her petition, compiling and providing data and information of book production;
to wit: first, she is not a public officer, and second, she was being charged under two (2) e) provide a forum for interaction among private publishers, and, for the purpose,
informations, which is in violation of her right against double jeopardy. establish and maintain liaison will all the segments of the book publishing industry;
f) ask the appropriate government authority to ensure effective implementation of the
A motion to quash an Information is the mode by which an accused assails the validity of a National Book Development Plan;
criminal complaint or Information filed against him for insufficiency on its face in point of law, g) promulgate rules and regulations for the implementation of this Act in consultation
or for defects which are apparent in the face of the Information.[28] with other agencies concerned, except for Section 9 hereof on incentives for book
development, which shall be the concern of appropriate agencies involved;
Well-established is the rule that when a motion to quash in a criminal case is denied, the h) approve, with the concurrence of the Department of Budget and Management
remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to (DBM), the annual and supplemental budgets submitted to it by the Executive
reiterating the special defenses invoked in their motion to quash. Remedial measures as director;
regards interlocutory orders, such as a motion to quash, are frowned upon and often i) own, lease, mortgage, encumber or otherwise real and personal property for the
dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single attainment of its purposes and objectives;
action.[29] j) enter into any obligation or contract essential to the proper administration of its
affairs, the conduct of its operations or the accomplishment of its purposes and
The above general rule, however admits of several exceptions, one of which is when the court, objectives;
in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction k) receive donations, grants, legacies, devices and similar acquisitions which shall form
or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would a trust fund of the Board to accomplish its development plans on book publishing;
be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if l) import books or raw materials used in book publishing which are exempt from all
the court has no jurisdiction over the subject matter or offense, or is not the court of proper taxes, customs duties and other charges in behalf of persons and enterprises
venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse engaged in book publishing and its related activities duly registered with the board;
m) promulgate rules and regulations governing the matter in which the general affairs On the other hand, the Revised Penal Code defines a public officer as any person who, by direct
of the Board are to be exercised and amend, repeal, and modify such rules and provision of the law, popular election, popular election or appointment by competent
regulations whenever necessary; authority, shall take part in the performance of public functions in the Government of the
n) recommend to the President of the Philippines nominees for the positions of the Philippine Islands, or shall perform in said Government or in any of its branches public duties
Executive Officer and Deputy Executive Officer of the Board; as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a
o) adopt rules and procedures and fix the time and place for holding meetings: public officer.[34]
Provided, That at least one (1) regular meeting shall be held monthly;
p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other Where, as in this case, petitioner performs public functions in pursuance of the objectives of
related activities on book development such as indigenous authorship, intellectual R.A. No. 8047, verily, she is a public officer who takes part in the performance of public
property rights, use of alternative materials for printing, distribution and others; and functions in the government whether as an employee, agent, subordinate official, of any rank
q) exercise such other powers and perform such other duties as may be required by the or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of
law.[31] several rules and regulations implementing R.A. No. 8047. She was supposed to represent the
country in the canceled book fair in Spain.
A perusal of the above powers and functions leads us to conclude that they partake of the
nature of public functions. A public office is the right, authority and duty, created and In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is
conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure whether, as a public officer, petitioner is within the jurisdiction of the Sandiganbayan.
of the creating power, an individual is invested with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the public. The individual so Presently,[35] the Sandiganbayan has jurisdiction over the following:
invested is a public officer.[32]
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction
Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, in all cases involving:
the law invested her with some portion of the sovereign functions of the government, so that
the purpose of the government is achieved. In this case, the government aimed to enhance A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft
the book publishing industry as it has a significant role in the national development. Hence, and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII,
the fact that she was appointed from the public sector and not from the other branches or Book II of the Revised Penal Code, where one or more of the accused are officials
agencies of the government does not take her position outside the meaning of a public office. occupying the following positions in the government, whether in a permanent, acting
She was appointed to the Governing Board in order to see to it that the purposes for which the or interim capacity, at the time of the commission of the offense:
law was enacted are achieved. The Governing Board acts collectively and carries out its
mandate as one body. The purpose of the law for appointing members from the private sector (1) Officials of the executive branch occupying the positions of regional director and
is to ensure that they are also properly represented in the implementation of government higher, otherwise classified as Grade "27" and higher, of the Compensation and
objectives to cultivate the book publishing industry. Position Classification Act of 989 (Republic Act No. 6758), specifically including:

Moreover, the Court is not unmindful of the definition of a public officer pursuant to the Anti- xxxx
Graft Law, which provides that a public officer includes elective and appointive officials and
employees, permanent or temporary, whether in the classified or unclassified or exempt (2) Members of Congress and officials thereof classified as Grade "Grade '27'" and
service receiving compensation, even nominal, from the government.[33] up under the Compensation and Position Classification Act of 1989;

Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or (3) Members of the judiciary without prejudice to the provisions of the Constitution;
appointed to a public office. Petitioner was appointed by the President to the Governing Board
of the NDBD. Though her term is only for a year that does not make her private person (4) Chairmen and members of Constitutional Commission, without prejudice to the
exercising a public function. The fact that she is not receiving a monthly salary is also of no provisions of the Constitution; and
moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive
per diem and such allowances as may be authorized for every meeting actually attended and (5) All other national and local officials classified as Grade "Grade '27'" and higher
subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of under the Compensation and Position Classification Act of 1989.
one's appointment, and whether the compensation one receives from the government is only
nominal, is immaterial because the person so elected or appointed is still considered a public xxxx
officer.
Notably, the Director of Organization, Position Classification and Compensation Bureau, of the
Department of Budget and management provided the following information regarding the
compensation and position classification and/or rank equivalence of the member of the WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of the
Governing Board of the NBDB, thus: Sandiganbayan are AFFIRMED. Costs against petitioner.

Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is SO ORDERED.
composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and
nine (9) Members, four (4) of whom are ex-officio and the remaining five (5) Ynares-Santiago, (Chairperson), Chico-Nazario, Velasco, Jr., and Nachura, JJ., concur.
members represent the private sector. The said five members of the Board do not
receive any salary and as such their position are not classified and are not assigned
any salary grade.

For purposes however of determining the rank equivalence of said positions,


notwithstanding that they do not have any salary grade assignment, the same may
be equated to Board Member II, SG-28.[36]

Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to
the employees classified as SG-28, included in the phrase "all other national and local officials
classified as `Grade 27' and higher under the Compensation and Position Classification Act of
1989."

Anent the issue of double jeopardy, We can not likewise give in to the contentions advanced
by petitioner. She argued that her right against double jeopardy was violated when the
Sandiganbayan denied her motion to quash the two informations filed against her.

We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867 and
25898 refer to offenses penalized by different statues, R.A. No. 3019 and RPC, respectively. It
is elementary that for double jeopardy to attach, the case against the accused must have been
dismissed or otherwise terminated without his express consent by a court of competent
jurisdiction, upon valid information sufficient in form and substance and the accused pleaded
to the charge.[37] In the instant case, petitioner pleaded not guilty to the Information for
violation of the Anti-Graft Law. She was not yet arraigned in the criminal case for malversation
of public funds because she had filed a motion to quash the latter information. Double
jeopardy could not, therefore, attach considering that the two cases remain pending before
the Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases
against her.

It is well settled that for a claim of double jeopardy to prosper, the following requisites must
concur: (1) there is a complaint or information or other formal charge sufficient in form and
substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction;
(3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or
acquitted or the case is otherwise dismissed or terminated without his express consent. [38] The
third and fourth requisites are not present in the case at bar.

In view of the foregoing, We hold that the present petition does not fall under the exceptions
wherein the remedy of certiorari may be resorted to after the denial of one's motion to quash
the information. And even assuming that petitioner may avail of such remedy, We still hold
that the Sandiganbayan did not commit grave abuse of discretion amounting to lack of or in
excess of jurisdiction.
G.R. No. 191644, February 19, 2013 Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to
holding the two offices concurrently in acting capacities is settled, which is sufficient for
DENNIS A.B. FUNA, PETITIONER, purposes of resolving the constitutional question that petitioner raises herein.
VS.
ACTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT CAPACITIES The Case
AS ACTING SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS ACTING SOLICITOR
GENERAL, EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT, In Funa v. Ermita,[5] the Court resolved a petition for certiorari, prohibition and mandamus
RESPONDENTS. brought by herein petitioner assailing the constitutionality of the designation of then
Undersecretary of the Department of Transportation and Communications (DOTC) Maria Elena
DECISION H. Bautista as concurrently the Officer-in-Charge of the Maritime Industry Authority. The
BERSAMIN, J.: petitioner has adopted here the arguments he advanced in Funa v. Ermita, and he has rested
his grounds of challenge mainly on the pronouncements in Civil Liberties Union v. Executive
Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice- Secretary[6] and Public Interest Center, Inc. v. Elma.[7]
President, the Members of the Cabinet, and their deputies or assistants from holding any other
office or employment during their tenure unless otherwise provided in the Constitution. What may differentiate this challenge from those in the others is that the appointments being
Complementing the prohibition is Section 7, paragraph (2), Article IX-B of the 1987 hereby challenged were in acting or temporary capacities. Still, the petitioner submits that the
Constitution, which bans any appointive official from holding any other office or employment prohibition under Section 13, Article VII of the 1987 Constitution does not distinguish between
in the Government or any subdivision, agency or instrumentality thereof, including an appointment or designation of a Member of the Cabinet in an acting or temporary capacity,
government-owned or controlled corporations or their subsidiaries, unless otherwise allowed on the one hand, and one in a permanent capacity, on the other hand; and that Acting
by law or the primary functions of his position. Secretaries, being nonetheless Members of the Cabinet, are not exempt from the
constitutional ban. He emphasizes that the position of the Solicitor General is not an ex officio
These prohibitions under the Constitution are at the core of this special civil action for position in relation to the position of the Secretary of Justice, considering that the Office of the
certiorari and prohibition commenced on April 7, 2010 to assail the designation of respondent Solicitor General (OSG) is an independent and autonomous office attached to the Department
Hon. Alberto C. Agra, then the Acting Secretary of Justice, as concurrently the Acting Solicitor of Justice (DOJ).[8] He insists that the fact that Agra was extended an appointment as the Acting
General. Solicitor General shows that he did not occupy that office in an ex officio capacity because an
ex officio position does not require any further warrant or appointment.
Antecedents
Respondents contend, in contrast, that Agras concurrent designations as the Acting Secretary
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo appointed of Justice and Acting Solicitor General were only in a temporary capacity, the only effect of
Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes VST which was to confer additional duties to him. Thus, as the Acting Solicitor General and Acting
Devanadera in order to vie for a congressional seat in Quezon Province; that on March 5, 2010, Secretary of Justice, Agra was not holding both offices in the strict constitutional sense. [9]
President Arroyo designated Agra as the Acting Solicitor General in a concurrent capacity;[1] They argue that an appointment, to be covered by the constitutional prohibition, must be
that on April 7, 2010, the petitioner, in his capacity as a taxpayer, a concerned citizen and a regular and permanent, instead of a mere designation.
lawyer, commenced this suit to challenge the constitutionality of Agras concurrent
appointments or designations, claiming it to be prohibited under Section 13, Article VII of the Respondents further contend that, even on the assumption that Agras concurrent designation
1987 Constitution; that during the pendency of the suit, President Benigno S. Aquino III constituted holding of multiple offices, his continued service as the Acting Solicitor General
appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the was akin to a hold-over; that upon Agras designation as the Acting Secretary of Justice, his
Solicitor General and commenced his duties as such on August 5, 2010.[2] term as the Acting Solicitor General expired in view of the constitutional prohibition against
holding of multiple offices by the Members of the Cabinet; that under the principle of hold-
Agra renders a different version of the antecedents. He represents that on January 12, 2010, over, Agra continued his service as the Acting Solicitor General until his successor is elected
he was then the Government Corporate Counsel when President Arroyo designated him as the and qualified[10] to prevent a hiatus in the government pending the time when a successor
Acting Solicitor General in place of Solicitor General Devanadera who had been appointed as may be chosen and inducted into office;[11] and that during his continued service as the Acting
the Secretary of Justice;[3] that on March 5, 2010, President Arroyo designated him also as the Solicitor General, he did not receive any salaries and emoluments from the OSG after becoming
Acting Secretary of Justice vice Secretary Devanadera who had meanwhile tendered her the Acting Secretary of Justice on March 5, 2010.[12]
resignation in order to run for Congress representing a district in Quezon Province in the May
2010 elections; that he then relinquished his position as the Government Corporate Counsel; Respondents point out that the OSGs independence and autonomy are defined by the powers
and that pending the appointment of his successor, Agra continued to perform his duties as and functions conferred to that office by law, not by the person appointed to head such
the Acting Solicitor General.[4] office;[13] and that although the OSG is attached to the DOJ, the DOJs authority, control and
supervision over the OSG are limited only to budgetary purposes.[14]
In his reply, petitioner counters that there was no prevailing special circumstance that of transcendental import, has waived, or relaxed, thus allowing non-traditional
justified the non-application to Agra of Section 13, Article VII of the 1987 Constitution; [15] that plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the
the temporariness of the appointment or designation is not an excuse to disregard the public interest, albeit they may not have been personally injured by the operation
constitutional ban against holding of multiple offices by the Members of the Cabinet; [16] that of a law or any other government act. In David, the Court laid out the bare
Agras invocation of the principle of hold-over is misplaced for being predicated upon an minimum norm before the so-called non-traditional suitors may be extended
erroneous presentation of a material fact as to the time of his designation as the Acting standing to sue, thusly:
Solicitor General and Acting Secretary of Justice; that Agras concurrent designations further
violated the Administrative Code of 1987 which mandates that the OSG shall be autonomous 1.) For taxpayers, there must be a claim of illegal disbursement of public
and independent.[17] funds or that the tax measure is unconstitutional;

Issue 2.) For voters, there must be a showing of obvious interest in the validity
of the election law in question;
Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional prohibition against dual or multiple offices 3.) For concerned citizens, there must be a showing that the issues raised
for the Members of the Cabinet and their deputies and assistants? are of transcendental importance which must be settled early; and

