FIRST DIVISION The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred
nate Blue Ribbon and the Saguisag Committee were apparently referred to the
[G.R. No. 145368. April 12, 2002]
SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as
Ombudsman, respondent.
DECISION
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223 constituting a
Committee for the preparation of the National Centennial Celebration in 1998. The Committee was mandated to
take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the
Declaration of Philippine Independence and the Inauguration of the Malolos Congress.[1]
Subsequently, President Fidel V. Ramos issued Executive Order No. 128, reconstituting the Committee
for the preparation of the National Centennial Celebrations in 1998. It renamed the Committee as the National
Centennial Commission. Appointed to chair the reconstituted Commission was Vice-President Salvador H.
Laurel.Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons.[2]
Characterized as an ad-hoc body, the existence of the Commission shall terminate upon the completion
of all activities related to the Centennial Celebrations.[3] Like its predecessor Committee, the Commission was
tasked to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of
the Declaration of Philippine Independence and the Inauguration of the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged with the responsibility to
prepare, for approval of the President, a Comprehensive Plan for the Centennial Celebrations within six (6)
months from the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariat to be
composed of, among others, detailed personnel from the Presidential Management Staff, the National
Commission for Culture and the Arts, and the National Historical Institute. Said Secretariat shall be headed by a
full time Executive Director who shall be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department of Tourism and
the presidents Contingent Fund, in an amount to be recommended by the Commission, and approved by the
President. Appropriations for succeeding years shall be incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was
created.[4] Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9)
directors. Petitioner was elected Expocorp Chief Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate
denouncing alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark
Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator Cosetengs privilege speech was
referred to the Committee on Accountability of Public Officers and Investigation (The Blue Ribbon Committee)
and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an ad hoc
and independent citizens committee to investigate all the facts and circumstances surrounding the Philippine
centennial projects, including its component activities. Former Senator Rene A.V. Saguisag was appointed to
chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate its
Committee Final Report No. 30 dated February 26, 1999. Among the Committees recommendations was the
prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the
rules on public bidding, relative to the award of centennial contracts to AK (Asia Construction & Development
Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR
(Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for
participating in the scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation of the anti-graft law.[5]
Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended the further
investigation by the Ombudsman, and indictment, in proper cases of, among others, NCC Chair Salvador H.
Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713,
and Article 217 of the Revised Penal Code.
Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureau issued
its Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before the
Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against
former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q.
Pea and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019,
as amended in relation to PD 1594 and COA Rules and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant. [6]
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and Preliminary
Investigation Bureau, directed petitioner to submit his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the
jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion was
denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a resolution finding
probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan for
conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594. The resolution
also directed that an information for violation of the said law be filed against Laurel and Pea.Ombudsman Aniano
A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, commanding
respondents to desist from filing any information before the Sandiganbayan or any court against petitioner for
alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer
because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE FREEDOM
RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT
PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-
OWNED OR CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A PUBLIC OFFICER AS
DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.[7]
In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs. Sandiganbayan,[9] where it was
held that the jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over
public officers of Grade 27 and higher. As petitioners position was purportedly not classified as Grade 27 or
higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Courts decision in Uy, we held that it is the prosecutor, not
the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional
trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:
1
The clear import of such pronouncement is to recognize the authority of the State and regular provincial and city
prosecutors under the Department of Justice to have control over prosecution of cases falling within the
jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases
rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 (An Act Providing
for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes) which
vests upon the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan And this is further
buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall
have the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction clearly serve to limit the
Ombudsmans and Special Prosecutors authority to cases cognizable by the Sandiganbayan. [Emphasis in the
original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in
the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The
Court explained the rationale for this reversal:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It
pertains to any act or omission of any public officer or employee when such act or omission appears
to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable
by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or
omission of any public official is broad enough to embrace any crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving
the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting
the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman to take over, at any
stage, from any investigatory agency of the government, the investigation of such cases. The grant of this
authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and
employees by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by
the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other
offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by
the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and
non-feasance committed by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of
the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component
of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the
Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases
within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated
by law to act on all complaints against officers and employees of the government and to enforce their
administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the
law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the
government service to act as special investigator or prosecutor to assist in the investigation and prosecution of
certain cases. Those designated or deputized to assist him work under his supervision and control. The law
likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction
in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of the most important functions
of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power
to make him a more active and effective agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. We
first address the argument that petitioner, as Chair of the NCC, was not a public officer.
The Constitution[10] describes the Ombudsman and his Deputies as protectors of the people, who shall act
promptly on complaints filed in any form or manner against public officials or employees of the government,
or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.
Among the awesome powers, functions, and duties vested by the Constitution [11] upon the Office of the
Ombudsman is to [i]nvestigate any act or omission of any public official, employee, office or agency, when
such act or omission appears to be illegal, unjust, improper, or inefficient.
The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise known
as the Ombudsman Act of 1989. Sections 13 and 15(1) of said law respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people shall act promptly on
complaints file in any form or manner against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient
service by the Government to the people.
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions
and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the
investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance and non-
feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his
tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance
by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations.[12]
Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A
definition of public officers cited in jurisprudence [13] is that provided by Mechem, a recognized authority on the
subject:
A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so
invested is a public officer.[14]
The characteristics of a public office, according to Mechem, include the delegation of sovereign functions,
its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the
designation of the position as an office.[15]
Petitioner submits that some of these characteristics are not present in the position of NCC Chair,
namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any
compensation; and (3) continuance, the tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign functions of government as
[t]he most important characteristic in determining whether a position is a public office or not.
The most important characteristic which distinguishes an office from an employment or contract is that the
creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of
government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the
country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public
benefit. Unless the powers conferred are of this nature, the individual is not a public officer. [16]
Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law
did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the
NCC then be described as executive?
2
 We hold that the NCC performs executive functions. The executive power is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into practical operation and
enforcing their due observance.[17] The executive function, therefore, concerns the implementation of the
policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports)
thereof:
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 resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National
Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an
important vehicle for fostering nationhood and a strong sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured only through long-range planning and
continuous developmental programming;
Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly
in communication and information dissemination, is necessary for long-range planning and continuous
developmental programming;
Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the
multisectoral components from the business, cultural, and business sectors to serve as effective instruments
from the launching and overseeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the
need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations of the
Philippine Centennial and wider participation from the government and non-government or private
organizations. It also referred to the need to rationalize the relevance of historical links with other countries.
The NCC was precisely created to execute the foregoing policies and objectives, to carry them
into effect. Thus, the Commission was vested with the following functions:
(a) To undertake the overall study, conceptualization, formulation and implementation of
programs and projects on the utilization of culture, arts, literature and media as vehicles for
history, economic endeavors, and reinvigorating the spirit of national unity and sense of
accomplishment in every Filipino in the context of the Centennial Celebrations. In this regard,
it shall include a Philippine National Exposition 98 within Metro Manila, the original eight
provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness and celebration of the
Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all information about
the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation of the programs and
projects;
(e) To prioritize the refurbishment of historical sites and structures nationwide. In this regard, the
Commission shall formulate schemes (e.g. lease-maintained-and-transfer, build-operate-
transfer, and similar arrangements) to ensure the preservation and maintenance of the
historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation, and to invite private
individuals and organizations to assist it in the performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs, projects, activities as well as
the status of the preparations for the Celebration.[18]
It bears noting the President, upon whom the executive power is vested, [19] created the NCC
by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2 describes the
nature of executive orders:
SEC. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character
in implementation or execution of constitutional or statutory powers shall be promulgated in executive
orders. [Underscoring ours.]
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 this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont you agree that the task of
the centennial commission was also to focus on the long term over all socio economic
development of the zone and Central Luzon by attracting investors in the area because of
the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to touch on by lack of
material time I could not but that is a very important point. When I was made Chairman I
wanted the Expo to be in Batangas because I am a Batangeo but President Ramos said Mr.
Vice President the Central Luzon is suffering, suffering because of the eruption of Mt.
Pinatubo let us try to catalize [sic] economic recovery in that area by putting this Expo in
Clark Field and so it was done I agreed and Your Honor if I may also mention we wanted to
generate employment aside from attracting business investments and employment. And
the Estrada administration decided to junk this project there 48, 40 thousand people who
lost job, they were employed in Expo. And our target was to provide 75 thousand jobs. It
would have really calibrated, accelerated the development of Central Luzon. Now, I think
they are going back to that because they had the airport and there are plan to revive the
Expo site into key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental
state policy.[20]
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the holding by a municipality of a
town fiesta is a proprietary rather than a governmental function. Petitioner argues that the holding of a
nationwide celebration which marked the nations 100 th birthday may be likened to a national fiesta which
involved only the exercise of the national governments proprietary function. [22] In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply gives authority to the
municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta
even if the purpose is to commemorate a religious or historical event of the town is in essence an act for
the special benefit of the community and notfor the general welfare of the public performed in pursuance of a
policy of the state. The mere fact that the celebration, as claimed, was not to secure profit or gain but merely to
provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is
not a source of income for the town, nonetheless it is [a] private undertaking as distinguished from the
maintenance of public schools, jails, and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an
undertaking or function of a municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is
that it is government in essence, otherwise, the function becomes private or propriety in character. Easily, no
governmental or public policy of the state is involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court cautioned
that there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function
of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive.
Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the surrounding circumstances
plus the political, social, and cultural backgrounds could produce a conclusion different from that in Torio:
3
We came across an interesting case which shows that surrounding circumstances plus the political, social, and
cultural backgrounds may have a decisive bearing on this question. The case of Pope v. City of New Haven, et
al. was an action to recover damages for personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused by defendants negligence. The defendants
demurred to the complaint invoking the defense that the city was engaged in the performance of a public
governmental duty from which it received no pecuniary benefit and for negligence in the performance of which
no statutory liability is imposed. This demurrer was sustained by the Superior Court of New Haven
Country. Plaintiff sought to amend his complaint to allege that the celebration was for the corporate advantage
of the city. This was denied. In affirming the order, the Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance of purely public governmental
duties, unless made liable by statute.
A municipality corporation, which under permissive authority of its charter or of statute, conducted a public
Fourth of July celebration, including a display of fireworks, and sent up a bomb intended to explode in the air,
but which failed to explode until it reached the ground, and then killed a spectator, was engaged in the
performance of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our
statutes. All or nearly all of the other states have similar statutes.While there is no United States statute making
a similar provision, the different departments of the government recognize, and have recognized since the
government was established, July 4th as a national holiday. Throughout the country it has been recognized and
celebrated as such.These celebrations, calculated to entertain and instruct the people generally and to arouse
and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting
of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic
air sometimes preceded by the firing of cannon and followed by fireworks. That such celebrations are of
advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. x x
x the buildings erected by the corporation, in accordance with plans which shall have been adopted by the United
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial
Celebrations was meant to commemorate the birth of our nation after centuries of struggle against our former
colonial master, to memorialize the liberation of our people from oppression by a foreign power. 1998 marked
100 years of independence and sovereignty as one united nation. The Celebrations was an occasion to reflect
upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a vehicle for fostering nationhood
and a strong sense of Filipino identity, an opportunity to showcase Filipino heritage and thereby strengthen
Filipino values. The significance of the Celebrations could not have been lost on petitioner, who remarked during
the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love for freedom,
love for country, that is the over-all goal that has to make everybody feel proud that he is a Filipino, proud of
our history, proud of what our forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its
Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A
salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The
salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is
provided for it is a naked or honorary office, and is supposed to be accepted merely for the public
good.[23]Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to
a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. [24] But it is a
public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc body make said
commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely
temporary and local cannot ordinarily be considered an office. But, says Chief Justice Marshall, if a duty be a
continuing one, which is defined by rules prescribed by the government and not by contract, which an individual
is appointed by government to perform, who enters on the duties pertaining to his station without any contract
defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish
such a charge or employment from an office of the person who performs the duties from an officer.
At the same time, however, this element of continuance can not be considered as indispensable, for, if
the other elements are present it can make no difference, says Pearson, C.J., whether there be but one
act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to
be held for years or during good behavior.[25]
Our conclusion that petitioner is a public officer finds support in In Re Corliss.[26]There the Supreme Court
of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an office of
trust as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of
the United States Constitution, a person holding an office of trust or profit under the United States is disqualified
from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds an office of trust under the
United States, and that he is therefore disqualified for the office of elector of President and Vice-President of the
United States.
The commission was created under a statute of the United States approved March 3, 1871. That statute
provides for the holding of an exhibition of American and foreign arts, products, and manufactures, under the
auspices of the government of the United States, and for the constitution of a commission, to consist of more
than one delegate from each State and from each Territory of the United States, whose functions shall continue
until close of the exhibition, and whose duty it shall be to prepare and superintend the execution of the plan for
holding the exhibition. Under the statute the commissioners are appointed by the President of the United States,
on the nomination of the governor of the States and Territories respectively. Various duties were imposed upon
the commission, and under the statute provision was to be made for it to have exclusive control of the exhibit
before the President should announce, by proclamation, the date and place of opening and holding the
exhibition. By an act of Congress approved June 1st, 1872, the duties and functions of the commission were
further increased and defined. That act created a corporation, called The Centennial Board of Finance, to
cooperate with the commission and to raise and disburse the funds. It was to be organized under the direction
of the commission. The seventh section of the act provides that the grounds for exhibition shall be prepared and
States Centennial Commission; and the rules and regulations of said corporation, governing rates for entrance
and admission fees, or otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public,
shall be fixed and established by the United States Centennial Commission; and no grant conferring rights or
privileges of any description connected with said grounds or buildings, or relating to said exhibition or
celebration, shall be made without the consent of the United States Centennial Commission, and said
commission shall have power to control, change, or revoke all such grants, and shall appoint all judges and
examiners and award all premiums. The tenth section of the act provides that it shall be the duty of the United
States Centennial Commission to supervise the closing up of the affairs of said corporation, to audit its accounts,
and submit in a report to the President of the United States the financial results of the centennial exhibition.
It is apparent from this statement, which is but partial, that the duties and functions of the commission were
various, delicate, and important; that they could be successfully performed only by men of large experience and
knowledge of affairs; and that they were not merely subordinate and provisional, but in the highest degree
authoritative, discretionary, and final in their character. We think that persons performing such duties and
exercising such functions, in pursuance of statutory direction and authority, are not to be regarded as mere
employees, agents, or committee men, but that they are, properly speaking, officers, and that the places which
they hold are offices. It appears, moreover, that they were originally regarded as officers by Congress; for the
act under which they were appointed declares, section 7, that no compensation for services shall be paid to the
commissioners or other officers, provided for in this act, from the treasury of the United States. The only other
officers provided for were the alternates appointed to serve as commissioners when the commissioners were
unable to attend.
Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public
office, we need no longer delve at length on the issue of whether Expocorp is a private or a public
corporation. Even assuming that Expocorp is a private corporation, petitioners position as Chief Executive Officer
(CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of
Expocorp must be viewed in the light of his powers and functions as NCC Chair.[27]
Finally, it is contended that since petitioner supposedly did not receive any compensation for his services
as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and
Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads:
4
SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized
by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to
be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to
officers and employees of offices or government corporations charged with the grant of licenses or permits or
other concessions.
A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows:
SEC. 2. Definition of terms. As used in this Act, the term
xxx
(b) Public officer includes elective and appointive officials and employees, permanent or temporary, whether in
the classified or unclassified or exemption service receiving compensation, even nominal, from the
government as defined in the preceding paragraph. [Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a public officer is expressly limited to the
application of R.A. No. 3019. Said definition does not apply for purposes of determining the Ombudsmans
jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices
Act involves the appreciation of evidence and interpretation of law, matters that are best resolved at trial.
To illustrate, the use of the term includes in Section 2 (b) indicates that the definition is not
restrictive.[28] The Anti-Graft and Corrupt Practices Act is just one of several laws that define public officers.
Article 203 of the Revised Penal Code, for example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or appointment by competent authority, takes
part in the performance of public functions in the Government of Philippines, or performs in said Government or
in any of its branches public duties as an employee, agent or subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987, [29] on the other hand, states:
Officer as distinguished from clerk or employee, refers to a person whose duties not being of a clerical or
manual nature, involves the exercise of discretion in the performance of the functions of the government. When
used with reference to a person having authority to do a particular act or perform a particular person in the
exercise of governmental power, officer includes any government employee, agent or body having authority to
do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards
for Public Officials and Employees), one may be considered a public official whether or not one receives
compensation, thus:
Public Officials include elective and appointive officials and employees, permanent or temporary, whether in the
career or non-career service including military and police personnel, whether or not they receive compensation,
regardless of amount.
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term compensation, which
is not defined by said law, has many meanings.
Under particular circumstances, compensation has been held to include allowance for personal expenses,
commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution
or a balancing of accounts, salary, and wages.[30]
How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any
salary, the records do not reveal if he received any allowance, fee, honorarium, or some other form of
compensation. Notably, under the by-laws of Expocorp, the CEO is entitled to per diems and
compensation.[31] Would such fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court
from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Courts Resolution
dated September 24, 2001 is hereby LIFTED.
SO ORDERED.
EN BANC
G. R. No. 155027 February 28, 2006
THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R. Acorda, Petitioner,
vs.
Hon. ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon. EDGARDO E.
BATENGA in his capacity as Undersecretary for Civil Relations and Administration of the Department
of National Defense, Respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with a prayer
to declare as void Department Circular No. 04 of the Department of National Defense (DND), dated 10 June
2002.
Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body organized under
Republic Act No. 2640, dated 18 June 1960, as amended, and duly registered with the Securities and Exchange
Commission. Respondent Angelo T. Reyes was the Secretary of National Defense (DND Secretary) who issued
the assailed Department Circular No. 04, dated 10 June 2002. Respondent Edgardo E. Batenga was the DND
Undersecretary for Civil Relations and Administration who was tasked by the respondent DND Secretary to
conduct an extensive management audit of the records of petitioner.
The factual and procedural antecedents of this case are as follows:
Petitioner VFP was created under Rep. Act No. 2640,1 a statute approved on 18 June 1960.
On 15 April 2002, petitioners incumbent president received a letter dated 13 April 2002 which reads:
Col. Emmanuel V. De Ocampo (Ret.)