Ruling 4.) For legislators, there must be a claim that the official action complained
of infringes their prerogatives as legislators.
The petition is meritorious.
This case before Us is of transcendental importance, since it obviously has far-
The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting reaching implications, and there is a need to promulgate rules that will guide the
Solicitor General was unconstitutional and void for being in violation of the constitutional bench, bar, and the public in future analogous cases. We, thus, assume a liberal
prohibition under Section 13, Article VII of the 1987 Constitution. stance and allow petitioner to institute the instant petition.[20] (Bold emphasis
supplied)
1.
Requisites of judicial review not in issue In Funa v. Ermita,[21] the Court recognized the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer because the issue raised therein involved a subject of
The power of judicial review is subject to limitations, to wit: (1) there must be an actual case transcendental importance whose resolution was necessary to promulgate rules to guide the
or controversy calling for the exercise of judicial power; (2) the person challenging the act must Bench, Bar, and the public in similar cases.
have the standing to assail the validity of the subject act or issuance, that is, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the
injury as a result of its enforcement; (3) the question of constitutionality must be raised at the Solicitor General during the pendency of this suit render this suit and the issue tendered herein
earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the moot and academic?
case.[18]
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
Here, the OSG does not dispute the justiciability and ripeness for consideration and resolution supervening events, so that a declaration thereon would be of no practical use or value. [22]
by the Court of the matter raised by the petitioner. Also, the locus standi of the petitioner as a Although the controversy could have ceased due to the intervening appointment of and
taxpayer, a concerned citizen and a lawyer to bring a suit of this nature has already been settled assumption by Cadiz as the Solicitor General during the pendency of this suit, and such
in his favor in rulings by the Court on several other public law litigations he brought. In Funa v. cessation of the controversy seemingly rendered moot and academic the resolution of the
Villar,[19] for one, the Court has held: issue of the constitutionality of the concurrent holding of the two positions by Agra, the Court
should still go forward and resolve the issue and not abstain from exercising its power of
To have legal standing, therefore, a suitor must show that he has sustained or will judicial review because this case comes under several of the well-recognized exceptions
sustain a direct injury as a result of a government action, or have a material established in jurisprudence. Verily, the Court did not desist from resolving an issue that a
interest in the issue affected by the challenged official act. However, the Court has supervening event meanwhile rendered moot and academic if any of the following recognized
time and again acted liberally on the locus standi requirements and has accorded exceptions obtained, namely: (1) there was a grave violation of the Constitution; (2) the case
certain individuals, not otherwise directly injured, or with material interest involved a situation of exceptional character and was of paramount public interest; (3) the
affected, by a Government act, standing to sue provided a constitutional issue of constitutional issue raised required the formulation of controlling principles to guide the
critical significance is at stake. The rule on locus standi is after all a mere procedural Bench, the Bar and the public; and (4) the case was capable of repetition, yet evading review.[23]
technicality in relation to which the Court, in a catena of cases involving a subject
It is the same here. The constitutionality of the concurrent holding by Agra of the two positions general rule applicable to all elective and appointive public officials and
in the Cabinet, albeit in acting capacities, was an issue that comes under all the recognized employees, while Section 13, Article VII is meant to be the exception applicable
exceptions. The issue involves a probable violation of the Constitution, and relates to a only to the President, the Vice-President, Members of the Cabinet, their deputies
situation of exceptional character and of paramount public interest by reason of its and assistants.
transcendental importance to the people. The resolution of the issue will also be of the
greatest value to the Bench and the Bar in view of the broad powers wielded through said xxxx
positions. The situation further calls for the review because the situation is capable of
repetition, yet evading review.[24] In other words, many important and practical benefits are Since the evident purpose of the framers of the 1987 Constitution is to impose a
still to be gained were the Court to proceed to the ultimate resolution of the constitutional stricter prohibition on the President, Vice-President, members of the Cabinet, their
issue posed. deputies and assistants with respect to holding multiple offices or employment in
the government during their tenure, the exception to this prohibition must be read
2. with equal severity. On its face, the language of Section 13, Article VII is prohibitory
Unconstitutionality of Agras concurrent designation as Acting so that it must be understood as intended to be a positive and unequivocal negation
Secretary of Justice and Acting Solicitor General of the privilege of holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be understood
At the center of the controversy is the correct application of Section 13, Article VII of the 1987 as intended to be a positive and unequivocal negation. The phrase unless otherwise
Constitution, viz: provided in this Constitution must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the Vice-President
Section 13. The President, Vice-President, the Members of the Cabinet, and their being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or
deputies or assistants shall not, unless otherwise provided in this Constitution, hold acting as President in those instances provided under Section 7, pars. (2) and (3),
any other office or employment during their tenure. They shall not, during said Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and
tenure, directly or indirectly practice any other profession, participate in any Bar Council by virtue of Section 8 (1), Article VIII. (Bold emphasis supplied.)
business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or Being designated as the Acting Secretary of Justice concurrently with his position of Acting
instrumentality thereof, including government-owned or controlled corporations or Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra,
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold
office. any other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.[27]
A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, to wit: It was of no moment that Agras designation was in an acting or temporary capacity. The text
of Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to
Section 7. x x x impose a stricter prohibition on the President and the Members of his Cabinet in so far as
holding other offices or employments in the Government or in government-owned or
Unless otherwise allowed by law or the primary functions of his position, no government controlled-corporations was concerned.[28] In this regard, to hold an office means
appointive official shall hold any other office or employment in the Government or to possess or to occupy the office, or to be in possession and administration of the office, which
any subdivision, agency or instrumentality thereof, including government-owned or implies nothing less than the actual discharge of the functions and duties of the office.[29]
controlled corporations or their subsidiaries. Indeed, in the language of Section 13 itself, supra, the Constitution makes no reference to the
nature of the appointment or designation. The prohibition against dual or multiple offices
The differentiation of the two constitutional provisions was well stated in Funa v. Ermita,[25] a being held by one official must be construed as to apply to all appointments or designations,
case in which the petitioner herein also assailed the designation of DOTC Undersecretary as whether permanent or temporary, for it is without question that the avowed objective of
concurrent Officer-in-Charge of the Maritime Industry Authority, with the Court reiterating its Section 13, supra, is to prevent the concentration of powers in the Executive Department
pronouncement in Civil Liberties Union v. The Executive Secretary [26] on the intent of the officials, specifically the President, the Vice-President, the Members of the Cabinet and their
Framers behind these provisions of the Constitution, viz: deputies and assistants.[30] To construe differently is to open the veritable floodgates of
circumvention of an important constitutional disqualification of officials in the Executive
Thus, while all other appointive officials in the civil service are allowed to hold other Department and of limitations on the Presidents power of appointment in the guise of
office or employment in the government during their tenure when such is allowed temporary designations of Cabinet Members, undersecretaries and assistant secretaries as
by law or by the primary functions of their positions, members of the Cabinet, their officers-in-charge of government agencies, instrumentalities, or government-owned or
deputies and assistants may do so only when expressly authorized by the controlled corporations.[31]
Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the
According to Public Interest Center, Inc. v. Elma,[32] the only two exceptions against the holding The import of an ex officio capacity has been fittingly explained in Civil Liberties Union v.
of multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article Executive Secretary,[36] as follows:
VII, authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied
by Executive officials specified in Section 13, Article VII without additional compensation in ex x x x. The term ex officio means from office; by virtue of office. It refers to an
officio capacities as provided by law and as required by the primary functions of the officials authority derived from official character merely, not expressly conferred upon the
offices. In this regard, the decision in Public Interest Center, Inc. v. Elma adverted to the individual character, but rather annexed to the official position. Ex officio likewise
resolution issued on August 1, 1991 in Civil Liberties Union v. The Executive Secretary, whereby denotes an act done in an official character, or as a consequence of office, and
the Court held that the phrase the Members of the Cabinet, and their deputies or assistants without any other appointment or authority other than that conferred by the office.
found in Section 13, supra, referred only to the heads of the various executive departments, An ex officio member of a board is one who is a member by virtue of his title to a
their undersecretaries and assistant secretaries, and did not extend to other public officials certain office, and without further warrant or appointment. x x x.
given the rank of Secretary, Undersecretary or Assistant Secretary.[33] Hence, in Public Interest
Center, Inc. v. Elma, the Court opined that the prohibition under Section 13 did not cover Elma, xxxx
a Presidential Assistant with the rank of Undersecretary.[34]
The ex officio position being actually and in legal contemplation part of the principal
It is equally remarkable, therefore, that Agras designation as the Acting Secretary of Justice office, it follows that the official concerned has no right to receive additional
was not in an ex officio capacity, by which he would have been validly authorized to compensation for his services in the said position. The reason is that these services
concurrently hold the two positions due to the holding of one office being the consequence of are already paid for and covered by the compensation attached to his principal
holding the other. Being included in the stricter prohibition embodied in Section 13, supra, office. x x x.
Agra cannot liberally apply in his favor the broad exceptions provided in Section 7, paragraph
2, Article IX-B of the Constitution (Unless otherwise allowed by law or the primary functions Under the Administrative Code of 1987, the DOJ is mandated to provide the government with
of his position) to justify his designation as Acting Secretary of Justice concurrently with his a principal law agency which shall be both its legal counsel and prosecution arm; administer
designation as Acting Solicitor General, or vice versa. Thus, the Court has said the criminal justice system in accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of the correctional
[T]he qualifying phrase unless otherwise provided in this Constitution in Section system; implement the laws on the admission and stay of aliens, citizenship, land titling system,
13, Article VII cannot possibly refer to the broad exceptions provided under Section and settlement of land problems involving small landowners and members of indigenous
7, Article IX-B of the 1987 Constitution. To construe said qualifying phrase as cultural minorities; and provide free legal services to indigent members of the society.[37] The
respondents would have us do, would render nugatory and meaningless the DOJs specific powers and functions are as follows:
manifest intent and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet, their deputies (1) Act as principal law agency of the government and as legal counsel and
and assistants with respect to holding other offices or employment in the representative thereof, whenever so required;
government during their tenure. Respondents interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would (2) Investigate the commission of crimes, prosecute offenders and administer the
obliterate the distinction so carefully set by the framers of the Constitution as to probation and correction system;
when the high-ranking officials of the Executive Branch from the President to
Assistant Secretary, on the one hand, and the generality of civil servants from the (3) Extend free legal assistance/representation to indigents and poor litigants in
rank immediately below Assistant Secretary downwards, on the other, may hold any criminal cases and non-commercial civil disputes;
other office or position in the government during their tenure. [35]
(4) Preserve the integrity of land titles through proper registration;
To underscore the obvious, 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 (5) Investigate and arbitrate untitled land disputes involving small landowners and
his concurrent designations from the coverage of the stricter prohibition under Section 13, members of indigenous cultural communities;
supra, he needed to establish herein that his concurrent designation was expressly allowed by
the Constitution. But, alas, he did not do so. (6) Provide immigration and naturalization regulatory services and implement the
laws governing citizenship and the admission and stay of aliens;
To be sure, Agras concurrent designations as Acting Secretary of Justice and Acting Solicitor
General did not come within the definition of an ex officio capacity. Had either of his (7) Provide legal services to the national government and its functionaries, including
concurrent designations been in an ex officio capacity in relation to the other, the Court might government-owned or controlled corporations and their subsidiaries; and
now be ruling in his favor.
(8) Perform such other functions as may be provided by law.[38]
8. Deputize legal officers of government departments, bureaus, agencies and offices
On the other hand, the Administrative Code of 1987 confers upon the Office of the Solicitor to assist the Solicitor General and appear or represent the Government in cased
General the following powers and functions, to wit: involving their respective offices, brought before the courts and exercise supervision
and control over such legal Officers with respect to such cases.
The Office of the Solicitor General shall represent the Government of the Philippines,
its agencies and instrumentalities and its officials and agents in any litigation, 9. Call on any department, bureau, office, agency or instrumentality of the
proceeding, investigation or matter requiring the services of lawyers. When Government for such service, assistance and cooperation as may be necessary in
authorized by the President or head of the office concerned, it shall also represent fulfilling its functions and responsibilities and for this purpose enlist the services of
government owned or controlled corporations. The Office of the Solicitor General any government official or employee in the pursuit of his tasks.
shall discharge duties requiring the services of lawyers. It shall have the following
specific powers and functions: 10. Departments, bureaus, agencies, offices, instrumentalities and corporations to
whom the Office of the Solicitor General renders legal services are authorized to
1. Represent the Government in the Supreme Court and the Court of Appeals in all disburse funds from their sundry operating and other funds for the latter Office. For
criminal proceedings; represent the Government and its officers in the Supreme this purpose, the Solicitor General and his staff are specifically authorized to receive
Court, the Court of Appeals, and all other courts or tribunals in all civil actions and allowances as may be provided by the Government offices, instrumentalities and
special proceedings in which the Government or any officer thereof in his official corporations concerned, in addition to their regular compensation.
capacity is a party.
11. Represent, upon the instructions of the President, the Republic of the Philippines
2. Investigate, initiate court action, or in any manner proceed against any person, in international litigations, negotiations or conferences where the legal position of
corporation or firm for the enforcement of any contract, bond, guarantee, mortgage, the Republic must be defended or presented.
pledge or other collateral executed in favor of the Government. Where proceedings
are to be conducted outside of the Philippines the Solicitor General may employ 12. Act and represent the Republic and/or the people before any court, tribunal,
counsel to assist in the discharge of the aforementioned responsibilities. body or commission in any matter, action or proceedings which, in his opinion affects
the welfare of the people as the ends of justice may require; and
3. Appear in any court in any action involving the validity of any treaty, law, executive
order or proclamation, rule or regulation when in his judgment his intervention is 13. Perform such other functions as may be provided by law.[39]
necessary or when requested by the Court.
The foregoing provisions of the applicable laws show that one position was not derived from
4. Appear in all proceedings involving the acquisition or loss of Philippine citizenship. the other. Indeed, the powers and functions of the OSG are neither required by the primary
functions nor included by the powers of the DOJ, and vice versa. The OSG, while attached to
5. Represent the Government in all land registration and related proceedings. the DOJ,[40] is not a constituent unit of the latter,[41] as, in fact, the Administrative Code of 1987
Institute actions for the reversion to the Government of lands of the public domain decrees that the OSG is independent and autonomous.[42] With the enactment of Republic Act
and improvements thereon as well as lands held in violation of the Constitution. No. 9417,[43] the Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, salaries, allowances, benefits and privileges
6. Prepare, upon request of the President or other proper officer of the National as those of the Presiding Justice of the Court of Appeals.[44]
Government, rules and guidelines for government entities governing the preparation
of contracts, making investments, undertaking of transactions, and drafting of forms Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally
or other writings needed for official use, with the end in view of facilitating their demanding tasks of the Secretary of Justice, is obviously too much for any one official to bear.
enforcement and insuring that they are entered into or prepared conformably with Apart from the sure peril of political pressure, the concurrent holding of the two positions,
law and for the best interests of the public. even if they are not entirely incompatible, may affect sound government operations and the
proper performance of duties. Heed should be paid to what the Court has pointedly observed
7. Deputize, whenever in the opinion of the Solicitor General the public interest in Civil Liberties Union v. Executive Secretary: [45]
requires, any provincial or city fiscal to assist him in the performance of any function
or discharge of any duty incumbent upon him, within the jurisdiction of the aforesaid Being head of an executive department is no mean job. It is more than a full-time
provincial or city fiscal. When so deputized, the fiscal shall be under the control and job, requiring full attention, specialized knowledge, skills and expertise. If maximum
supervision of the Solicitor General with regard to the conduct of the proceedings benefits are to be derived from a department heads ability and expertise, he should
assigned to the fiscal, and he may be required to render reports or furnish be allowed to attend to his duties and responsibilities without the distraction of
information regarding the assignment. other governmental offices or employment. He should be precluded from dissipating
his efforts, attention and energy among too many positions of responsibility, which
may result in haphazardness and inefficiency. Surely the advantages to be derived provision are the "Members of the Cabinet, their deputies and assistants." These
from this concentration of attention, knowledge and expertise, particularly at this terms must be given their common and general acceptation as referring to the heads
stage of our national and economic development, far outweigh the benefits, if any, of the executive departments, their undersecretaries and assistant secretaries.
that may be gained from a department head spreading himself too thin and taking Public officials given the rank equivalent to a Secretary, Undersecretary, or Assistant
in more than what he can handle. Secretary are not covered by the prohibition, nor is the Solicitor General affected
thereby. (Italics supplied).
It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13, supra, due to such position being It is clear from the foregoing that the strict prohibition under Section 13, Article VII
merely vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless of the 1987 Constitution is not applicable to the PCGG Chairman nor to the CPLC, as
remained covered by the general prohibition under Section 7, supra. Hence, his concurrent neither of them is a secretary, undersecretary, nor an assistant secretary, even if the
designations were still subject to the conditions under the latter constitutional provision. In former may have the same rank as the latter positions.
this regard, the Court aptly pointed out in Public Interest Center, Inc. v. Elma:[46]
It must be emphasized, however, that despite the non-applicability of Section 13,
The general rule contained in Article IX-B of the 1987 Constitution permits an Article VII of the 1987 Constitution to respondent Elma, he remains covered by the
appointive official to hold more than one office only if allowed by law or by the general prohibition under Section 7, Article IX-B and his appointments must still
primary functions of his position. In the case of Quimson v. Ozaeta, this Court ruled comply with the standard of compatibility of officers laid down therein; failing which,
that, [t]here is no legal objection to a government official occupying two his appointments are hereby pronounced in violation of the Constitution.[47]
government offices and performing the functions of both as long as there is no
incompatibility. The crucial test in determining whether incompatibility exists Clearly, the primary functions of the Office of the Solicitor General are not related or necessary
between two offices was laid out in People v. Green - whether one office is to the primary functions of the Department of Justice. Considering that the nature and duties
subordinate to the other, in the sense that one office has the right to interfere with of the two offices are such as to render it improper, from considerations of public policy, for
the other. one person to retain both,[48] an incompatibility between the offices exists, further warranting
the declaration of Agras designation as the Acting Secretary of Justice, concurrently with his
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; designation as the Acting Solicitor General, to be void for being in violation of the express
x x x Where one office is not subordinate to the other, nor the relations of the one provisions of the Constitution.
to the other such as are inconsistent and repugnant, there is not that incompatibility
from which the law declares that the acceptance of the one is the vacation of the 3.
other. The force of the word, in its application to this matter is, that from the nature Effect of declaration of unconstitutionality of Agras concurrent appointment;
and relations to each other, of the two places, they ought not to be held by the same the de facto officer doctrine
person, from the contrariety and antagonism which would result in the attempt by
one person to faithfully and impartially discharge the duties of one, toward the In view of the application of the stricter prohibition under Section 13, supra, Agra did not
incumbent of the other. x x x The offices must subordinate, one [over] the other, and validly hold the position of Acting Secretary of Justice concurrently with his holding of the
they must, per se, have the right to interfere, one with the other, before they are position of Acting Solicitor General. Accordingly, he was not to be considered as a de jure
incompatible at common law. x x x. officer for the entire period of his tenure as the Acting Secretary of Justice. A de jure officer is
one who is deemed, in all respects, legally appointed and qualified and whose term of office
xxxx has not expired.[49]

While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary of
and appointive officials, Section 13, Article VII, thereof applies in particular to Justice. In Civil Liberties Union v. Executive Secretary,[50] the Court said:
Cabinet secretaries, undersecretaries and assistant secretaries. In the Resolution in
Civil Liberties Union v. Executive Secretary, this Court already clarified the scope of During their tenure in the questioned positions, respondents may be considered de
the prohibition provided in Section 13, Article VII of the 1987 Constitution. Citing the facto officers and as such entitled to emoluments for actual services rendered. It has
case of US v. Mouat, it specifically identified the persons who are affected by this been held that "in cases where there is no de jure, officer, a de facto officer, who, in
prohibition as secretaries, undersecretaries and assistant secretaries; and good faith has had possession of the office and has discharged the duties pertaining
categorically excluded public officers who merely have the rank of secretary, thereto, is legally entitled to the emoluments of the office, and may in an appropriate
undersecretary or assistant secretary. action recover the salary, fees and other compensations attached to the office. This
doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that
Another point of clarification raised by the Solicitor General refers to the persons the public should benefit by the services of an officer de facto and then be freed from
affected by the constitutional prohibition. The persons cited in the constitutional all liability to pay any one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the
questioned positions may therefore be retained by them.

A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. [51] He
may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.[52] Consequently, the acts of the de
facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public
or third persons who are interested therein are concerned.[53]

In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto
Acting Secretary of Justice, assuming that was his later designation, were presumed valid,
binding and effective as if he was the officer legally appointed and qualified for the office.[54]
This clarification is necessary in order to protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from the State.[55] Agras official actions covered
by this clarification extend to but are not limited to the promulgation of resolutions on
petitions for review filed in the Department of Justice, and the issuance of department orders,
memoranda and circulars relative to the prosecution of criminal cases.

WHEREFORE, the Court GRANTS the petition for certiorari and prohibition; ANNULS AND
VOIDS the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a concurrent
capacity with his position as the Acting Solicitor General for being unconstitutional and
violative of Section 13, Article VII of the 1987 Constitution; and DECLARES that Hon. Alberto C.
Agra was a de facto officer during his tenure as Acting Secretary of Justice.

No pronouncement on costs of suit.

SO ORDERED.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del Castillo, Abad,
Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
G.R. No. 71562, October 28, 1991 Officer, both are primarily confidential in nature; and, with respect to the position of Provincial
Administrator:
JOSE C. LAUREL V, IN HIS OFFICIAL CAPACITY AS PROVINCIAL GOVERNOR OF BATANGAS,
PETITIONER, "x x x what is prohibited under Section 49 of P.D. 807 is the appointment of a relative
VS. to a career Civil Service position, like that of a provincial administrator. Governor
CIVIL SERVICE COMMISSION AND LORENZO SANGALANG, RESPONDENTS. Laurel did not appoint his brother, Benjamin, as Provincial Administrator. He merely
designated him 'Acting Provincial Administrator.' And 'appointment' and
RESOLUTION 'designation' are two entirely different things. Appointment implies original
DAVIDE, JR., J.: establishment of official relation. Designation is the imposition of new or additional
duties upon an officer to be performed by him in a special manner. It presupposes
Is the position of Provincial Administrator primarily confidential? a previous appointment of the officer in whom the new or additional duties are
imposed.
Does the rule on nepotism apply to designation?
Appointment is generally permanent, hence the officer appointed cannot be
May a private citizen who does not claim any better right to a position file a verified complaint removed except for cause; designation is merely temporary and the new or
with the Civil Service Commission to denounce a violation by an appointing authority of the additional powers may be withdrawn with or without cause.
Civil Service Law and rules?
Benjamin C. Laurel had already been appointed Senior Executive Assistant in the
These are the issues raised in this petition. Office of the Governor when Governor Laurel designated him Acting Provincial
Administrator."
The antecedent facts are not disputed.
It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act
Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 because:
March 1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office
of the Governor, a non-career service position which belongs to the personal and confidential "As Acting Provincial Administrator, Benjamin is entitled under Office of the
staff of an elective official.[1] President Memorandum-Circular No. 437, series of 1971, to a monthly
representation allowance of P350.00. And said allowance is 'strictly on
On 31 December 1980, the position of Provincial Administrator of Batangas became vacant reimbursement basis.'"[6]
due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants
and so as not to prejudice the operation of the Provincial Government, petitioner designated On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-
his brother, Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981 and 358[7] which, inter alia, revokes the designation of Benjamin as Acting Provincial Administrator
to continue until the appointment of a regular Provincial Administrator, unless the designation on the ground that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The
is earlier revoked.[2] relevant portion of said section reads as follows:

On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security "SECTION 49. Nepotism. - (a) All appointments in the national, provincial, city and
Officer, a position which the Civil Service Commission classifies as "primarily confidential" municipal governments or in any branch or instrumentality thereof, including
pursuant to P.D. No. 868.[3] 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
On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service the persons exercising immediate supervision over him, are hereby prohibited.
Commission[4] to bring to its attention the "appointment" of Benjamin Laurel as Provincial
Administrator of Batangas by the Governor, his brother. He alleges therein that: (1) the As used in this Section, the word relative and members of the family referred to are
position in question is a career position, (2) the appointment violates civil service rules, and (3) those related within the third degree either of consanguinity or affinity.
since the Governor authorized said appointee to receive representation allowance, he violated
the Anti-Graft and Corrupt Practices Act. He then asks that the matter be investigated. (b) The following are exempted from the operation of the rules on nepotism: (1)
persons employed in a confidential capacity, (2) teachers, (3) physicians, and (4)
In his letter to the Chairman of the Civil Service Commission dated 18 January 1983, [5] Jose A. members of the Armed Forces of the Philippines: Provided, however, That in each
Oliveros, Acting Provincial Attorney of Batangas, for and in behalf of herein petitioner, asserts particular instance full report of such appointment shall be made to the
that the latter did not violate the provision prohibiting nepotism under Section 49 of P.D. No. Commission."
807 because, with respect to the positions of Senior Executive Assistant and Civil Security
xxx
Although what was extended to Benjamin was merely a designation and not an appointment, he filed was not an action for quo warranto, but an administrative complaint to correct a
the Civil Service Commission ruled that "the prohibitive mantle on nepotism would include violation of the Civil Service law and rules which involved public service and the public
designation, because what cannot be done directly cannot be done indirectly." It further held interest. Per Benitez vs. Paredes,[10] reiterated in Taada vs. Tuvera,[11] where the question is
that Section 24(f) of Republic Act No. 2260 provides that no person appointed to a position in one of public right, the people are regarded as the real parties in interest, and the relator at
the non-competitive service (now non-career) shall perform the duties properly belonging to whose instigation the proceedings are instituted need only show that he is a citizen and as such
any position in the competitive service (now career service). The petitioner, therefore, could interested in the execution of the laws.
not legally and validly designate Benjamin, who successively occupied the non-career positions
of Senior Executive Assistant and Civil Security Officer, to the position of Provincial On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that the
Administrator, a career position under Section 4 of R.A. No. 5185. duties, functions and responsibilities of the Provincial Administrator render said position
primarily confidential in nature; the requirement of a specific service eligibility and absence of
Petitioner's motion to reconsider said Resolution,[8] based on the claim that the questioned a presidential declaration that the position is primarily confidential do not place the said
position is primarily confidential in nature, having been denied in Resolution No. 85-271 of 3 position in the career service; the position of Provincial Administrator is in the non-career
July 1985[9] wherein the respondent Civil Service Commission maintains that said position is service; and that the Benitez vs. Paredes and Taada vs. Tuvera cases are not applicable in this
not primarily-confidential in nature since it neither belongs to the personal staff of the case. Petitioner insists that the controlling doctrines are those enunciated in Salazar vs.
Governor nor are the duties thereof confidential in nature considering that its principal Mathay,[12] where this Court held that there are two instances when a position may be
functions involve general planning, directive and control of administrative and personnel considered primarily confidential, to wit: (a) when the President, upon recommendation of
service in the Provincial Office, petitioner filed the instant petition invoking the following the Commissioner of Civil Service (now Civil Service Commission) has declared a position to be
grounds: primarily confidential; and (2) in the absence of such declaration, when by the very nature of
the functions of the office, there exists close intimacy between the appointee and the
"A. Respondent Commission has committed a (sic) grave abuse of discretion appointing power which insures freedom of intercourse without embarrassment or freedom
amounting to lack or excess of jurisdiction when it held that the position of provincial from misgiving or betrayals of personal trust or confidential matters of state and Piero
administrator is not a primarily-confidential position because said ruling is vs. Hechanova,[13] where this Court ruled that at least, since the enactment of the 1959 Civil
diametrically opposed to, and in utter disregard of rulings of this Honorable Court as Service Act (R.A. No. 2260), it is the nature of the position that finally determines whether a
to what is a primarily-confidential position under Article XII-B, Sec. 2 of the position is primarily confidential, policy determining, or highly technical and that executive
Constitution. pronouncements can be no more than initial determinations that are not conclusive in case of
conflict, which must be so, or else "it would then lie within the discretion of the Chief Executive
B. Respondent Commission gravely abused its discretion and acted without to deny to any officer, by executive fiat, the protection of section 4, Article XII of the
jurisdiction when it arrogated unto itself the power to review a designation made by Constitution."
petitioner by virtue of the powers in him vested under Section 2077 of the Revised
Administrative Code. In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings in the
Salazar and Piero cases have been modified and superseded by Section 6 of P.D. No. 807, and
C. Respondent Commission exceeded its jurisdiction when it gave due course to the by the third paragraph of Section 1 of P.D. No. 868, which provides:
complaint of private respondent and thereafter promulgated the resolutions under
question in this petition. "Any provision of law authorizing any official, other than the President, to declare
positions policy-determining, primarily confidential or highly technical which are
D. There is no appeal, nor any other plain, speedy and adequate remedy in the exempt from the Civil Service Law and rules is hereby repealed, and only the
ordinary course of law available to petitioner to have the questioned resolutions of President may declare a position policy-determining, highly technical or primarily
respondent Commission reviewed and thereafter nullified, revoked and set aside, confidential, upon recommendation of the Civil Service Commission, the Budget
other than this recourse to a petition for certiorari under Rule 65 of the Rules of Commission and the Presidential Reorganization Commission."
Court.
The Solicitor General further asseverates that the Commission's giving due course to the
In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor General complaint of Sangalang is manifestly valid and legal for it is also in accordance with the
sustains the challenged resolutions and contends that the position of Provincial Administrator declared policies of the State provided for in Section 2 of P.D. No. 807.
is intended to be part of the career system and since it requires a specific civil service eligibility,
it belongs to the career service under Section 5(1) of P.D. No. 807 and has not been declared In the Resolution of 9 February 1987, this Court gave due course to the petition and required
primarily confidential by the President pursuant to Section 1 of P.D. No. 868; that the the parties to submit simultaneous memoranda.
Commission has the authority to review, disapprove, and set aside even mere designations, as
distinguished from appointments, for Section 2 of P.D. No. 807 vests in it the power to enforce We shall take up the issues in the order they are presented above.
the laws and rules governing the selection, utilization, training and discipline of civil servants;
and that it can act on Sangalang's complaint pursuant to Section 37 of P.D. No. 807, for what
1. The first issue becomes important because if the questioned position is primarily Under the direction of the Provincial Governor, responsible for the overall
confidential, Section 49 of P.D. No. 807 on nepotism would not apply in the instant coordination of the activities of the various national and local agencies in the
case. Interestingly, however, petitioner did not raise it in the letter to the Chairman of the Civil province; and general planning, direction and control of the personnel functions and
Service Commission dated 18 January 1983.[14] the administrative services of the Governor's Office.