President
Veterans Federation of the Philippines
Makati, Metro Manila
5
Dear Col. De Ocampo:
Please be informed that during the preparation of my briefing before the Cabinet and the President last March 9,
2002, we came across some legal bases which tended to show that there is an organizational and management
relationship between Veterans Federation of the Philippines and the Philippine Veterans Bank which for many
years have been inadvertently overlooked.
I refer to Republic Act 2640 creating the body corporate known as the VFP and Republic Act 3518 creating the
Phil. Vets [sic] Bank.
1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under the control and
supervision of the Secretary of National Defense."
2. RA 2640 Section 12 ... "On or before the last day of the month following the end of each fiscal
year, the Federation shall make and transmit to the President of the Philippines or to the Secretary
of National Defense, a report of its proceedings for the past year, including a full, complete and
itemized report of receipts and expenditures of whatever kind."
3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans Bank, and for
Other Purposes) provides in Section 6 that ... "the affairs and business of the Philippine Veterans
Bank shall be directed and its property managed, controlled and preserved, unless otherwise
provided in this Act, by a Board of Directors consisting of eleven (11) members to be composed of
three ex officio members to wit: the Philippine Veterans Administrator, the President of the
Veterans Federation of the Philippines and the Secretary of National Defense x x x.
It is therefore in the context of clarification and rectification of what should have been done by the DND
(Department of National Defense) for and about the VFP and PVB that I am requesting appropriate information
and report about these two corporate bodies.
Therefore it may become necessary that a conference with your staffs in these two bodies be set.
Thank you and anticipating your action on this request.
Very truly yours,
(SGD) ANGELO T. REYES
[DND] Secretary
On 10 June 2002, respondent DND Secretary issued the assailed DND Department Circular No. 04 entitled,
"Further Implementing the Provisions of Sections 1 2 and 23 of Republic Act No. 2640," the full text of which
appears as follows:
Department of National Defense
Department Circular No. 04
Subject: Further Implementing the Provisions of Sections 1 & 2 of
Republic Act No. 2640
Authority: Republic Act No. 2640
Executive Order No. 292 dated July 25, 1987
Section 1
These rules shall govern and apply to the management and operations of the Veterans Federation of the
Philippines (VFP) within the context provided by EO 292 s-1987.
Section 2 DEFINITION OF TERMS for the purpose of these rules, the terms, phrases or words used herein
shall, unless the context indicates otherwise, mean or be understood as follows:
Supervision and Control it shall include authority to act directly whenever a specific function is entrusted by
law or regulation to a subordinate; direct the performance of a duty; restrain the commission of acts; approve,
reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of
plans and programs; and prescribe standards, guidelines, plans and programs.
Power of Control power to alter, modify, nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former to that of the latter.
Supervision means overseeing or the power of an officer to see to it that their subordinate officers perform
their duties; it does not allow the superior to annul the acts of the subordinate.
Administrative Process embraces matter concerning the procedure in the disposition of both routine and
contested matters, and the matter in which determinations are made, enforced or reviewed.
Government Agency as defined under PD 1445, a government agency or agency of government or "agency"
refers to any department, bureau or office of the national government, or any of its branches or
instrumentalities, of any political subdivision, as well as any government owned or controlled corporation,
including its subsidiaries, or other self-governing board or commission of the government.
Government Owned and Controlled Corporation (GOCC) refer to any agency organized as a stock or non-stock
corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and
owned by the government directly or through its instrumentalities wholly or, where applicable as in the case of
stock corporations, to the extent of at least 50% of its capital stock.
Fund sum of money or other resources set aside for the purpose of carrying out specific activities or attaining
certain objectives in accordance with special regulations, restrictions or limitations and constitutes an
independent, fiscal and accounting entity.
Government Fund includes public monies of every sort and other resources pertaining to any agency of the
government.
Veteran any person who rendered military service in the land, sea or air forces of the Philippines during the
revolution against Spain, the Philippine American War, World War II, including Filipino citizens who served in
Allied Forces in the Philippine territory and foreign nationals who served in Philippine forces; the Korean
campaign, the Vietnam campaign, the Anti-dissidence campaign, or other wars or military campaigns; or who
rendered military service in the Armed Forces of the Philippines and has been honorably discharged or separated
after at least six (6) years total cumulative active service or sooner separated due to the death or disability
arising from a wound or injury received or sickness or disease incurred in line of duty while in the active service.
Section 3 Relationship Between the DND and the VFP
3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans associations and
organizations in the Philippines) and their associates and successors are hereby created a body corporate, under
the control and supervision of the Secretary of National Defense, under the name, style and title of "Veterans
Federation of the Philippines ..."
The Secretary of National Defense shall be charged with the duty of supervising the veterans and allied program
under the jurisdiction of the Department. It shall also have the responsibility of overseeing and ensuring the
judicious and effective implementation of veterans assistance, benefits, and utilization of VFP assets.
6
3.2 To effectively supervise and control the corporate affairs of the Federation and to safeguard the interests
and welfare of the veterans who are also wards of the State entrusted under the protection of the DND, the
Secretary may personally or through a designated representative, require the submission of reports, documents
and other papers regarding any or all of the Federations business transactions particularly those relating to the
VFP functions under Section 2 of RA 2640.
The Secretary or his representative may attend conferences of the supreme council of the VFP and such other
activities he may deem relevant.
3.3 The Secretary shall from time to time issue guidelines, directives and other orders governing vital
government activities including, but not limited to, the conduct of elections; the acquisition, management and
dispositions of properties, the accounting of funds, financial interests, stocks and bonds, corporate investments,
etc. and such other transactions which may affect the interests of the veterans.
3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD
1445) i.e. government funds shall be spent or used for public purposes; trust funds shall be available and may
be spent only for the specific purpose for which the trust was created or the funds received; fiscal responsibility
shall, to the greatest extent, be shared by all those exercising authority over the financial affairs, transactions,
and operations of the federation; disbursements or dispositions of government funds or property shall invariably
bear the approval of the proper officials.
Section 4 Records of the FEDERATION
As a corporate body and in accordance with appropriate laws, it shall keep and carefully preserve records of all
business transactions, minutes of meetings of stockholders/members of the board of directors reflecting all
details about such activity.
All such records and minutes shall be open to directors, trustees, stockholders, and other members for
inspection and copies of which may be requested.
As a body corporate, it shall submit the following: annual report; proceedings of council meetings; report of
operations together with financial statement of its assets and liabilities and fund balance per year; statement of
revenues and expenses per year; statement of cash flows per year as certified by the accountant; and other
documents/reports as may be necessary or required by the SND.
Section 5 Submission of Annual and Periodic Report
As mandated under appropriate laws, the following reports shall be submitted to the SND, to wit:
a. Annual Report to be submitted not later than every January 31 of the following year. Said report
shall consist of the following:
1. Financial Report of the Federation, signed by the Treasurer General and Auditor
General;
2. Roster of Members of the Supreme Council;
3. Roster of Members of the Executive Board and National Officers; and
4. Current listing of officers and management of VFP.
b. Report on the proceedings of each Supreme Council Meeting to be submitted not later than one
month after the meeting;
c. Report of the VFP President as may be required by SND or as may be found necessary by the
President of the Federation;
d. Resolutions passed by the Executive Board and the Supreme Council for confirmation to be
submitted not later than one month after the approval of the resolution;
e. After Operation/Activity Reports to be submitted not later than one month after such operation or
activity;
Section 6 Penal Sanctions
As an attached agency to a regular department of the government, the VFP and all its instrumentalities, officials
and personnel shall be subject to the penal provisions of such laws, rules and regulations applicable to the
attached agencies of the government.
In a letter dated 6 August 2002 addressed to the President of petitioner, respondent DND Secretary reiterated
his instructions in his earlier letter of 13 April 2002.
Thereafter, petitioners President received a letter dated 23 August 2002 from respondent Undersecretary,
informing him that Department Order No. 129 dated 23 August 2002 directed "the conduct of a Management
Audit of the Veterans Federation of the Philippines."4 The letter went on to state that respondent DND Secretary
"believes that the mandate given by said law can be meaningfully exercised if this department can better
appreciate the functions, responsibilities and situation on the ground and this can be done by undertaking a
thorough study of the organization."5
Respondent Undersecretary also requested both for a briefing and for documents on personnel, ongoing projects
and petitioners financial condition. The letter ended by stating that, after the briefing, the support staff of the
Audit Committee would begin their work to meet the one-month target within which to submit a report.
A letter dated 28 August 2003 informed petitioners President that the Management Audit Group headed by the
Undersecretary would be paying petitioner a visit on 30 August 2002 for an update on VFPs different affiliates
and the financial statement of the Federation.
Subsequently, the Secretary General of the VFP sent an undated letter to respondent DND Secretary, with notice
to respondent Undersecretary for Civil Relations and Administration, complaining about the alleged broadness of
the scope of the management audit and requesting the suspension thereof until such time that specific areas of
the audit shall have been agreed upon.
The request was, however, denied by the Undersecretary in a letter dated 4 September 2002 on the ground that
a specific timeframe had been set for the activity.
Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil
Procedure, praying for the following reliefs:
1. For this Court to issue a temporary restraining order and a writ of preliminary prohibitory and
mandatory injunction to enjoin respondent Secretary and all those acting under his discretion and
authority from: (a) implementing DND Department Circular No. 04; and (b) continuing with the
ongoing management audit of petitioners books of account;
2. After hearing the issues on notice
a. Declare DND Department Circular No. 04 as null and void for being ultra vires;
b. Convert the writ of prohibition, preliminary prohibitory and mandatory injunction into
a permanent one.6
GIVING DUE COURSE TO THE PETITION
Petitioner asserts that, although cases which question the constitutionality or validity of administrative issuances
are ordinarily filed with the lower courts, the urgency and substantive importance of the question on hand and
7
the public interest attendant to the subject matter of the petition justify its being filed with this Court directly as
an original action.7
It is settled that the Regional Trial Court and the Court of Appeals also exercise original jurisdiction over
petitions for certiorari and prohibition. As we have held in numerous occasions, however, such concurrence of
original jurisdiction does not mean that the party seeking extraordinary writs has the absolute freedom to file
his petition in the court of his choice.8 Thus, in Commissioner of Internal Revenue v. Leal,9 we held that:
Such concurrence of original jurisdiction among the Regional Trial Court, the Court of Appeals and this Court,
however, does not mean that the party seeking any of the extraordinary writs has the absolute freedom to file
his petition in the court of his choice. The hierarchy of courts in our judicial system determines the appropriate
forum for these petitions. Thus, petitions for the issuance of the said writs against the first level (inferior) courts
must be filed with the Regional Trial Court and those against the latter, with the Court of Appeals. A direct
invocation of this Courts original jurisdiction to issue these writs should be allowed only where there are special
and important reasons therefor, specifically and sufficiently set forth in the petition. This is the established policy
to prevent inordinate demands upon the Courts time and attention, which are better devoted to matters within
its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket. Thus, it was proper for
petitioner to institute the special civil action for certiorari with the Court of Appeals assailing the RTC order
denying his motion to dismiss based on lack of jurisdiction.
The petition itself, in this case, does not specifically and sufficiently set forth the special and important reasons
why the Court should give due course to this petition in the first instance, hereby failing to fulfill the conditions
set forth in Commissioner of Internal Revenue v. Leal.10 While we reiterate the policies set forth in Leal and
allied cases and continue to abhor the propensity of a number of litigants to disregard the principle of hierarchy
of courts in our judicial system, we, however, resolve to take judicial notice of the fact that the persons who
stand to lose in a possible protracted litigation in this case are war veterans, many of whom have precious little
time left to enjoy the benefits that can be conferred by petitioner corporation. This bickering for the power over
petitioner corporation, an entity created to represent and defend the interests of Filipino veterans, should be
resolved as soon as possible in order for it to once and for all direct its resources to its rightful beneficiaries all
over the country. All these said, we hereby resolve to give due course to this petition.
ISSUES
Petitioner mainly alleges that the rules and guidelines laid down in the assailed Department Circular No. 04
expanded the scope of "control and supervision" beyond what has been laid down in Rep. Act No.
2640.11 Petitioner further submits the following issues to this Court:
1. Was the challenged department circular passed in the valid exercise of the respondent Secretarys
"control and supervision"?
2. Could the challenged department circular validly lay standards classifying the VFP, an essentially
civilian organization, within the ambit of statutes only applying to government entities?
3. Does the department circular, which grants respondent direct management control on the VFP,
unduly encroach on the prerogatives of VFPs governing body?
At the heart of all these issues and all of petitioners prayers and assertions in this case is petitioners claim that
it is a private non-government corporation.
CENTRAL ISSUE:
IS THE VFP A PRIVATE CORPORATION?
Petitioner claims that it is not a public nor a governmental entity but a private organization, and advances this
claim to prove that the issuance of DND Department Circular No. 04 is an invalid exercise of respondent
Secretarys control and supervision.12
This Court has defined the power of control as "the power of an officer to alter or modify or nullify or set aside
what a subordinate has done in the performance of his duties and to substitute the judgment of the former to
that of the latter."13 The power of supervision, on the other hand, means "overseeing, or the power or authority
of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the
former may take such action or step as prescribed by law to make them perform their duties." 14 These
definitions are synonymous with the definitions in the assailed Department Circular No. 04, while the other
provisions of the assailed department circular are mere consequences of control and supervision as defined.
Thus, in order for petitioners premise to be able to support its conclusion, petitioners should be deemed to
imply either of the following: (1) that it is unconstitutional/impermissible for the law (Rep. Act No. 2640) to
grant control and/or supervision to the Secretary of National Defense over a private organization, or (2) that the
control and/or supervision that can be granted to the Secretary of National Defense over a private organization
is limited, and is not as strong as they are defined above.
The following provision of the 1935 Constitution, the organic act controlling at the time of the creation of the
VFP in 1960, is relevant:
Section 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation
of private corporations, unless such corporations are owned and controlled by the Government or any
subdivision or instrumentality thereof.15
On the other hand, its counterparts in the 1973 and 1987 constitutions are the following:
Section 4. The National Assembly shall not, except by general law, provide for the formation, organization, or
regulation of private corporations, unless such corporations are owned or controlled by the government or any
subdivision or instrumentality thereof.16
Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of
private corporations. Government-owned and controlled corporations may be created or established by special
charters in the interest of the common good and subject to the test of economic viability. 17
From the foregoing, it is crystal clear that our constitutions explicitly prohibit the regulation by special laws of
private corporations, with the exception of government-owned or controlled corporations (GOCCs). Hence, it
would be impermissible for the law to grant control of the VFP to a public official if it were neither a public
corporation, an unincorporated governmental entity, nor a GOCC. 18 Said constitutional provisions can even be
read to prohibit the creation itself of the VFP if it were neither of the three mentioned above, but we cannot go
into that in this case since there is no challenge to the creation of the VFP in the petition as to permit this Court
from considering its nullity.
Petitioner vigorously argues that the VFP is a private non-government organization, pressing on the following
contentions:
1. The VFP does not possess the elements which would qualify it as a public office, particularly the
possession/delegation of a portion of sovereign power of government to be exercised for the benefit
of the public;
2. VFP funds are not public funds because
a) No budgetary appropriations or government funds have been released to the VFP
directly or indirectly from the Department of Budget and Management (DBM);
b) VFP funds come from membership dues;
c) The lease rentals raised from the use of government lands reserved for the VFP are
private in character and do not belong to the government. Said rentals are fruits of VFPs
labor and efforts in managing and administering the lands for VFP purposes and
objectives. A close analogy would be any Filipino citizen settling on government land and
who tills the land for his livelihood and sustenance. The fruits of his labor belong to him
and not to the owner of the land. Such fruits are not public funds.
8
 3. Although the juridical personality of the VFP emanates from a statutory charter, the VFP retains
its essential character as a private, civilian federation of veterans voluntarily formed by the veterans
themselves to attain a unity of effort, purpose and objectives, e.g.
a. The members of the VFP are individual members and retirees from the public and
military service;
b. Membership in the VFP is voluntary, not compulsory;
c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the GSIS
Law, but by the Labor Code and the SSS Law;
d. The VFP has its own Constitution and By-Laws and is governed by a Supreme Council
who are elected from and by the members themselves;
4. The Administrative Code of 1987 does not provide that the VFP is an attached agency, nor does it
provide that it is an entity under the control and supervision of the DND in the context of the
provisions of said code.
5. The DBM declared that the VFP is a non-government organization and issued a certificate that the
VFP has not been a direct recipient of any funds released by the DBM.
These arguments of petitioner notwithstanding, we are constrained to rule that petitioner is in fact a public
corporation. Before responding to petitioners allegations one by one, here are the more evident reasons why
the VFP is a public corporation:
(1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known as the Veterans
Federation of the Philippines, Defining its Powers, and for Other Purposes."
(2) Any action or decision of the Federation or of the Supreme Council shall be subject to the
approval of the Secretary of Defense.19
(3) The VFP is required to submit annual reports of its proceedings for the past year, including a full,
complete and itemized report of receipts and expenditures of whatever kind, to the President of the
Philippines or to the Secretary of National Defense.20
(4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as among the
government-owned and controlled corporations that will not be privatized.
(5) In Ang Bagong Bayani OFW Labor Party v. COMELEC,21 this Court held in a minute resolution
that the "VFP [Veterans Federation Party] is an adjunct of the government, as it is merely an
incarnation of the Veterans Federation of the Philippines.
And now to answer petitioners reasons for insisting that it is a private corporation:
1. Petitioner claims that the VFP does not possess the elements which would qualify it as a public office,
particularly the possession/delegation of a portion of sovereign power of government to be exercised for the
benefit of the public;
In Laurel v. Desierto,22 we adopted the definition of Mechem of a public office, that it is "the right, authority and
duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure
of the creating power, an individual is invested with some portion of the sovereign functions of the government,
to be exercised by him for the benefit of the public."