On the contrary, he submits, or otherwise admits therein, that said position is not primarily 3. DISTINGUISHING CHARACTERISTICS:
confidential for it belongs to the career service. He even emphasized this fact with an air of
absolute certainty, thus: This is the class for top professional level management, administrative and
organizational work in the operation of provincial government with highly complex,
"At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 involved relationships with considerable delegation of authority and responsibility
is the appointment of a relative to a career Civil Service position, LIKE THAT OF and a high degree of public contact."
PROVINCIAL ADMINISTRATOR x x x."
render indisputable the above conclusion that the subject position is in the career service
(capitalization supplied for emphasis). which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness
to be determined as far as practicable by competitive examinations, or based on highly
The sole ground invoked by him for exemption from the rule on nepotism is, as above technical qualifications, (b) opportunity for advancement to higher career positions, and (c)
indicated: the rule does not apply to designation -- only to appointment. He changed his mind security of tenure. More specifically, it is an open career position, for appointment to it
only after the public respondent, in its Resolution No. 83-358, ruled that the "prohibitive requires prior qualification in an appropriate examination. [17] It falls within the second major
mantle on nepotism would include designation, because what cannot be done directly cannot level of positions in the career service, per Section 7 of P.D. No. 807, which reads:
be done indirectly" and, more specifically, only when he filed his motion to reconsider said
resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article "SECTION 7. Classes of Positions in the Career Service. - (a) Classes of positions in
1431 of the Civil Code, through estoppel an admission or representation is rendered conclusive the career service appointment to which requires examinations shall be grouped into
upon the person making it, and cannot be denied or disproved as against the person relying three major levels as follows:
thereon.[15]
xxx
But even if estoppel were not to operate against him, or regardless thereof, his claim that the
position of Provincial Administrator is primarily confidential, is without merit. (2) The second level shall include professional, technical, and scientific positions
which involve professional, technical, or scientific work in a non-supervisory or
As correctly maintained by the public respondent and the Solicitor General, the position of supervisory capacity requiring at least four years of college work up to Division Chief
Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 level; x x x."
as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions, [16]
to wit: In Piero, et al. vs. Hechanova, et. al.,[18] this Court had the occasion to rule that:

"Education : Bachelor's degree preferably in Law/Public or Business "It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260),
Administration. it is the nature of the position which finally determines whether a position is
primarily confidential, policy determining or highly technical. Executive
Experience : Six years of progressively responsible experience in planning, pronouncements can be no more than initial determinations that are not conclusive
directing and administration of provincial government operations. Experience in in case of conflict. And it must be so or else it would then lie within the discretion of
private agencies considered are those that have been more or less similar level of the Chief Executive to deny to any officer, by executive fiat, the protection of Section
administrative proficiency. 4, Article XII[19] of the Constitution."

Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently
(Professional)/First Grade/Supervisor." reads:

It may be added that the definition of its functions and its distinguishing characteristics as laid "x x x and only the President may declare a position policy-determining, highly
down in the Manual, thus: technical or primarily confidential, upon recommendation of the Civil Service
Commission, the Budget Commission and the Presidential Reorganization
xxx Commission."

"2. DEFINITION: for the reason that the latter may be considered merely as the initial determination of the
Executive, which in no case forecloses judicial review. A rule that exclusively vests upon the
Executive the power to declare what position may be considered policy-determining, primarily "By legal contemplation, the prohibitive mantle on nepotism would include
confidential, or highly technical would subvert the provision on the civil service under the 1973 designation, because what cannot be done directly cannot be done indirectly."[24]
Constitution which was then in force at the time the decree was promulgated. Specifically,
Section 2 of Article XII of said Constitution makes reference to positions which are policy- We cannot accept petitioner's view. His specious and tenuous distinction between
determining, primarily confidential, or highly technical in nature," thereby leaving no room for appointment and designation is nothing more than either a ploy ingeniously conceived to
doubt that, indeed, it is the nature of the position which finally determines whether it falls circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its
within the above mentioned classification. The 1987 Constitution retains this rule when in violation. The rule admits of no distinction between appointment and
Section 2 of Article IX-C, it clearly makes reference to "positions which are policy-determining, designation. Designation is also defined as "an appointment or assignment to a particular
primarily confidential, or highly technical." office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or
duty."[25]
In the light of the foregoing, We cannot accept the view of the Solicitor General in his
Rejoinder[20] that Salazar vs. Mathay[21] and Piero, et al. vs. Hechanova, et al.[22] have already In Borromeo vs. Mariano,[26] this Court said:
been modified by Section 6 of P.D. No. 807 and the third paragraph of Section 1 of P.D. No.
868. "x x x All the authorities unite in saying that the term 'appoint' is well-known in law
and whether regarded in its legal or in its ordinary acceptation, is applied to the
Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule nomination or designation of an individual x x x." (emphasis supplied).
on nepotism.
In Binamira vs. Garrucho,[27] this Court, per Mr. Justice Isagani M. Cruz, stated:
We likewise agree with the public respondent that there is one further obstacle to the
occupation by Benjamin Laurel of the position of Provincial Administrator. At the time he was "Designation may also be loosely defined as an appointment because it likewise
designated as Acting Provincial Administrator, he was holding the position of Senior Executive involves the naming of a particular person to a specified public office. That is the
Assistant in the Office of the Governor, a primarily confidential position. He was thereafter common understanding of the term. However, where the person is merely
promoted as Civil Security Officer, also a primarily confidential position. Both positions belong designated and not appointed, the implication is that he shall hold the office only in
to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public a temporary capacity and may be replaced at will by the appointing authority. In this
respondent, petitioner cannot legally and validly designate Benjamin Laurel as Acting sense, the designation is considered only an acting or temporary appointment, which
Provincial Administrator, a career position, because Section 24(f) of R.A. No. 2260 provides does not confer security of tenure on the person named."
that no person appointed to a position in the non-competitive service (now non-career) shall
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should
perform the duties properly belonging to any position in the competitive service (now career
be differentiated from appointment. Reading this section with Section 25 of said decree,
service).
career service positions may be filled up only by appointment, either permanent or temporary;
2. Being embraced in the career service, the position of Provincial Administrator must, as hence a designation of a person to fill it up because it is vacant, is necessarily included in the
mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary term appointment, for it precisely accomplishes the same purpose. Moreover, if a designation
appointment. The first shall be issued to a person who meets all the requirements for the is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then
position to which he is appointed, including the appropriate eligibility prescribed. In the the prohibition on nepotism would be meaningless and toothless. Any appointing authority
absence of appropriate eligibles and it becomes necessary in the public interest to fill a may circumvent it by merely designating, and not appointing, a relative within the prohibited
vacancy, a temporary appointment shall be issued to a person who meets all the requirements degree to a vacant position in the career service. Indeed, as correctly stated by public
for the position except the appropriate civil service eligibility, provided, however, that such respondent, "what cannot be done directly cannot be done indirectly."[28]
temporary appointment shall not exceed twelve months, but the appointee may be replaced
3. As regards the last issue, We rule that the letter-complaint of Sangalang was validly given
sooner if a qualified civil service eligible becomes available. [23]
due course by public respondent. Undoubtedly, as shown above, there was a violation of law
Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position committed by petitioner in designating his brother as Acting Provincial Administrator. Any
because of the prohibition on nepotism under Section 49 of P.D. No. 807. They are related citizen of the Philippines may bring that matter to the attention of the Civil Service Commission
within the third degree of consanguinity and the case does not fall within any of the for appropriate action conformably with its role as the central personnel agency to set
exemptions provided therein. standards and to enforce the laws and rules governing the selection, utilization, training and
discipline of civil servants,[29] with the power and function to administer and enforce the
Petitioner, however, contends that since what he extended to his brother is not an constitutional and statutory provisions on the merit system.[30] Moreover, Section 37 of the
appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent decree expressly allows a private citizen to directly file with the Civil Service Commission a
disagrees, for: complaint against a government official or employee, in which case it may hear and decide the
case or may deputize any department or agency or official or group of officials to conduct an
investigation. The results of the investigation shall be submitted to the Commission with
recommendation as to the penalty to be imposed or other action to be taken. This provision
gives teeth to the constitutional exhortation that a public office is a public trust and public
officers and employees must at all times be, inter alia, accountable to the people. [31] An
ordinary citizen who brings to the attention of the appropriate office any act or conduct of a
government official or employee which betrays the public interest deserves nothing less than
the praises, support and encouragement of society. The vigilance of the citizenry is vital in a
democracy.

WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the
Civil Service Commission are AFFIRMED.

Costs against petitioner.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin, and Romero, JJ., concur.


G.R. No. 110544, October 17, 1995 The undersigned Special Prosecution Officer of the Special Prosecutor, hereby
accuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM,
REYNALDO V. TUANDA, MAYOR OF THE MUNICIPALITY OF JIMALALUD, NEGROS ORIENTAL, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V.
HERMINIGILDO FABURADA, (FORMER VICE-MAYOR), SANTOS A. VILLANUEVA, INCUMBENT SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019,
MEMBER OF THE SANGGUNIANG BAYAN, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. as amended, committed as follows:
MENDOZA, MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES,
AND FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, That during the period from February 1989 to February 1991 and subsequent
PETITIONERS, thereto, in the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction
VS. of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA,
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN AND DELIA Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM,
ESTRELLANES, RESPONDENTS. NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V.
SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the
DECISION performance of their official functions and taking advantage of their public positions,
KAPUNAN, J.: with evident bad faith, manifest partiality, and conspiring and confederating with
each other did, then and there, willfully and unlawfully cause undue injury to
Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Sectoral Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay
Revised Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY
1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS
"People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for (P108,900.00) representing respectively their per diems, salaries and other privileges
suspension of their arraignment. and benefits, and such undue injury continuing to the present to the prejudice and
damage of Bartolome Binaohan and Delia Estrellanes.
The present controversy arose from the following antecedents:
CONTRARY TO LAW.[1]
On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were
designated as industrial labor sectoral representative and agricultural labor sectoral On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the
representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros proceedings in Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil
Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private Case No. 9955 pending before the Regional Trial Court of Dumaguete City.[2]
respondents Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17
February 1989, respectively. On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void
ab initio the designations issued by the Department of Local Government to the private
Subsequently, petitioners filed an undated petition with the Office of the President for review respondents as sectoral representatives for having been done in violation of Section 146 (2) of
and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied B.P. Blg. 337, otherwise known as the Local Government Code.[3]
the petition and enjoined Mayor Reynaldo Tuanda to recognize private respondents as sectoral
representatives. The trial court expounded thus:

On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663,
Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935,
as members of the Sangguniang Bayan. It was dismissed on 23 July 1991. 88072, and 90205) all promulgated on August 24, 1990, ruled that:

Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of B.P. Blg. 337 explicitly required that before the President (or the Secretary of the
Dumaguete City to declare null and void the designations of private respondents as sectoral Department of Local Government) may appoint members of the local legislative
representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus bodies to represent the Industrial and Agricultural Labor Sectors, there must be a
Secretary of the Department of Local Government, et. al." determination to be made by the Sanggunian itself that the said sectors are of
sufficient number in the city or municipality to warrant representation after
On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case consultation with associations and persons belonging to the sector concerned.
No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et. al.," charging
petitioners thus: The Supreme Court further ruled -

INFORMATION
For that matter, the Implementing Rules and Regulations of the Local Government such judicial declaration of nullity, the private complainants are considered at least
Code even prescribe the time and manner by which such determination is to be de facto public officers acting as such on the basis of apparently valid appointments
conducted by the Sanggunian. issued by competent authorities. In other words, regardless of the decision that may
be rendered in Civil Case No. 9955, the private complainants are entitled to their
Consequently, in cases where the Sanggunian concerned has not yet determined withheld salaries for the services they have actually rendered as sectoral
that the Industrial and Agricultural Labor Sectors in their particular city or representatives of the said Sangguniang Bayan. Hence, the decision that may be
municipality are of sufficient number to warrant representation, there will absolutely rendered by the Regional Trial Court in Civil Case No. 9955 would not be
be no basis for the designation/appointments. determinative of the innocence or guilt of the accused.