In the same case, we went on to adopt Mechems view that the delegation to the individual of some of the
sovereign functions of government is "[t]he most important characteristic" in determining whether a position is
a public office or not.23 Such portion of the sovereignty of the country, either legislative, executive or judicial,
must attach to the office for the time being, to be exercised for the public benefit. Unless the powers conferred
are of this nature, the individual is not a public officer. The most important characteristic which distinguishes an
office from an employment or contract is that the creation and conferring of an office involves a delegation to
the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the
public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches,
for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the
individual is not a public officer.24 The issue, therefore, is whether the VFAs officers have been delegated some
portion of the sovereignty of the country, to be exercised for the public benefit.
In several cases, we have dealt with the issue of whether certain specific activities can be classified as sovereign
functions. These cases, which deal with activities not immediately apparent to be sovereign functions, upheld
the public sovereign nature of operations needed either to promote social justice 25 or to stimulate patriotic
sentiments and love of country.26
As regards the promotion of social justice as a sovereign function, we held in Agricultural Credit and Cooperative
Financing Administration (ACCFA) v. Confederation of Unions in Government Corporations and Offices
(CUGCO),27that the compelling urgency with which the Constitution speaks of social justice does not leave any
doubt that land reform is not an optional but a compulsory function of sovereignty. The same reason was used
in our declaration that socialized housing is likewise a sovereign function.28 Highly significant here is the
observation of former Chief Justice Querube Makalintal:
The growing complexities of modern society, however, have rendered this traditional classification of the
functions of government [into constituent and ministrant functions] quite unrealistic, not to say obsolete. The
areas which used to be left to private enterprise and initiative and which the government was called upon to
enter optionally, and only "because it was better equipped to administer for the public welfare than is any
private individual or group of individuals," continue to lose their well-defined boundaries and to be absorbed
within activities that the government must undertake in its sovereign capacity if it is to meet the increasing
social challenges of the times. Here[,] as almost everywhere else[,] the tendency is undoubtedly towards a
greater socialization of economic forces. Here, of course, this development was envisioned, indeed adopted as a
national policy, by the Constitution itself in its declaration of principle concerning the promotion of social
justice.29 (Emphasis supplied.)
It was, on the other hand, the fact that the National Centennial Celebrations was calculated to arouse and
stimulate patriotic sentiments and love of country that it was considered as a sovereign function in Laurel v.
Desierto.30 In Laurel, the Court then took its cue from a similar case in the United States involving a Fourth of
July fireworks display. The holding of the Centennial Celebrations was held to be an executive function, as it was
intended to enforce Article XIV of the Constitution which provides for the conservation, promotion and
popularization of the nations historical and cultural heritage and resources, and artistic relations.
In the case at bar, the functions of petitioner corporation enshrined in Section 4 of Rep. Act No. 2640 31 should
most certainly fall within the category of sovereign functions. The protection of the interests of war veterans is
not only meant to promote social justice, but is also intended to reward patriotism. All of the functions in Section
4 concern the well-being of war veterans, our countrymen who risked their lives and lost their limbs in fighting
for and defending our nation. It would be injustice of catastrophic proportions to say that it is beyond
sovereigntys power to reward the people who defended her.
Like the holding of the National Centennial Celebrations, the functions of the VFP are executive functions,
designed to implement not just the provisions of Rep. Act No. 2640, but also, and more importantly, the
Constitutional mandate for the State to provide immediate and adequate care, benefits and other forms of
assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. 32
2. Petitioner claims that VFP funds are not public funds.
Petitioner claims that its funds are not public funds because no budgetary appropriations or government funds
have been released to the VFP directly or indirectly from the DBM, and because VFP funds come from
membership dues and lease rentals earned from administering government lands reserved for the VFP.
The fact that no budgetary appropriations have been released to the VFP does not prove that it is a private
corporation. The DBM indeed did not see it fit to propose budgetary appropriations to the VFP, having itself
believed that the VFP is a private corporation.33 If the DBM, however, is mistaken as to its conclusion regarding
the nature of VFPs incorporation, its previous assertions will not prevent future budgetary appropriations to the
VFP. The erroneous application of the law by public officers does not bar a subsequent correct application of the
law.34
9
Nevertheless, funds in the hands of the VFP from whatever source are public funds, and can be used only for
public purposes. This is mandated by the following provisions of Rep. Act No. 2640:
(1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit of the
Veterans of the Philippines;"
(2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of the Supreme
Council shall be subject to the approval of the Secretary of National Defense." Hence, all activities of
the VFP to which the Supreme Council can apply its funds are subject to the approval of the
Secretary of National Defense;
(3) Section 4 provides that "the Federation shall exist solely for the purposes of a benevolent
character, and not for the pecuniary benefit of its members;"1avvphil.net
(4) Section 6 provides that all funds of the VFP in excess of operating expenses are "reserved for
disbursement, as the Supreme Council may authorize, for the purposes stated in Section two of this
Act;"
(5) Section 10 provides that "(a)ny donation or contribution which from time to time may be made
to the Federation by the Government of the Philippines or any of its subdivisions, branches, offices,
agencies or instrumentalities shall be expended by the Supreme Council only for the purposes
mentioned in this Act."; and finally,
(6) Section 12 requires the submission of annual reports of VFP proceedings for the past year,
including a full, complete and itemized report of receipts and expenditures of whatever kind, to the
President of the Philippines or to the Secretary of National Defense.
It is important to note here that the membership dues collected from the individual members of VFPs affiliate
organizations do not become public funds while they are still funds of the affiliate organizations. A close reading
of Section 135 of Rep. Act No. 2640 reveals that what has been created as a body corporate is not the individual
membership of the affiliate organizations, but merely the aggregation of the heads of the affiliate organizations.
Thus, only the money remitted by the affiliate organizations to the VFP partake in the public nature of the VFP
funds.
In Republic v. COCOFED,36 we held that the Coconut Levy Funds are public funds because, inter alia, (1) they
were meant to be for the benefit of the coconut industry, one of the major industries supporting the national
economy, and its farmers; and (2) the very laws governing coconut levies recognize their public character. The
same is true with regard to the VFP funds. No less public is the use for the VFP funds, as such use is limited to
the purposes of the VFP which we have ruled to be sovereign functions. Likewise, the law governing VFP funds
(Rep. Act No. 2640) recognizes the public character of the funds as shown in the enumerated provisions above.
We also observed in the same COCOFED case that "(e)ven if the money is allocated for a special purpose and
raised by special means, it is still public in character." 37 In the case at bar, some of the funds were raised by
even more special means, as the contributions from affiliate organizations of the VFP can hardly be regarded as
enforced contributions as to be considered taxes. They are more in the nature of donations which have always
been recognized as a source of public funding. Affiliate organizations of the VFP cannot complain of their
contributions becoming public funds upon the receipt by the VFP, since they are presumed aware of the
provisions of Rep. Act No. 2640 which not only specifies the exclusive purposes for which VFP funds can be
used, but also provides for the regulation of such funds by the national government through the Secretary of
National Defense. There is nothing wrong, whether legally or morally, from raising revenues through non-
traditional methods. As remarked by Justice Florentino Feliciano in his concurring opinion in Kilosbayan,
Incorporated v. Guingona, Jr.38 where he explained that the funds raised by the On-line Lottery System were
also public in nature, thus:
x x x [T]he more successful the government is in raising revenues by non-traditional methods such as PAGCOR
operations and privatization measures, the lesser will be the pressure upon the traditional sources of public
revenues, i.e., the pocket books of individual taxpayers and importers.
Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto 39 which was cited by
Respondents. Petitioner claims that among the reasons National Centennial Commission Chair Salvador Laurel
was considered a public officer was the fact that his compensation was derived from public funds. Having ruled
that VFP funds from whatever source are public funds, we can safely conclude that the Supreme Councils
compensation, taken as they are from VFP funds under the term "operating expenses" in Section 6 of Rep. Act
No. 2640, are derived from public funds. The particular nomenclature of the compensation taken from VFP funds
is not even of relevance here. As we said in Laurel concerning compensation as an element of public office:
Under particular circumstances, "compensation" has been held to include allowance for personal expenses,
commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution
or a balancing of accounts, salary, and wages.40
3. Petitioner argues that it is a civilian federation where membership is voluntary.
Petitioner claims that the Secretary of National Defense "historically did not indulge in the direct or
micromanagement of the VFP precisely because it is essentially a civilian organization where membership is
voluntary."41 This reliance of petitioner on what has "historically" been done is erroneous, since laws are not
repealed by disuse, custom, or practice to the contrary.42 Furthermore, as earlier stated, the erroneous
application of the law by public officers does not bar a subsequent correct application of the law. 43
Neither is the civilian nature of VFP relevant in this case. The Constitution does not contain any prohibition,
express or implied, against the grant of control and/or supervision to the Secretary of National Defense over a
civilian organization. The Office of the Secretary of National Defense is itself a civilian office, its occupant being
an alter ego of the civilian Commander-in-Chief. This set-up is the manifestation of the constitutional principle
that civilian authority is, at all times, supreme over the military. 44 There being no such constitutional prohibition,
the creation of a civilian public organization by Rep. Act No. 2640 is not rendered invalid by its being placed
under the control and supervision of the Secretary of National Defense.
Petitioners stand that the VFP is a private corporation because membership thereto is voluntary is likewise
erroneous. As stated above, the membership of the VFP is not the individual membership of the affiliate
organizations, but merely the aggregation of the heads of such affiliate organizations. These heads forming the
VFP then elect the Supreme Council and the other officers,45 of this public corporation.
4. Petitioner claims that the Administrative Code of 1987 does not provide that the VFP is an attached agency,
and nor does it provide that it is an entity under the control and supervision of the DND in the context of the
provisions of said code.
The Administrative Code, by giving definitions of the various entities covered by it, acknowledges that its
enumeration is not exclusive. The Administrative Code could not be said to have repealed nor enormously
modified Rep. Act No. 2640 by implication, as such repeal or enormous modification by implication is not
favored in statutory construction.46
5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government organization in its
certification that the VFP "has not been a direct recipient of any funds released by the DBM."
Respondents claim that the supposed declaration of the DBM that petitioner is a non-government organization is
not persuasive, since DBM is not a quasi-judicial agency. They aver that what we have said of the Bureau of
Local Government Finance (BLGF) in Philippine Long Distance Telephone Company (PLDT) v. City of Davao 47 can
be applied to DBM:
In any case, it is contended, the ruling of the Bureau of Local Government Finance (BLGF) that petitioners
exemption from local taxes has been restored is a contemporaneous construction of Section 23 [of R.A. No.
7925 and, as such, is entitled to great weight.
The ruling of the BLGF has been considered in this case. But unlike the Court of Tax Appeals, which is a special
court created for the purpose of reviewing tax cases, the BLGF was created merely to provide consultative
services and technical assistance to local governments and the general public on local taxation and other related
matters. Thus, the rule that the "Court will not set aside conclusions rendered by the CTA, which is, by the very
nature of its function, dedicated exclusively to the study and consideration of tax problems and has necessarily
developed an expertise on the subject, unless there has been an abuse or improvident exercise of authority"
cannot apply in the case of the BLGF.
On this score, though, we disagree with respondents and hold that the DBMs appraisal is considered persuasive.
Respondents misread the PLDT case in asserting that only quasi-judicial agencies determination can be
considered persuasive. What the PLDT case points out is that, for an administrative agencys opinion to be
10
persuasive, the administrative agency involved (whether it has quasi-judicial powers or not) must be an expert
in the field they are giving their opinion on.
The DBM is indeed an expert on determining what the various government agencies and corporations are. This
determination is necessary for the DBM to fulfill its mandate:
Sec. 2. Mandate. - The Department shall be responsible for the formulation and implementation of the National
Budget with the goal of attaining our national socio-economic plans and objectives.
The Department shall be responsible for the efficient and sound utilization of government funds and revenues to
effectively achieve our country's development objectives.48
The persuasiveness of the DBM opinion has, however, been overcome by all the previous explanations we have
laid so far. It has also been eclipsed by another similarly persuasive opinion, that of the Department of National
Defense embodied in Department Circular No. 04. The DND is clearly more of an expert with respect to the
determination of the entities under it, and its Administrative Rules and Regulations are entitled to great respect
and have in their favor the presumption of legality.49
The DBM opinion furthermore suffers from its lack of explanation and justification in the "certification of non-
receipt" where said opinion was given. The DBM has not furnished, in said certification or elsewhere, an
explanation for its opinion that VFP is a non-government organization.
THE FATE OF DEPARTMENT CIRCULAR NO. 04
Our ruling that petitioner is a public corporation is determinative of whether or not we should grant petitioners
prayer to declare Department Circular No. 04 void.
Petitioner assails Department Circular No. 04 on the ground that it expanded the scope of control and
supervision beyond what has been laid down in Rep. Act No. 2640. Petitioner alleges that "(t)he equation of the
meaning of `control and `supervision of the Administrative Code of 1987 as the same `control and supervision
under Rep. Act No. 2640, takes out the context of the original legislative intent from the peculiar surrounding
circumstances and conditions that brought about the creation of the VFP." 50 Petitioner claims that the VFP "was
intended as a self-governing autonomous body with a Supreme Council as governing authority," and that the
assailed circular "pre-empts VFPs original self-governance and autonomy (in) representing veterans
organizations, and substitutes government discretion and decisions to that of the veterans own
determination."51 Petitioner says that the circulars provisions practically render the Supreme Council inutile,
despite its being the statutory governing body of the VFP.52
As previously mentioned, this Court has defined the power of control as "the power of an officer to alter or
modify or nullify or set aside what a subordinate has done in the performance of his duties and to substitute the
judgment of the former to that of the latter."53 The power of supervision, on the other hand, means "overseeing,
or the power or authority of an officer to see that subordinate officers perform their duties." 54 Under the
Administrative Code of 1987:55
Supervision and control shall include the authority to act directly whenever a specific function is entrusted by
law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the
execution of plans and programs; and prescribe standards, guidelines, plans and programs. x x x
The definition of the power of control and supervision under Section 2 of the assailed Department Circular are
synonymous with the foregoing definitions. Consequently, and considering that petitioner is a public corporation,
the provisions of the assailed Department Circular No. 04 did not supplant nor modify the provisions of Republic
Act No. 2640, thus not violating the settled rule that "all such (administrative) issuances must not override, but
must remain consistent and in harmony with the law they seek to apply or implement. Administrative rules and
regulations are intended to carry out, neither to supplant nor to modify, the law." 56
Section 3.2 of the assailed department circular, which authorizes the Secretary of National Defense to "x x x
personally or through a designated representative, require the submission of reports, documents and other
papers regarding any or all of the Federations business functions, x x x."
as well as Section 3.3 which allows the Secretary of DND to
x x x [F]rom time to time issue guidelines, directives and other orders governing vital government activities
including, but not limited to, the conduct of elections, the acquisition, management and dispositions of
properties, the accounting of funds, financial interests, stocks and bonds, corporate investments, etc. and such
other transactions which may affect the interests of the veterans.
are merely consequences of both the power of control and supervision granted by Rep. Act No. 2640. The power
to alter or modify or nullify or set aside what a subordinate has done in the performance of his duties, or to see
to it that subordinate officers perform their duties in accordance with law, necessarily requires the ability of the
superior officer to monitor, as closely as it desires, the acts of the subordinate.
The same is true with respect to Sections 4 and 5 of the assailed Department Circular No. 04, which requires the
preservation of the records of the Federation and the submission to the Secretary of National Defense of annual
and periodic reports.
Petitioner likewise claims that the assailed DND Department Circular No. 04 was never published, and hence
void.57 Respondents deny such non-publication.58
We have put forth both the rule and the exception on the publication of administrative rules and regulations in
the case of Taada v. Tuvera:59
x x x Administrative rules and regulations must also be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors concerning the rules on guidelines to be followed by
their subordinates in the performance of their duties.
Even assuming that the assailed circular was not published, its validity is not affected by such non-publication
for the reason that its provisions fall under two of the exceptions enumerated in Taada.
Department Circular No. 04 is an internal regulation. As we have ruled, they are meant to regulate a public
corporation under the control of DND, and not the public in general. As likewise discussed above, what has been
created as a body corporate by Rep. Act No. 2640 is not the individual membership of the affiliate organizations
of the VFP, but merely the aggregation of the heads of the affiliate organizations. Consequently, the individual
members of the affiliate organizations, who are not public officers, are beyond the regulation of the circular.
Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in nature. They add nothing to
the law. They do not affect the substantial rights of any person, whether party to the case at bar or not. In
Sections 2 and 3, control and supervision are defined, mentioning actions that can be performed as
consequences of such control and supervision, but without specifying the particular actions that shall be
rendered to control and supervise the VFP. Section 6, in the same vein, merely state what the drafters of the
circular perceived to be consequences of being an attached agency to a regular department of the government,
enumerating sanctions and remedies provided by law that may be availed of whenever desired.
Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department Circular, which provides
that
3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD
1445) i.e. government funds shall be spent or used for public purposes; trust funds shall be available and may
be spent only for the specific purpose for which the trust was created or the funds received; fiscal responsibility
shall, to the greatest extent, be shared by all those exercising authority over the financial affairs, transactions,
and operations of the federation; disbursements or dispositions of government funds or property shall invariably
bear the approval of the proper officials.
Since we have also previously determined that VFP funds are public funds, there is likewise no reason to declare
this provision invalid. Section 3.4 is correct in requiring the VFP funds to be used for public purposes, but only
insofar the term "public purposes" is construed to mean "public purposes enumerated in Rep. Act No. 2640."
11
Having in their possession public funds, the officers of the VFP, especially its fiscal officers, must indeed share in
the fiscal responsibility to the greatest extent.
As to petitioners allegation that VFP was intended as a self-governing autonomous body with a Supreme Council
as governing authority, we find that the provisions of Rep. Act No. 2640 concerning the control and supervision
of the Secretary of National Defense clearly withholds from the VFP complete autonomy. To say, however, that
such provisions render the VFP inutile is an exaggeration. An office is not rendered inutile by the fact that it is
placed under the control of a higher office. These subordinate offices, such as the executive offices under the
control of the President, exercise discretion at the first instance. While their acts can be altered or even set
aside by the superior, these acts are effective and are deemed the acts of the superior until they are modified.
Surely, we cannot say that the offices of all the Department Secretaries are worthless positions.