In the process of such inquiry as to the sufficiency in number of the sector concerned to WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of
warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack
associations and persons belonging to the sector concerned. Consultation with the sector of merit.
concerned is made a pre-requisite. This is so considering that those who belong to the said
sector are the ones primarily interested in being represented in the Sanggunian. In the same SO ORDERED.[5]
aforecited case, the Supreme Court considers such prior determination by the Sanggunian
itself (not by any other person or body) as a condition sine qua non to a valid appointment or Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the
designation. decision promulgated by the trial court nullifying the appointments of private respondents but
it was, likewise, denied in an order issued by respondent Sandiganbayan on 19 August 1992 on
Since in the present case, there was total absence of the required prior determination by the the justification that the grounds stated in the said motion were a mere rehash of petitioners'
Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations of private original motion to hold the case in abeyance.[6] The dispositive portion of its order reads as
defendants as sectoral representatives null and void. follows:

This verdict is not without precedence. In several similar cases, the Supreme Court invariably WHEREFORE, in view of the foregoing, the arraignment of the accused which was
nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada,
complied with. Just to cite one case, the Supreme Court ruled: Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado
Estrellanes are, however, hereby ordered to show cause in writing within ten (10)
There is no certification from the Sangguniang Bayan of Valenzuela that the sectors days from service hereof why they should not be cited for contempt of court for their
concerned are of sufficient number to warrant representation and there was no failure to appear in court today for arraignment.
consultation whatsoever with the associations and persons belonging to the
Industrial and Agricultural Labor Sectors. Therefore, the appointment of private In case of an adverse resolution on the motion to quash which is to be filed by the
respondents Romeo F. Bularan and Rafael Cortez are null and void (Romeo Llanado, counsel for the defense, set this case for arraignment, pre-trial and trial on January
et al. v. Hon. Luis Santos, et al., G.R. No. 86394, August 24, 1990).[4] 4 & 5, 1993, on all dates the trial to start at 8:30 o'clock in the morning.

Private respondents appealed the aforestated decision to the Court of Appeals, docketed as SO ORDERED.[7]
CA--G.R. CV No. 36769, where the same is currently pending resolution.
On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the incidents pending the issuance of an extended resolution.[8]
motion for suspension of proceedings filed by petitioners. Said respondent Sandiganbayan:
No such resolution, however, was issued and in its assailed order dated 13 May 1992,
Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros respondent Sandiganbayan set the arraignment of petitioners on 30 June 1993. The
Oriental, it appears, nevertheless, that the private complainants have been dispositive portion of the order reads:
rendering services on the basis of their respective appointments as sectoral
members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros WHEREFORE, considering the absence of the accused from the scheduled hearing
Oriental; and that their said appointments enjoy the presumption of today which We deem to be excusable, reset this case for arraignment on June 30,
regularity. Having rendered such services, the private complainants are entitled to 1993 and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the
the salaries attached to their office. Even assuming arguendo that the said Regional trial to start at 8:30 o'clock in the morning.
Trial Court shall later decide that the said appointments of the private complainants
are null and void, still the private complainants are entitled to their salaries and
compensation for service they have actually rendered, for the reason that before
Give proper notice to the accused and principal counsel, Atty. Alfonso The rationale behind the principle of prejudicial question is to avoid two conflicting
Briones. Considering that the accused come all the way from Himalalud, Negros decisions.[14] It has two essential elements:
Oriental, no postponement will be allowed.
(a) the civil action involves an issue similar or intimately related to the issue raised in
SO ORDERED.[9] the criminal action; and

Hence, this special civil action for certiorari and prohibition where petitioners attribute to (b) the resolution of such issue determines whether or not the criminal action may
respondent Sandiganbayan the following errors: proceed.[15]

A. The Respondent Court committed grave abuse of discretion in denying petitioners' Applying the foregoing principles to the case at bench, we find that the issue in the civil case,
motions for the suspension of the proceedings in Criminal Case No. 16936 in spite of CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant suspension of the
the pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No. arraignment and further proceedings in the criminal case against petitioners.
36769;
All the elements of a prejudicial question are clearly and unmistakably present in this case.
B. The Respondent Court acted without or in excess of jurisdiction in refusing to There is no doubt that the facts and issues involved in the civil action (No. 36769) and the
suspend the proceedings that would entail a retrial and rehearing by it of the basic criminal case (No. 16936) are closely related. The filing of the criminal case was premised on
issue involved, i.e., the validity of the appointments of private respondents and their petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries
entitlement to compensation which is already pending resolution by the Court of and per diems as sectoral representatives, while the civil action was instituted precisely to
Appeals in C.A. G.R. CV No. 36769; and resolve whether or not the designations of private respondents as sectoral representatives
were made in accordance with law.
C. The Respondent Court committed grave abuse of discretion and/or acted without
or in excess of jurisdiction in effectively allowing petitioners to be prosecuted under More importantly, the resolution of the civil case will certainly determine if there will still be
two alternative theories that private respondents are de jure and/or de facto officers any reason to proceed with the criminal action.
in violation of petitioners' right to due process.[10]
Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act [RA 3019, sec.
In sum, the only issue in the case at bench is whether or not the legality or validity of private 3(e)] due to their refusal, allegedly in bad faith and with manifest partiality, to pay private
respondents' designation as sectoral representatives which is pending resolution in CA-G.R. respondents' salaries as sectoral representatives. This refusal, however, was anchored on
No. 36769 is a prejudicial question justifying suspension of the proceedings in the criminal case petitioners' assertion that said designations were made in violation of the Local Government
against petitioners. Code (B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals
uphold the trial court's decision declaring null and void private respondents' designations as
A prejudicial question is one that must be decided before any criminal prosecution may be sectoral representatives for failure to comply with the provisions of the Local Government
instituted or before it may proceed (see Art. 36, Civil Code) because a decision on that point is Code [B.P. Blg. 337, sec. 146(2)], the charges against petitioners would no longer, so to speak,
vital to the eventual judgment in the criminal case. Thus, the resolution of the prejudicial have a leg to stand on. Petitioners cannot be accused of bad faith and partiality there being in
question is a logical antecedent of the issues involved in said criminal case.[11] the first place no obligation on their part to pay private respondents' claims. Private
respondents do not have any legal right to demand salaries, per diems and other benefits. In
A prejudicial question is defined as that which arises in a case the resolution of which is a logical other words, the Court of Appeals' resolution of the issues raised in the civil action will
antecedent of the issue involved therein, and the cognizance of which pertains to another ultimately determine whether or not there is basis to proceed with the criminal case.
tribunal. The prejudicial question must be determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged in another court or tribunal. [12] It is Private respondents insist that even if their designations are nullified, they are entitled to
a question based on a fact distinct and separate from "the crime but so intimately connected compensation for actual services rendered.[16] We disagree. As found by the trial court and as
with it that it determines the guilt or innocence of the accused, and for it to suspend the borne out by the records, from the start, private respondents' designations as sectoral
criminal action, it must appear not only that said case involves facts intimately related to those representatives have been challenged by petitioners. They began with a petition filed with the
upon which the criminal prosecution would be based but also that in the resolution of the issue Office of the President copies of which were received by private respondents on 26 February
or issues raised in the civil case, the guilt or innocence of the accused would necessarily be 1989, barely eight (8) days after they took their oath of office.[17] Hence, private respondents'
determined. It comes into play generally in a situation where a civil action and a criminal action claim that they have actually rendered services as sectoral representatives has not been
are both pending and there exists in the former an issue which must be preemptively resolved established.
before the criminal action may proceed, because howsoever the issue raised in the civil action
is resolved would be determinative juris et de jure of the guilt or innocence of the accused in
the criminal case."[13]
Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that
private respondents' designations are finally declared invalid, they may still be considered
de facto public officers entitled to compensation for services actually rendered.

The conditions and elements of de facto officership are the following:

1) There must be a de jure office;

2) There must be color of right or general acquiescence by the public; and

3) There must be actual physical possession of the office in good faith.[18]

One can qualify as a de facto officer only if all the aforestated elements are present. There can
be no de facto officer where there is no de jure office, although there may be a de facto
officer in a de jure office.[19]

WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13
May 1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE.
Respondent Sandiganbayan is enjoined from proceeding with the arraignment and trial of
petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV. No. 36769.

SO ORDERED.

Padilla, (Chairman), Davide, Jr., and Bellosillo, JJ., concur.


Hermosisima, Jr., J., no part.
G.R. No. 131012, April 21, 1999 ordered the suspension of Nicanor Margallo. The appellate court found him guilty of violation
of reasonable office rules and regulations only and imposed on him the penalty of reprimand.[5]
HON. RICARDO T. GLORIA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
EDUCATION, CULTURE, AND SPORTS, PETITIONER, Private respondents moved for a reconsideration, contending that they should be exonerated
VS. of all charges against them and that they be paid salaries during their suspension. In its
COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG resolution, dated July 15, 1997, the Court of Appeals, while maintaining its finding that private
AND NICANOR MARGALLO, RESPONDENTS. respondents were guilty of violation of reasonable office rules and regulations for which they
should be reprimanded, ruled that private respondents were entitled to the payment of
DECISION salaries during their suspension "beyond ninety (90) days." Accordingly, the appellate court
MENDOZA, J.: amended the dispositive portion of its decision to read as follows:

This case arose out of the unfortunate strikes and walk-outs staged by public school teachers WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC
on different dates in September and October 1990. The illegality of the strikes was declared in Resolution Nos. 93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In
our 1991 decision in Manila Public School Teachers Association v. Laguio, Jr.,[1] but many re: Amparo Abad), CSC Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227
incidents of those strikes are still to be resolved. At issue in this case is the right to back salaries dated August 17, 1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301
of teachers who were either dismissed or suspended because they did not report for work but undated and 93-3125 dated August 10, 1993 (In re: Elizabeth Somebang) are hereby
who were eventually ordered reinstated because they had not been shown to have taken part AFFIRMED while CSC Resolution Nos. 93-2211 dated June 21, 1993 are hereby
in the strike, although reprimanded for being absent without leave. MODIFIED finding petitioner Nicanor Margallo guilty of a lesser offense of violation
of reasonable office rules and regulations and meting upon him the penalty of
The facts are as follows: reprimand. Respondent DECS is ordered to pay petitioners Amparo Abad, Virgilia
Bandigas, Elizabeth Somebang and Nicanor Margallo their salaries, allowances and
Private respondents are public school teachers. On various dates in September and October other benefits during the period of their suspension/dismissal beyond the ninety (90)
1990, during the teachers' strikes, they did not report for work. For this reason, they were day preventive suspension. No pronouncement as to costs.[6]
administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross
violation of Civil Service Law Rules and Regulations and reasonable office regulations, (4) Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a
refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best reconsideration insofar as the resolution of the Court of Appeals ordered the payment of
interest of the service, and (7) absence without leave (AWOL), and placed under preventive private respondents' salaries during the period of their appeal.[7] His motion was, however,
suspension. The investigation was concluded before the lapse of their 90-day suspension and denied by the appellate court in its resolution of October 6, 1997. [8] Hence, this petition for
private respondents were found guilty as charged. Respondent Nicanor Margallo was ordered review on certiorari.
dismissed from the service effective October 29, 1990, while respondents Amparo Abad,
Virgilia Bandigas, and Elizabeth Somebang were ordered suspended for six months effective Petitioner contends that the administrative investigation of respondents was concluded within
December 4, 1990.[2] the 90-day period of preventive suspension, implying that the continued suspension of private
respondents is due to their appeal, hence, the government should not be held answerable for
Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which payment of their salaries. Moreover, petitioner lays so much store by the fact that, under the
found him guilty of conduct prejudicial to the best interest of the service and imposed on him law, private respondents are considered under preventive suspension during the period of
a six-month suspension.[3] The other respondents also appealed to the MSPB, but their appeal their appeal and, for this reason, are not entitled to the payment of their salaries during their
was dismissed because of their failure to file their appeal memorandum on time.[4] suspension.[9]

On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect Petitioner's contentions have no merit.
to Margallo, but found the other three (Abad, Bandigas, and Somebang) guilty only of violation
of reasonable office rules and regulations by failing to file applications for leave of absence I. PREVENTIVE SUSPENSION AND THE RIGHT TO COMPENSATION IN CASE OF EXONERATION
and, therefore, reduced the penalty imposed on them to reprimand and ordered them
reinstated to their former positions. The present Civil Service Law is found in Book V, Title I, Subtitle A of the Administrative Code
of 1987 (E.O. 292). So far as pertinent to the questions in this case, the law provides:
Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to Revised
Administrative Circular No. 1-95, the case was referred to the Court of Appeals which, on SEC. 47. Disciplinary Jurisdiction. -
September 3, 1996, rendered a decision (1) affirming the decision of the CSC with respect to
Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the CSC ....
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and Is he entitled to the payment of salaries during the period of suspension? As already stated,
municipalities shall have jurisdiction to investigate and decide matters involving the Court of Appeals ordered the DECS to pay private respondents their salaries, allowances,
disciplinary action against officers and employees under their jurisdiction. Their and other benefits "beyond the ninety (90) day preventive suspension." In other words, no
decisions shall be final in case the penalty imposed is suspension for not more than compensation was due for the period of the preventive suspension pending investigation but
thirty days or fine in an amount not exceeding thirty days' salary. In case the decision only for the period of preventive suspension pending appeal in the event the employee is
rendered by a bureau or office head is appealable to the Commission, the same may exonerated.
be initially appealed to the department and finally to the Commission and pending
appeal, the same shall be executory except when the penalty is removal, in which The separate opinion of Justice Panganiban argues that the employee concerned should be
case the same shall be executory only after confirmation by the Secretary concerned. paid his salaries after his suspension.