In sum, the assailed DND Department Circular No. 04 does not supplant nor modify and is, on the contrary,
perfectly in consonance with Rep. Act No. 2640. Petitioner VFP is a public corporation. As such, it can be placed
under the control and supervision of the Secretary of National Defense, who consequently has the power to
conduct an extensive management audit of petitioner corporation.
WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the Department of National
Defense Department Circular No. 04 is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 95237-38 September 13, 1991
DAVAO CITY WATER DISTRICT, CAGAYAN DE ORO CITY WATER DISTRICT, METRO CEBU WATER
DISTRICT, ZAMBOANGA CITY WATER DISTRICT, LEYTE METRO WATER DISTRICT, BUTUAN CITY
WATER DISTRICT, CAMARINES NORTE WATER DISTRICT, LAGUNA WATER DISTRICT, DUMAGUETE
CITY WATER DISTRICT, LA UNION WATER DISTRICT, BAYBAY WATER DISTRICT, METRO LINGAYEN
WATER DISTRICT, URDANETA WATER DISTRICT, COTABATO CITY WATER DISTRICT, MARAWI
WATER DISTRICT, TAGUM WATER DISTRICT, DIGOS WATER DISTRICT, BISLIG WATER DISTRICT,
and MECAUAYAN WATER DISTRICT,petitioners,
vs.
CIVIL SERVICE COMMISSION, and COMMISSION ON AUDIT, respondents.
Rodolfo S. De Jesus for petitioners.
Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for CSC.
MEDIALDEA, J.:p
Whether or not the Local Water Districts formed and created pursuant to the provisions of Presidential Decree
No. 198, as amended, are government-owned or controlled corporations with original charter falling under the
Civil Service Law and/or covered by the visitorial power of the Commission on Audit is the issue which the
petitioners entreat this Court, en banc, to shed light on.
Petitioners are among the more than five hundred (500) water districts existing throughout the country formed
pursuant to the provisions of Presidential Decree No. 198, as amended by Presidential Decrees Nos. 768 and
1479, otherwise known as the "Provincial Water Utilities Act of 1973."
Presidential Decree No. 198 was issued by the then President Ferdinand E. Marcos by virtue of his legislative
power under Proclamation No. 1081. It authorized the different local legislative bodies to form and create their
respective water districts through a resolution they will pass subject to the guidelines, rules and regulations
therein laid down. The decree further created and formed the "Local Water Utilities Administration" (LWUA), a
national agency attached to the National Economic and Development Authority (NEDA), and granted with
regulatory power necessary to optimize public service from water utilities operations.
The respondents, on the other hand, are the Civil Service Commission (CSC) and the Commission on Audit
(COA), both government agencies and represented in this case by the Solicitor General.
On April 17, 1989, this Court ruled in the case of Tanjay Water District v. Gabaton, et al. (G.R. No. 63742, 172
SCRA 253):
Significantly, Article IX (B), Section 2(1) of the 1987 Constitution provides that the Civil Service
embraces all branches, subdivisions, instrumentalities, and agencies of the government, including
government-owned and controlled corporations with original charters. Inasmuch as PD No. 198, as
amended, is the original charter of the petitioner, Tanjay Water District, and respondent Tarlac
Water District and all water districts in the country, they come under the coverage of the Civil
Service Law, rules and regulations. (Sec. 35, Art. VIII and Sec. 37, Art. IX of PD No. 807).
As an offshoot of the immediately cited ruling, the CSC. issued Resolution No. 90-575, the dispositive portion of
which reads:
NOW THEREFORE, in view of all the foregoing, the Commission resolved, as it hereby resolves to
rule that Local Water Districts, being quasi-public corporations created by law to perform public
services and supply public wants, the matter of hiring and firing of its officers and employees should
be governed by the Civil Service Law, rules and regulations. Henceforth, all appointments of
personnel of the different local water districts in the country shall be submitted to the Commission
for appropriate action. (Rollo. p. 22).
However, on May 16, 1990, in G.R. No. 85760, entitled "Metro Iloilo Water District v. National Labor Relations
Commission, et al.," the Third Division of this Court ruled in a minute resolution:
xxx xxx xxx
Considering that PD 198 is a general legislation empowering and/or authorizing government
agencies and entities to create water districts, said PD 198 cannot be considered as the charter itself
creating the Water District. Public respondent NLRC did not commit any grave abuse of discretion in
holding that the operative act, that created the Metro Iloilo Water District was the resolution of the
Sangguniang Panglunsod of Iloilo City. Hence, the employees of Water Districts are not covered by
Civil Service Laws as the latter do (sic) not have original charters.
In adherence to the just cited ruling, the CSC suspended the implementation of Resolution No. 90-575 by
issuing Resolution No. 90-770 which reads:
xxx xxx xxx
NOW, THEREFORE, in view of all the foregoing, the Commission resolved to rule, as it hereby rules,
that the implementation of CSC. Resolution No. 575 dated June 27, 1990 be deferred in the
meantime pending clarification from the Supreme Court are regards its conflicting decisions in the
cases of Tanjay Water District v. Gabaton and Metro Iloilo Water District v. National Labor Relations
Commission. (p. 26, Rollo)
In the meanwhile, there exists a divergence of opinions between COA on one hand, and the (LWUA), on the
other hand, with respect to the authority of COA to audit the different water districts.
COA opined that the audit of the water districts is simply an act of discharging the visitorial power vested in
them by law (letter of COA to LWUA dated August 13, 1985, pp. 29-30, Rollo).
On the other hand, LWUA maintained that only those water districts with subsidies from the government fall
within the COA's jurisdiction and only to the extent of the amount of such subsidies, pursuant to the provision of
the Government Auditing Code of the Phils.
It is to be observed that just like the question of whether the employees of the water districts falls under the
coverage of the Civil Service Law, the conflict between the water districts and the COA is also dependent on the
final determination of whether or not water districts are government-owned or controlled corporations with
original charter. The reason behind this is Sec. 2(1), Article IX-D of the 1987 constitution which reads:
12
 Sec. 2(1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and
settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to the Government, or any of its subdivisions,
agencies or instrumentalities, including government-owned or controlled corporations with original
charters, and on a post audit basis. (emphasis supplied)
Petitioners' main argument is that they are private corporations without original charter, hence they are outside
the jurisdiction of respondents CSC and COA. Reliance is made on the Metro Iloilo case which declared
petitioners as quasi-public corporations created by virtue of PD 198, a general legislation which cannot be
considered as the charter itself creating the water districts. Holding on to this ruling, petitioners contend that
they are private corporations which are only regarded as quasi-public or semi-public because they serve public
interest and convenience and that since PD 198 is a general legislation, the operative act which created a water
district is not the said decree but the resolution of the sanggunian concerned.
After a fair consideration of the parties' arguments coupled with a careful study of the applicable laws as well as
the constitutional provisions involved, We rule against the petitioners and reiterate Our ruling in Tanjay case
declaring water districts government-owned or controlled corporations with original charter.
As early as Baguio Water District v. Trajano, et al., (G.R. No. 65428, February 20, 1984, 127 SCRA 730), We
already ruled that a water district is a corporation created pursuant to a special law P.D. No. 198, as
amended, and as such its officers and employees are covered by the Civil Service Law.
In another case (Hagonoy Water District v. NLRC, G.R. No. 81490, August 31, 1988, 165 SCRA 272), We ruled
once again that local water districts are quasi-public corporations whose employees belong to the Civil Service.
The Court's pronoucement in this case, as extensively quoted in the Tanjay case, supra, partly reads:
"The only question here is whether or not local water districts are governmkent owned or controlled
corporations whose employees are subject to the provisions of the Civil Service Law. The Labor
Arbiter asserted jurisdiction over the alleged illegal dismissal of private respondent Villanueva by
relying on Section 25 of Presidential decree No. 198, known as the Provincial Water Utilities Act of
1973" which went onto effect in 25 May 1973, and which provides as follows:
Exemption from Civil Service. The district and its employees, being engaged in a
proprietary function, are hereby exempt from the provisions of the Civil Service Law.
Collective Bargaining shall be available only to personnel below supervisory
levels: Provided, however, That the total of all salaries, wages emoluments, benefits or
other compensation paid to all employees in any month shall not exceed fifty percent
(50%) of average net monthy revenue. Said net revenue representing income from
water sales and sewerage service charges, less pro-rata share of debt service and
expenses for fuel or energy for pumping during the preceding fiscal year.
The Labor Arbiter failed to take into accout the provisions of Presidential Decree No. 1479, which
went into effect on 11 June 1978, P.D. No. 1479, wiped away Section 25 of PD 198 quoted above,
and Section 26 of PD 198 was renumbered as Section 25 in the following manner:
Section 26 of the same decree PD 198 is hereby amended to read as Section 25 as follows:
Section 25. Authorization. The district may exercise all the powers which are expressly granted by
this Title or which are necessarily implied from or incidental to the powers and purposes herein
stated. For the purpose of carrying out the objectives of this Act, a district is hereby granted the
power of eminent domain, the exercise thereof shall, however, be subject to review by the
Administration.