.... The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case
of exoneration. Sec. 35 read:
(4) An appeal shall not stop the decision from being executory, and in case the
penalty is suspension or removal, the respondent shall be considered as having been Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. -
under preventive suspension during the pendency of the appeal in the event he wins When the administrative case against the officer or employee under preventive
an appeal. suspension is not finally decided by the Commissioner of Civil Service within the
period of sixty (60) days after the date of suspension of the respondent, the
SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively respondent shall be reinstated in the service. If the respondent officer or employee
suspend any subordinate officer or employee under his authority pending an is exonerated, he shall be restored to his position with full pay for the period of
investigation, if the charge against such officer or employee involves dishonesty, suspension.[11]
oppression or grave misconduct, or neglect in the performance of duty, or if there
are reasons to believe that the respondent is guilty of charges which would warrant However, the law was revised in 1975 and the provision on the payment of salaries during
his removal from the service. suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read:

SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. -
When the administrative case against the officer or employee under preventive When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period of suspension is not finally decided by the disciplining authority within the period of
ninety (90) days after the date of suspension of the respondent who is not a ninety (90) days after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically reinstated in the presidential appointee, the respondent shall be automatically reinstated in the
service: Provided, That when the delay in the disposition of the case is due to the service; Provided, That when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period of delay shall not be fault, negligence or petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided. counted in computing the period of suspension herein provided.

There are thus two kinds of preventive suspension of civil service employees who are charged This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy that the
with offenses punishable by removal or suspension: (1) preventive suspension pending Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension
investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by shall be "without pay." Sec. 24 reads:
the disciplining authority is suspension or dismissal and, after review, the respondent is
exonerated (47(4)). Sec. 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in
Preventive suspension pending investigation is not a penalty. [10] It is a measure intended to his judgment the evidence of guilt is strong, and (a) the charge against such officer
enable the disciplining authority to investigate charges against respondent by preventing the or employee involves dishonesty, oppression or grave misconduct or neglect in the
latter from intimidating or in any way influencing witnesses against him. If the investigation is performance of duty; (b) the charges would warrant removal from the service; or (c)
not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent's continued stay in office may prejudice the case filed against him.
the respondent will automatically be reinstated. If after investigation respondent is found
innocent of the charges and is exonerated, he should be reinstated. The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six months, without pay, except when the
A. No Right to Compensation for Preventive Suspension Pending Investigation Even if delay in the disposition of the case by the Office of the Ombudsman is due to the
Employee is Exonerated fault, negligence or petition of the respondent, in which case the period of such delay
shall not be counted in computing the period of suspension herein provided.
It is clear that the purpose of the amendment is to disallow the payment of salaries for the if the investigation is not finished, the law provides that the employee shall be automatically
period of suspension. This conclusion is in accord with the rule of statutory construction that - reinstated.

As a rule, the amendment by deletion of certain words or phrases in a statute Third, it is argued in the separate opinion that to deny employees salaries on the "frivolous"
indicates that the legislature intended to change the meaning of the statute, for the ground that the law does not provide for their payment would be to provide a "tool for the
presumption is that the legislature would not have made the deletion had the oppression of civil servants who, though innocent, may be falsely charged of grave or less grave
intention been not in effect a change in its meaning. The amended statute should administrative offenses." Indeed, the possibility of abuse is not an argument against the
accordingly be given a construction different from that previous to its recognition of the existence of power. As Justice Story aptly put it, "It is always a doubtful
amendment.[12] course, to argue against the use or existence of a power, from the possibility of its abuse. . . .
[For] from the very nature of things, the absolute right of decision, in the last resort, must rest
The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to somewhere - wherever it may be vested it is susceptible of abuse."[18] It may be added that if
deny payment of salaries for the preventive suspension pending investigation. and when such abuse occurs, that would be the time for the courts to exercise their nay-saying
function. Until then, however, the public interest in an upright civil service must be upheld.
First, it says that to deny compensation for the period of preventive suspension would be to
reverse the course of decisions ordering the payment of salaries for such period. However, the Finally, it is argued that even in the private sector, the law provides that employees who are
cases[13] cited are based either on the former rule which expressly provided that "if the unjustly dismissed are entitled to reinstatement with full pay. But that is because R.A. No. 6715
respondent officer or employee is exonerated, he shall be restored to his position with full pay expressly provides for the payment to such employees of "full backwages, inclusive of
for the period of suspension"[14] or that "upon subsequent reinstatement of the suspended allowances, and . . . other benefits or their monetary equivalent computed from the time his
person or upon his exoneration, if death should render reinstatement impossible, any salary compensation was withheld from him up to the time of his actual reinstatement."[19] In the
so withheld shall be paid,"[15] or on cases which do not really support the proposition advanced. case of the public sector, as has been noted, the provision for payment of salaries during the
preventive suspension pending investigation has been deleted.
Second, it is contended that the exoneration of employees who have been preventively
suspended is proof that there was no reason at all to suspend them and thus makes their B. Right to Compensation for Preventive Suspension Pending Appeal if Employee is
preventive suspension a penalty. Exonerated

The principle governing entitlement to salary during suspension is cogently stated in Floyd R. But although we hold that employees who are preventively suspended pending investigation
Mechem's A Treatise on the Law of Public Offices and Officers as follows: are not entitled to the payment of their salaries even if they are exonerated, we do not agree
with the government that they are not entitled to compensation for the period of their
864. Officer not entitled to Salary during Suspension from Office. - An officer who suspension pending appeal if eventually they are found innocent.
has been lawfully suspended from his office is not entitled to compensation for the
period during which he was so suspended, even though it be subsequently Preventive suspension pending investigation, as already discussed, is not a penalty but only a
determined that the cause for which he was suspended was insufficient. The reason means of enabling the disciplining authority to conduct an unhampered investigation. On the
given is "that salary and perquisites are the reward of express or implied services, other hand, preventive suspension pending appeal is actually punitive although it is in effect
and therefore cannot belong to one who could not lawfully perform such subsequently considered illegal if respondent is exonerated and the administrative decision
services."[16] finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the
suspension. Thus, 47(4) states that respondent "shall be considered as under preventive
Thus, it is not enough that an employee is exonerated of the charges against him. In addition, suspension during the pendency of the appeal in the event he wins." On the other hand, if his
his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part
states that "payment of salaries corresponding to the period [1] when an employee is not of the final penalty of suspension or dismissal.
allowed to work may be decreed if he is found innocent of the charges which caused his
suspension and [2] when the suspension is unjustified."[17] It is precisely because respondent is penalized before his sentence is confirmed that he should
be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay
The preventive suspension of civil service employees charged with dishonesty, oppression or as a result of the immediate execution of the decision against him and continue to do so even
grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, after it is shown that he is innocent of the charges for which he was suspended. Indeed, to
be considered "unjustified," even if later the charges are dismissed so as to justify the payment sustain the government's theory would be to make the administrative decision not only
of salaries to the employee concerned. It is one of those sacrifices which holding a public office executory but final and executory. The fact is that 47(2) and (4) are similar to the execution
requires for the public good. For this reason, it is limited to ninety (90) days unless the delay in of judgment pending appeal under Rule 39, 2 of the Rules of Court. Rule 39, 5 provides that
the conclusion of the investigation is due to the employee concerned. After that period, even in the event the executed judgment is reversed, there shall be restitution or reparation of
damages as equity and justice may require.
Sec. 47 of the present law providing that an administrative decision meting out the penalty of and 21, 1990. It was his alleged participation in the mass actions that was the basis
suspension or dismissal shall be immediately executory and that if the respondent appeals he of his preventive suspension and, later, his dismissal from the service.
shall be considered as being merely under preventive suspension if eventually he prevails is
taken from 37 of the Civil Service Decree of 1975 (P.D. No. 807). There was no similar However, the Civil Service Commission, in the questioned resolution, made a finding
provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the Commissioner that Mariano was not involved in the "mass actions" but was absent because he was
of Civil Service could order the immediate execution of an administrative decision in the in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC
interest of the public service.[20] Nor was there provision for immediate execution of imposed upon him the penalty of reprimand, the same was for his violation of
administrative decisions ordering dismissal or suspension in 695 of the Administrative Code reasonable office rules and regulations because he failed to inform the school of his
of 1917, as amended by C.A. No. 598, 1.[21] Nonetheless, under R.A. No. 2260 the payment of intended absence and neither did he file an application for leave covering such
salaries was ordered in cases in which employees were found to be innocent of the charges[22] absences.
or their suspension was held to be unjustified, because the penalty of suspension or dismissal
was executed without a finding by the Civil Service Commissioner that it was necessary "in the Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and
interest of the public service."[23] On the other hand, payment of back salaries was denied other pertinent civil service laws, in violations of reasonable office rules and
where it was shown that the employee concerned was guilty as charged and the immediate regulations, the first offense is punishable by reprimand. To deny petitioner Mariano
execution of the decision was ordered by the Civil Service Commissioner "in the interest of the his back wages during his suspension would be tantamount to punishing him after
public service."[24] his exoneration from the charges which caused his dismissal from the service.[26]

Nothing in what has thus far been said is inconsistent with the reason for denying salaries for In Jacinto v. Court of Appeals,[27] a public school teacher who was found guilty of violation of
the period of preventive suspension. We have said that an employee who is exonerated is not reasonable office rules and regulations for having been absent without leave and reprimanded
entitled to the payment of his salaries because his suspension, being authorized by law, cannot was given back salaries after she was exonerated of the charge of having taken part in the
be unjustified. To be entitled to such compensation, the employee must not only be found strikes.
innocent of the charges but his suspension must likewise be unjustified. But though an
employee is considered under preventive suspension during the pendency of his appeal in the Petitioner Secretary of Education contends, however, that respondents Abad, Bandigas, and
event he wins, his suspension is unjustified because what the law authorizes is preventive Somebang signed a letter in which they admitted having taken part in the mass action. This
suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal. question cannot be raised now. The Civil Service Commission gave no weight to this letter in
Hence, the employee concerned is entitled to reinstatement with full pay. Under existing view of individual letters written by the three citing reasons for their absences, to wit: Abad,
jurisprudence, such award should not exceed the equivalent of five years pay at the rate last because she decided to stay home to correct student papers; Bandigas, because she had to
received before the suspension was imposed.[25] accompany her brother to the Commission on Immigration, and Somebang because of
"economic reasons." Petitioner did not appeal from this ruling. Hence, he is bound by the
II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES ALTHOUGH FOUND GUILTY OF factual findings of the CSC and the appellate court.
VIOLATION OF OFFICE RULES AND REGULATIONS AND REPRIMANDED
WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated
Private respondents were exonerated of all charges against them for acts connected with the July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby AFFIRMED with the
teachers' strike of September and October 1990. Although they were absent from work, it was MODIFICATION that the award of salaries to private respondents shall be computed from the
not because of the strike. For being absent without leave, they were held liable for violation of time of their dismissal/suspension by the Department of Education, Culture, and Sports until
reasonable office rules and regulations for which the penalty is a reprimand. Their case thus their actual reinstatement, for a period not exceeding five years.
falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of
having violated reasonable office rules and regulations. Explaining the grant of salaries during SO ORDERED.
their suspension despite the fact that they were meted out reprimand, this Court stated:
Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima, and Gonzaga-Reyes, JJ., concur.
With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A Davide, C.J., concurs in the result and subject to the modification expressed in the separate
reading of the resolution of the Civil Service Commission will show that he was opinion of Justice Panganiban.
exonerated of the charges which formed the basis for his suspension. The Secretary Panganiban, J., please see separate opinion.
of the DECS charged him with and he was later found guilty of grave misconduct, Puno, Pardo, Buena, and Ynares-Santiago, JJ., join Justice Panganiban's separate opinion.
gross neglect of duty, gross violation of the Civil Service Law, rules and regulations Melo, J., in the result.
and reasonable office regulations, refusal to perform official duty, gross
insubordination, conduct prejudicial to the best interest of the service, and absence
without official leave, for his participation in the mass actions on September 18, 20
SEPARATE OPINION In Bangalisan v. Court of Appeals,[4] the Court ordered that Petitioner Mariano "be given back
wages without deduction or qualification from the time he was suspended until his actual
PANGANIBAN, J.: reinstatement which, under prevailing jurisprudence, should not exceed five years." The Court
ruled: "To deny petitioner Mariano his back wages during his suspension would be tantamount
I concur with the ponencia insofar as it denies the petition and affirms the Court of Appeals to punishing him after his exoneration from the charges which [had] caused his dismissal from
Decision and Resolutions finding private respondents guilty only of a violation of office rules the service."[5]
and regulations, meting upon them the penalty of reprimand and reinstating them in the civil
service. The same rationale was given in Jacinto v. Court of Appeals,[6] in which we also granted
Petitioner Jacinto "back wages, without deduction or qualification, from the time she was
I beg to disagree, however, insofar as it deprives private respondents their back salaries suspended until her actual reinstatement, the total of which, under prevailing jurisprudence,
corresponding to the entire period of their preventive suspension. should not exceed five years."

Private Respondents Liable In fact, in Garcia v. Chairman, Commission on Audit,[7] where the petitioner, several years after
for Violation of Reasonable he had been summarily dismissed from the government service purportedly for dishonesty,
Office Rules and Regulations was granted executive clemency "not because of lack of sufficient proof of his commission of
the offense but xxx, more importantly, he did not commit the offense charged," the Court
Like the majority, I do not find any reversible error or abuse of discretion in the factual finding found it "fair and just to award petitioner full back wages from 1 April 1975 when he was
of the Court of Appeals that private respondents did not actually participate in the September illegally dismissed, to 12 March 1984 when he was reinstated, xxx without deduction or
1991 mass actions staged in violation of law by various public schoolteachers. They were, qualification." Emphatizing with petitioner, the Court held:[8]
however, found to have absented themselves from their classes without filing an application
for leave of absence. For this lapse, they indeed deserve a reprimand, pursuant to Section 23, "xxx Verily, law, equity and justice dictate that petitioner be afforded compassion for
Rule XIV (Discipline) of the Rules Implementing the Civil Service Law, as well as existing the embarrassment, humiliation and, above all, injustice caused to him and his family
Jurisprudence which I shall cite later. by his unfounded dismissal. This Court cannot help surmising the painful stigma that
must have caused petitioner, the incursion on his dignity and reputation, for having
Private Respondents Entitled been adjudged, albeit wrongfully, a dishonest man xxx."
to Back Salaries Without
Qualification or Deduction Indeed, where the suspension of civil servants has, from the very beginning, no reason other
than to ensure an unhampered investigation, there is no justification for withholding their
Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension for civil service salaries, whether immediately upon investigation or after appeal or petition for review, much
employees charged with offenses punishable with removal or suspension: "(1) preventive less after their exoneration. They need not even be found fully innocent of any misdemeanor,
suspension pending investigation (51) and (2) preventive suspension pending appeal if the as the public school-teachers concerned in Bangalisan and Jacinto who were actually found to
penalty imposed by the disciplining authority is suspension or dismissal but, after review, the have violated reasonable office rules and regulations. Such administrative offense, however,
respondent is exonerated (47(4))."[1] is punishable with reprimand only, not suspension or dismissal. Hence, they were granted their
back salaries for the period of their suspension, because they had not committed any grave act
Accordingly, the esteemed justice makes a distinction in the grant of back salaries. In the first warranting their suspension.
instance, he says, the suspended employees (pending investigation) are NOT entitled to back
pay, regardless of whether they are eventually exonerated from the charges for which they The rationale for the grant of back salaries to suspended public servants is their exoneration
were investigated. However, if and when they are exonerated after appeal, they may be from the charges leveled against them that were punishable with either dismissal or
granted back salaries, but only those corresponding to the appeal or review period until actual suspension. Needless to say, only when the charges carry either of these extreme
reinstatement, and not exceeding five years. administrative penalties may they be preventively suspended pending investigation. If, after
investigation, they are found to be innocent or culpable of lesser offenses not punishable with
This stance being adopted by the majority reverses several unanimous en banc decisions, in suspension or dismissal, they must be immediately reinstated AND granted full back salaries
which this Court ordered payment of back salaries without qualification or deduction. In corresponding to the period of their suspension. In the first place, if they have been found to
Miranda v. Commission on Audit,[2] the Court, noting that the applicable law mandated that be not guilty of any offense warranting even just a suspension, there is no justifiable reason to
preventive suspension should not be longer than 90 days, deemed Miranda's suspension for deprive them of work and of income therefor. In these cases, their preventive suspension must
almost eight (8) years unreasonable and unjustified. It thus resolved that he was entitled to be deemed unjustified.
back wages for the period of his suspension not exceeding five (5) years, consistent with
existing jurisprudence.[3] The majority admits that preventive suspension pending investigation is not a penalty, but is
only a means of enabling the disciplining authority to conduct an unhampered investigation.[9]
Not being a penalty, there is therefore NO reason to deny employees their salaries for such injunction against the payment of back salaries for preventively suspended employees.
period, especially after they are proven innocent of any offense punishable with suspension or Moreover, the United States Constitution provides no express mandate, similar to that found
dismissal. I respectfully submit that to withhold an exonerated employee's pay for such period in our Constitution, to "afford full protection to labor" and to "protect the rights of workers
would in fact transform the nature of preventive suspension into a penalty -- a penalty which and promote their welfare."
is unauthorized by law, in contravention of the fundamental right of every individual to due
process, and therefore unconstitutional. The grant of back pay is a matter not merely of compassion and mercy for employees
temporarily suspended from work but, more important of Justice and equity. The exoneration
The "no-work-no-pay" principle should not be applied in these cases. We must consider that, of the employees proves that there was no reason at all to suspend them in the first place. To
ordinarily, suspended employees are willing to work, but they do not have a choice. Because deny them their incomes on the frivolous ground that the law does not expressly provide for
of some serious charges leveled against them, they are not allowed to report for work. the grant thereof would provide a tool for the oppression of civil servants who, though
Investigations may take up to ninety (90) days or three (3) months. In the meantime, they do innocent, may be falsely charged of grave or less grave administrative offenses. It plainly opens
not receive their salaries and other benefits. And yet, the charges against them may have been the door to harassment of public officials and employees by unjustly depriving them of their
baseless or aggravated without good reason, in which case their suspensions are unjustified meager incomes and consequently subjecting them and their families to difficult
ab initio. In these instances, I repeat, it is but right to grant them full back pays. circumstances.

Admittedly, the purpose behind preventive suspensions pending investigation is noble. It is Even in the private sector, the law and the existing jurisprudence grant employees who are
intended to enable the disciplining authorities or the investigating officials to probe the unjustly dismissed from work not only reinstatement without loss of seniority rights and other
charges against respondents by preventing the latter from intimidating or in any way privileges, but also full back wages, inclusive of allowances and other benefits or their monetary
influencing witnesses against them.[10] But, I submit, it would be totally unfair to respondents equivalent, computed from the time their compensation was withheld from them up to the time
who are undeserving of the penalty of suspension or dismissal to be deprived of their salaries they were actually reinstated.[16]
for such period. To repeat, they cannot be faulted for not rendering any work during the period
of preventive suspension, because that is merely what the law mandates. Civil Service Law Different
from Ombudsman Act
Significantly, the Civil Service Law does not state that exonerated employees are not entitled
to back salaries corresponding to the preventive suspension period. Such silence of the law In this regard, I believe the Civil Service Law should be distinguished from the Ombudsman Act
should not ipso facto be interpreted as a denial of the right, pursuant to rules on statutory (RA 6770) which categorically and expressly provides that the suspended employee who is
construction. In any event, the rules on the interpretation of laws are mere tools used to exonerated after preventive suspension is entitled to reinstatement, but not back salaries, viz.:
ascertain legislative intent.[11] They are not necessarily applicable at all times, particularly when
the intention to change the meaning of the previous law is not clear. In the case of the present "SEC. 24. Preventive suspension. - The Ombudsman or his Deputy may preventively
Civil Service Law, which is found in Executive Order No. 292 issued by then President Corazon suspend any officer or employee under his authority pending an investigation, if in
Aquino in the exercise of her legislative powers under the Freedom Constitution, its legislative his judgment the evidence of guilt is strong, and (a) the charge against such officer
purpose cannot be clearly established, because it has no recorded deliberations from which to or employee involves dishonesty, oppression or grave misconduct or neglect in the
verify such intent. Consequently, we should not completely rely on the general rule on performance of duty; (b) the charges would warrant removal from the service; or (c)
amendment by deletion.[12] We should not hold the omission of words in the later statute as the respondent's continued stay in office may prejudice the case filed against him.
necessarily altering the construction of the earlier one, for we may do so only "where the intent
of the legislature to make such change is clear of construction." [13] "The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six months, without pay, except when the
In any event, in the absence of an express prohibition on the payment of back salaries, any delay in the disposition of the case by the Office of the Ombudsman is due to the
doubt should be settled in favor of the employee. As our fundamental law explicitly mandates, fault, negligence or petition of the respondent, in which case the period of such delay
"The State shall afford full protection to labor xxx."[14] This Court has invariably declared that shall not be counted in computing the period of suspension herein provided."
it will not hesitate to tilt the scales of Justice in favor of the working class, for the Constitution (Emphasis supplied.)
dictates that "the State xxx shall protect the rights of workers and promote their welfare." [15]
There is no reason not to apply this principle in favor of civil service employees as well, for they Hence, in Callanta v. Ombudsman,[17] although some of the petitioners were only reprimanded
are very much part of the working class. And the government as their employer should set the by the Court for violation of the Ethical Standards Law, no back pay was awarded.
example in upholding the constitutional mandate to safeguard their rights and interests.
WHEREFORE, I vote to DENY the petition and to GRANT private respondents full back salaries,
Needless to say, our Constitution stands above all laws; more so, above any treatise including without qualification or deduction, from the time of suspension, including the period of
that of Mechem which the ponencia cites. The interpretation of general laws on public officers preventive suspension, until actual reinstatement.
in foreign jurisdictions has no application in the present case, as our law has no explicit
G.R. No. 112371, October 07, 1998 Respondent Commission based its aforesaid decision on an earlier COA decision No. 1745,
dated February 26, 1991, wherein it was held that a government official assigned a vehicle for
AIDA DOMINGO, PETITIONER, his/her official use, is not entitled to collect transportation allowance whether or not he/she
VS. actually used such vehicle.
COMMISSION ON AUDIT, RESPONDENT.
Undaunted, petitioner found her way to this court via the present petition, posing the issue of
DECISION whether or not a commutable transportation allowance may still be claimed by a government
PURISIMA, J.: official provided with a government vehicle, for the days the official did not actually use the
vehicle.
This is an original petition for certiorari under Rule 65 of the Rules of Court seeking to nullify
Decision No. 93-3081 of respondent Commission on Audit. The provision of law in point is found in Section 28 of Republic Act 6688, otherwise known as
the General Appropriations Act of 1989, to wit:
The antecedent facts that matter are, as follows:
Section 28. Representation and Transportation Allowances - x x x "The transportation
On March 23, 1987, petitioner Aida Domingo was appointed by the President as Regional allowance herein authorized shall not be granted to officials who are assigned a
Director, Region V of the Department of Social Welfare and Development, and she assumed government vehicle or - use government motor transportation, except as may be
office as such. approved by the President of the Philippines. Unless otherwise provided by law, no
amount appropriated in this Act shall be used to pay for representation and/or
Several government vehicles were thereafter endorsed to her office for the use of the transportation allowances, whether commutable or reimbursable, which exceed the
personnel of the entire Region V of DSWD, including a Toyota Land Cruiser Jeep, a Kaiser Cargo rates authorized under this Section. Previous administrative authorization not
Truck, a Trailer Jeep, a Willys Army Rebuilt Jeep, and a Nissan Double Cab. consistent with the rates and conditions herein specified shall no longer be valid and
payment shall not be allowed."
On November 14, 1989, Regional Auditor Manuel Caares sent a communication to the
petitioner informing her that post-audit reports on the DSWD Regional Office disbursement The General Appropriations Acts of 1988, 1990 and 1991 provide:
accounts showed that officials provided with government vehicles were still collecting
transportation allowances. The said Auditor then requested the petitioner, in her capacity as "The transportation allowance herein authorized shall not be granted to officials who
Regional Director, to instruct all persons concerned to cease from collecting the transportation are assigned a government vehicle or use a government motor transportation,
allowances in question. except as may be approved by the President of the Philippines." (GAA 1988)

However, despite the assignment to her of a vehicle for her official use, the petitioner asserted "The transportation allowance herein authorized shall not be granted to officials who
entitlement to a commutable transportation allowance and collected a total amount of P48, are assigned a government vehicle or use government transportation, except as may
600.00 as transportation allowance for the period from July 1, 1988 to December 31, 1990. be approved by the President of the Philippines." (GAA 1990)

Petitioner asked for reconsideration of the auditors directive; contending that she should only "The transportation allowance herein authorized shall not be granted to officials who
be disallowed to claim transportation allowance on the days she actually used a government are assigned a government vehicle or use government motor transportation." (GAA
vehicle. According to petitioner, she already refunded P1,600.00 for the thirty two (32) days 1991)
she actually utilized a government vehicle.
The aforesaid provision in the General Appropriations Law is based on Presidential Decree 733
But on May 18, 1990, the auditor denied petitioners motion for reconsideration, and issued and Commission on Audit Circular No. 75-6 dated November 7, 1975, regulating the use of
to petitioner CSB No. 92-003-101, dated July 8, 1992, with the following notation: government vehicles, aircrafts and watercrafts. Portion of said circular, reads:

"A special audit of your TA account was disallowed in accordance with COA Decision "VI. Prohibition Against Use of Government Vehicles by Officials provided with
No. 1745 dated February 26, 1991 by the Commission proper less payment made transportation allowance - "No official who has been furnished motor corporation
under OR No. 7714009 dated December 6, 1990 - P1,600.00." allowance by any government corporations or other office shall be allowed to use
motor vehicle transportation operated and maintained from funds appropriated in
On August 8, 1992, the petitioner appealed the auditors action to the Commission on Audit, the abovecited Decree. (Sec. 14, P.D. 733)."
which handed down its decision of August 25, 1993, finding petitioners appeal devoid of merit.
In the case of Bustamante vs. Commissioner on Audit, 216 SCRA 134, decided by this Court on
November 27, 1992, COA also disallowed the claim for transportation allowance of the legal
counsel of National Power Corporation because he was already issued a government vehicle.
Involving the circular aforementioned and almost the same facts as in this case, it was therein
held that COA Circular No. 75-6 is categorical in prohibiting the use of government vehicles by
officials receiving transportation allowance and in stressing that the use of government motor
vehicle and claim for transportation allowance are mutually exclusive and incompatible.

The issue need no longer be belabored for no less than this Court ruled in the aforesaid case
that a government official, to whom a motor vehicle has been assigned, cannot, at the same
time, claim transportation allowance.

Furthermore, it is an elementary rule that when the law speaks in clear and categorical
language, there is no need, in the absence of legislative intent to the contrary, for any
interpretation. Words and phrases used in a statute should be given their plain, ordinary, and
common usage meaning.[1]

In the case under consideration, it must be noted that the provisions of law referred to in the
General Appropriations Acts of 1988, 1989, 1990 and 1991, utilized the word "assigned" and
not "used." Websters Dictionary defines the word "assign" as "to transfer (property) to
another in trust." Had legislative intent been that government officials issued an official vehicle
could still collect transportation allowance if they do not actually use subject vehicle, the word
"use" instead of "assign" should have been employed.

As correctly pointed out by the Solicitor General, there are two instances when transportation
allowance cannot be granted to a government official, as when a government official is
assigned a vehicle, and when a government official uses government transportation facilities.
It is undeniable that several government vehicles were issued to the Regional Office of DSWD
in Region V. That the vehicles thereat were issued not to petitioner herself, as Regional
Director, but to the Regional Office itself, is of no moment. What is important and decisive is
that such vehicles were intended primarily for the official use of subject office and its officials
and employees. As maintained by the Solicitor General, whether or not the herein petitioner
used the vehicle assigned to her office, is not an issue, as it is undeniable that she could have
used the said vehicle whenever she wanted to since it was assigned to her office.

In the case of Ursua vs. Court of Appeals, 256 SCRA 147, it was held that there is a valid
presumption that undesirable consequences were never intended by a legislative measure and
a construction of which the statute is fairly susceptible is favored which will avoid
objectionable, mischievous, indefensible, wrongful, evil, and injurious consequences. It is
abundantly clear that the evil sought to be remedied by the legislative prohibition is the
collection of additional transportation allowance despite the availability of free transportation
supplied by a government motor vehicle assigned to the office.

WHEREFORE, the appealed decision of the Commission on Audit is hereby AFFIRMED. No


pronouncement as to costs.

SO ORDERED.

Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez
and Quisumbing, JJ., concur.
Narvasa, C.J. and Mendoza, J., on official leave.
G.R. No. 129616, April 17, 2002
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) AND RAMON ANINO, the Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals
PETITIONERS, Board, protesting against respondents appointment. The PPA Appeals Board, in a
VS. Resolution[6] dated August 11, 1988, sustained the protest and rendered ineffective
JULIETA MONSERATE, RESPONDENT. respondents appointment based on (1) CSC MC No. 5, s. 1988, Par. 3;[7] (2) CSC MC NO. 10,
s. 1986, Par. A, 1.2 and Par. B;[8] and (3) Civil Service Eligibility. These grounds were not
DECISION explained or discussed in the Resolution, the dispositive portion of which reads:
SANDOVAL-GUTIERREZ, J.:
WHEREFORE, premises considered, this Board upholds the appointment of Ramon
This petition for review on certiorari[1] seeks to set aside the Decision dated June 20, 1997 of A. Anino as Resources Management Division Manager of the Port Management
the Court of Appeals in CA-G.R. No. 39670,[2] declaring null and void the Resolution No. 952043 Office of Iloilo.
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 On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88[9]
Manager II of the Resources Management Division, Ports Management Office, Philippine Ports (entitled Creation of the PPA Managers Pool), dated September 28, 1988, issued by the new
Authority (PPA), Iloilo City. 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,
The facts are: Resource Management Division. In effect, the Special Order implemented the August 11,
1988 Resolution of the PPA Appeals Board.
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 Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification
position of Cashier II and then as Finance Officer (SG-16) in 1980.[3] 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
In the early part of 1988, when the PPA underwent a reorganization, respondent applied for because (1) she was not notified of the hearing before it; (2) she was not furnished a copy of
the permanent position of Manager II (SG-19) of the Resource Management Division, same the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner
office. The Comparative Data Sheet[4] accomplished by the PPA Reorganization Task Force Anino;[11] (3) she was not informed of the reasons behind her replacement; and (4) their Port
shows the ranking of the six (6) aspirants to the said position, thus: Manager (in Iloilo City), who was then an official member of the Board, was not included in the
said proceedings.
COMPARATIVE DATA SHEET
On November 8, 1988, pending resolution of her appeal/request for clarification, respondent
OFFICE: PMO ILOILO received a copy of PPA Special Order No. 492-88[12] dated October 21, 1988, also issued by
DIVISION: RES. MANAGEMENT DIVISION General Manager Dayan. This PPA Order officially reassigned her to the position of
POSITION: DIVISION MANAGER Administrative Officer (SG-15) which was petitioner Anino's former position and was lower
REQUIRED CS ELIG.: CS PROF / RA 1080 than her previous position as Finance Officer (SG 16) before she was appointed as Division
Manager.
CANDIDATES ELIGIBILITY xxx TOTAL
Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager
1. MONSERATE, JULIETA CS Prof. xxx 79.5 Dayan on her earlier appeal/request for clarification, respondent filed on November 25, 1988
2. ANINO, RAMON 1st grade xxx 70 a precautionary appeal[13] with the CSC. She manifested that as of said date (November 25),
3. TEODOSIO, APRIL PD 907 (CPA) xxx 67 she has not yet been furnished a certified copy of the PPA Appeals Board Resolution.
4. MORTOLA, DARIO CS Prof. xxx 67
5. ESPINOSA, AMALIK Bar xxx 63.5 On January 2, 1989, respondent received a copy of her new appointment as Administrative
6. PERFECTO, BASCOS RA 1080 xxx 59.5 Officer dated October 1, 1988.[14] It was also during this time when she learned that PPA
General Manager Dayan had just issued petitioners appointment dated October 21, 1988 as
On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed [5] Manager II in the Resource Management Division effective February 1, 1988.
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, On January 16, 1989, respondent filed with the CSC an appeal formally protesting against
through Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA) approved petitioner Aninos appointment and at the same time questioning the propriety of the August
her appointment. 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 MANAGER TO ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO SECURITY
meantime, she assumed the position of Administrative Officer. OF TENURE.

Eventually, the CSC, in its Resolution No. 95-2043[15] dated March 21, 1995, dismissed II. THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-
respondents appeal, thus: NIGH RULE THAT RESPONDENT MONSERATES APPOINTMENT AS RESOURCE
MANAGEMENT DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT
It is well-established rule that an appointment, although approved by this BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN
Commission, does not become final until the protest filed against it is decided by the HER FAVOR BY THE AGENCY OR THE CSC.
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 III. THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN
a protest is seasonably filed. This is covered by Section 19, Rule VI of the Omnibus IGNORING THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN
Rules implementing EO 292 x x x. QUESTION TO BE RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE
QUALIFICATION STANDARD.[18]
Monserates claim that she is more qualified than Anino is not relevant to the issue
before this Commission. In cases of protest filed or appealed to the Commission, The pivotal issue in this case is whether or not there was due process when respondent was
the main question to be resolved is whether or not the appointee meets the replaced by petitioner Anino from her position as Manager II, Resource Management Division,
qualification standard. x x x. The Commission will not disturb the choice of the and demoted as Administrative Officer.
appointing authority as long as the appointee meets the qualification prescribed for
the position in question. 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 filed a motion for reconsideration but the same was denied by the CSC in its respondent was not charged of any administrative case. Rather, she was displaced from her
Resolution No. 95-6640 dated October 24, 1995. position as an aftermath of the PPA reorganization, authorized by law, the implementation of
which having been carried out with utmost good faith.
In due time, respondent filed with the Court of Appeals a petition for review impleading as
respondents the PPA General Manager and petitioner Anino. Furthermore, the said displacement was just the necessary effect of the August 11, 1988
Resolution of the PPA Appeals Board which sustained petitioner Aninos timely protest against
On June 20, 1997, the Court of Appeals rendered a Decision [16] nullifying the twin Resolutions respondents appointment. Petitioners theorize that the appointment of respondent as
of the CSC. It ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not Resource Management Division Manager did not become final until the protest filed against
supported by evidence and that the same was irregularly issued due to lack of proper notice her was favorably decided in her favor by the CSC. In support of this contention, they cited
to respondent with respect to the Boards proceedings. It concluded that her reassignment Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292
from the position of Manager II, Resource Management Division (SG-19), to the position of (otherwise known as the Administrative Code of 1987), which provides inter alia:
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: 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
THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and entitled to receive the salary attached to the position. However, the appointment,
void Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and together with the decision of the department head, shall be submitted to the
October 21, 1988 (should be October 24, 1995), of the Civil service Commission; and Commission for appropriate action within 30 days from the date of its issuance,
directing the reinstatement of the petitioner to the position of Resource otherwise the appointment becomes ineffective thereafter. Likewise, such
Management Division Manager II. 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.
SO ORDERED.
Petitioners also contend that the head of an agency, being the appointing authority, is the one
Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present most knowledgeable to decide who can best perform the functions of the office. The
petition. On November 30, 1997, petitioner Anino retired from the government service.[17] 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
Petitioners ascribe to the Court of Appeals the following errors: 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
I. THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT Law and Rules.
MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION
The petition is unmeritorious. 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
In the first place, the PPA reorganization in 1988 has nothing to do with respondents demotion the Appellate Court:
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 In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding
reorganization that respondent applied to the higher position of Division Manager II. In fact, the appointment of the private respondent (Ramon Anino) as Division Manager, the
the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself shows grounds against petitioner's (Julieta Monserate) appointment were: a) the CSC MC
that respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six (6) No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c)
contenders to the said post. Respondent was eventually issued a permanent appointment as Civil service eligibility.
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 "x x x
later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the
Civil Service Field Office-PPA. 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
Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 criminal case at the time of her appointment as Manager. x x x.
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 With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review,
subsequently issued by then PPA General Manager Rogelio Dayan: 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
1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded performance rating compared to the private respondent who only got 2.03. x x x.
respondent Monserate from the PPA Managers pool-list;
On eligibility, she has a Career Service Professional eligibility while the private
2. Appointment of respondent, dated October 1, 1988, to the position of respondent only has a First Grade Civil Service Eligibility.
Administrative Officer;
She added that she was not aware of any proceeding on her demotion as a Division
3. PPA Special Order No. 492-88 dated October 21, 1988 which officially Manager. As a matter of fact, it was only upon her iniative sometime during the
reassigned respondent to the position of Administrative Officer; and 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
4. Appointment of petitioner Anino, dated October 21, 1988, to the position of respondents appointment as Division Manager even if on August 11, 1988, he was
Manager II, Resource Management Division, effective February 1, 1988. not yet extended any appointment. As a matter of fact, he was appointed only on
October 1, 1988 (should be October 21, 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 Furthermore, she said that the resolution of the PPA Appeals Board appears
sustaining petitioner Aninos protest against respondents appointment. 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
Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Order dated September 29, 1988 already ordering her demotion. She was not at all
Resolution of the PPA Appeals Board which upholds the appointment of Ramon A. Anino as given the oppurtunity of defending herself before the Appeals Board.
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 - x x x.
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 In the case now before us, the petitioner did not receive or was not given a copy of
appointment which was not yet existing. 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-
Equally questionable are the grounds for respondents demotion stated in the August 11, 1998 88.[19]
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 From all indications, it is indubitable that substantial and procedural irregularities attended
or explanation by the Board to enable respondent to know the reason for her demotion. respondents demotion from the position of Manager II, Resource Management Division, to
the lower position of Administrative Officer. Indeed, her demotion, tantamount to a
revocation of her appointment as Manager II, is a patent violation of her constitutional rights
to security of tenure and due process. In Aquino vs. Civil Service Commission,[20] this Court In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful
emphasized that once an appointment is issued and the moment the appointee assumes a incumbency, is not entitled to the emoluments attached to the office, even if he occupied the
position in the civil service under a completed appointment, he acquires a legal, not merely office in good faith. This rule, however, cannot be applied squarely on the present case in view
equitable, right (to the position) which is protected not only by statute, but also by the of its peculiar circumstances. Respondent had assumed under protest the position of
constitution, and cannot be taken away from him either by revocation of the appointment, or Administrative Officer sometime in the latter part of 1988, which position she currently
by removal, except for cause, and with previous notice and hearing. 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
Concededly, the appointing authority has a wide latitude of discretion in the selection and the corresponding emoluments cannot be considered as an abandonment of her claim to her
appointment of qualified persons to vacant positions in the civil service. [21] However, the rightful office (Division Manager), she cannot recover full backwages for the period when she
moment the discretionary power of appointment is exercised and the appointee assumed the was unlawfully deprived thereof. She is entitled only to backpay differentials for the period
duties and functions of the position, such appointment cannot anymore be revoked by the starting from her assumption as Administrative Officer up to the time of her actual
appointing authority and appoint another in his stead, except for cause. Here, no iota of reinstatement to her rightful position as Division Manager. Such backpay differentials pertain
evidence was ever established to justify the revocation of respondent's appointment by to the difference between the salary rates for the positions of Manager II and Administrative
demoting her. Respondents security of tenure guaranteed under the 1987 Constitution Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully
[Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the assumed the contested position up to the time of his retirement on November 30, 1997.
appointing power.[22]
WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated
Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as June 20, 1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino
Manager II in the Resource Management Division, it merely restored her appointment to the is ordered to pay respondent Julieta Monserate backpay differentials pertaining to the period
said position to which her right to security of tenure had already attached. To be sure, her from the time he wrongfully assumed the contested position of Manager II up to his retirement
position as Manager II never became vacant since her demotion was void. In this jurisdiction, on November 30, 1997.
"an appointment to a non-vacant position in the civil service is null and void ab initio."[23]
SO ORDERED.
We now delve on the backwages in favor of respondent.
Vitug (Acting Chairman), Panganiban, and Carpio, JJ., concur.
The challenged Court of Appeals Decision ordered the reinstatement of respondent without Melo, J. (Chairman), on official leave.
awarding backwages. This matter becomes controversial because respondent assumed the
lower position of Administrative Officer during the pendency of her protest against petitioner
Aninos appointment to the contested position. Also, petitioner Anino retired from the service
on November 30, 1997.

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

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