Thus, Section 25 of PD 198 exempting the employees of water districts from the application of the
Civil Service Law was removed from the statute books:
xxx xxx xxx
We grant the petition for the following reasons:
1. Section 25 of PD No. 198 was repealed by Section 3 of PD No. 1479; Section 26 of PD No. 198
was amended ro read as Sec. 25 by Sec. 4 of PD No. 1479. The amendatory decree took effect on
June 11, 1978.
xxx xxx xxx
3. The BWD is a corporation created pursuant to a special law PD No. 198, as amended. As such
its officers and employees are part of the Civil Service (Sec. 1, Art. XII-B, [1973] Constitution; PD
No. 868).
Ascertained from a consideration of the whole statute, PD 198 is a special law applicable only to the different
water districts created pursuant thereto. In all its essential terms, it is obvious that it pertains to a special
purpose which is intended to meet a particular set of conditions and cirmcumstances. The fact that said decree
generally applies to all water districts throughout the country does not change the fact that PD 198 is a special
law. Accordingly, this Court's resolution in Metro Iloilo case declaring PD 198 as a general legislation is hereby
abandoned.
By "government-owned or controlled corporation with original charter," We mean government owned or
controlled corporation created by a special law and not under the Corporation Code of the Philippines. Thus, in
the case of Lumanta v. NLRC (G.R. No. 82819, February 8, 1989, 170 SCRA 79, 82), We held:
The Court, in National Service Corporation (NASECO) v. National Labor Relations Commission, G.R.
No 69870, promulgated on 29 November 1988, quoting extensively from the deliberations of 1986
Constitutional Commission in respect of the intent and meaning of the new phrase "with original
character," in effect held that government-owned and controlled corporations with original charter
refer to corporations chartered by special law as distinguished from corporations organized under
our general incorporation statute the Corporations Code. In NASECO, the company involved had
been organized under the general incorporation statute and was a sbusidiary of the National
Investment Development Corporation (NIDC) which in turn was a subsidiary of the Philippine
National Bank, a bank chartered by a special statute. Thus, government-owned or controlled
corporations like NASECO are effectively, excluded from the scope of the Civil Service. (emphasis
supplied)
From the foregoing pronouncement, it is clear that what has been excluded from the coverage of the CSC are
those corporations created pursuant to the Corporation Code. Significantly, petitioners are not created under the
said code, but on the contrary, they were created pursuant to a special law and are governed primarily by its
provision.
No consideration may thus be given to petitioners' contention that the operative act which created the water
districts are the resolutions of the respective local sanggunians and that consequently, PD 198, as amended,
cannot be considered as their charter.
It is to be noted that PD 198, as amended is the source of authorization and power to form and maintain a
district. Section 6 of said decree provides:
Sec. 6. Formation of District. This Act is the source of authorization and power to form and
maintain a district. Once formed, a district is subject to the provisions of this Act and not under the
jurisdiction of any political subdivision, . . . .
Moreover, it must be observed that PD 198, contains all the essential terms necessary to constitute a charter
creating a juridical person. For example, Section 6(a) provides for the name that will be used by a water district,
thus:
Sec. 6. . . . To form a district, the legislative body of any city, municipality or province shall enact a
resolution containing the following:
a) The name of the local water district, which shall include the name of the city, municipality, or
province, or region thereof, served by said system, followed by the words "Water District."
It also prescribes for the numbers and qualifications of the members of the Board of Directors:
13
 Sec. 8. Number and Qualification. The Board of Directors of a district shall be composed of five
citizens of the Philippines who are of voting age and residents within the district. One member shall
be a representative of civic-oriented service clubs, one member of representative of professional
associations, one member a representative of business, commercial or financial organizations, one
member a representative of educational institutions and one member a representative of women's
organization. No public official shall serve as director. Provided, however, that if the district has
availed of the financial assistance of the Administration, the Administration may appoint any of its
personnel to sit in the board of directors with all the rights and privileges appertaining to a regular
member for such period as the indebtedness remains unpaid in which case the board shall be
composed of six members; (as amended by PDs Nos. 768 and 1479).
the manner of their appointment and nominations;
Sec. 9. Appointment. Board members shall be appointed by the appointing authority. Said
appointments shall be made from a list of nominees, if any, submitted pursuant to Section 10. If no
nominations are submitted, the appointing authority shall appoint any qualified person of the
category to the vacant position;
Sec.10. Nominations. On or before October 1 of each even numbered year, the secretary of the
district shall contact each known organization, association, or institution being represented by the
director whose term will expire on December 31 and solicit nominations from these organizations to
fill the position for the ensuing term. One nomination may be submitted in writing by each such
organization to the Secretary of the district on or before November 1 of such year: This list of
nominees shall be transmitted by the Secretary of the district to the office of the appointing
authority on or before November 15 of such year and he shall make his appointment from the list
submitted on or before December 15. In the event the appointing authority fails to make his
appointments on or before December 15, selection shall be made from said list of nominees by
majority vote of the seated directors of the district constituting a quorum. Initial nominations for all
five seats of the board shall be solicited by the legislative body or bodies at the time of adoption of
the resolution forming the district. Thirty days thereafter, a list of nominees shall be submitted to
the provincial governor in the event the resolution forming the district is by a provincial board, or
the mayor of the city or municipality in the event the resolution forming the adoption of the district
is by the city or municipal board of councilors, who shall select the initial directors therefrom within
15 days after receipt of such nominations;
their terms of office:
Sec. 11. Term of Office. Of the five initial directors of each newly formed district, two shall be
appointed for a maximum term of two years, two for a maximum term of four years, and one for a
maximum term of six years. Terms of office of all directors in a given district shall be such that the
term of at least one director, but not more then two, shall expire on December 31 of each even-
numbered year. Regular terms of office after the initial terms shall be for six years commencing on
January 1 of odd-numbered years. Directors may be removed for cause only, subject to review and
approval of the Administration; (as amended by PD 768).
the manner of filling up vacancies:
Sec. 12. Vacancies. In the event of a vacancy in the board of directors occurring more than six
months before expiration of any director's term, the remaining directors shall within 30 days, serve
notice to or request the secretary of the district for nominations and within 30 days, thereafter a list
of nominees shall be submitted to the appointing authority for his appointment of a replacement
director from the list of nominees. In the absence of such nominations, the appointing authority
shall make such appointment. If within 30 days after submission to him of a list of nominees the
appointing authority fails to make an appointment, the vacancy shall be filled from such list by a
majority vote of the remaining members of the Board of Directors constituting a quorum. Vacancies
occurring within the last six months of an unexpired term shall also be filled by the Board in the
above manner. The director thus appointed shall serve the unexpired term only; (as amended by PD
768).
and the compensation and personal liability of the members of the Board of Directors:
Sec. 13. Compensation. Each director shall receive a per diem, to be determined by the board, for
each meeting of the board actually attended by him, but no director shag receive per diems in any
given month in excess of the equivalent of the total per diems of four meetings in any given month.
No director shall receive other compensation for services to the district.
Any per diem in excess of P50.00 shall be subject to approval of the Administration (as amended by
PD 768).
Sec. 14. Personal Liability. No director may be held to be personally liable for any action of the
district.
Noteworthy, the above quoted provisions of PD 198, as amended, are similar to those which are actually
contained in other corporate charters. The conclusion is inescapable that the said decree is in truth and in fact
the charter of the different water districts for it clearly defines the latter's primary purpose and its basic
organizational set-up. In other words, PD 198, as amended, is the very law which gives a water district juridical
personality. While it is true that a resolution of a local sanggunian is still necessary for the final creation of a
district, this Court is of the opinion that said resolution cannot be considered as its charter, the same being
intended only to implement the provisions of said decree. In passing a resolution forming a water district, the
local sanggunian is entrusted with no authority or discretion to grant a charter for the creation of a private
corporation. It is merely given the authority for the formation of a water district, on a local option basis, to be
exercised under and in pursuance of PD 198.
More than the aforequoted provisions, what is of important interest in the case at bar is Section 3, par. (b) of
the same decree which reads:
Sec. 3(b). Appointing authority. The person empowered to appoint the members of the Board of
Directors of a local water district, depending upon the geographic coverage and population make-up
of the particular district. In the event that more than seventy-five percent of the total active water
service connections of a local water districts are within the boundary of any city or municipality, the
appointing authority shall be the mayor of that city or municipality, as the case may be; otherwise,
the appointing authority shall be the governor of the province within which the district is
located: Provided, That if the existing waterworks system in the city or municipality established as a
water district under this Decree is operated and managed by the province, initial appointment shall
be extended by the governor of the province. Subsequent appointments shall be as specified herein.
If portions of more than one province are included within the boundary of the district, and the
appointing authority is to be the governors then the power to appoint shall rotate between the
governors involved with the initial appointments made by the governor in whose province the
greatest number of service connections exists (as amended by PD 768).
The above-quoted section definitely sets to naught petitioners' contention that they are private corporations. It
is clear therefrom that the power to appoint the members who will comprise the Board of Directors belongs to
the local executives of the local subdivision units where such districts are located. In contrast, the members of
the Board of Directors or trustees of a private corporation are elected from among the members and
stockholders thereof. It would not be amiss to emphasize at this point that a private corporation is created for
the private purpose, benefit, aim and end of its members or stockholders. Necessarily, said members or
stockholders should be given a free hand to choose those who will compose the governing body of their
corporation. But this is not the case here and this clearly indicates that petitioners are definitely not private
corporations.
The foregoing disquisition notwithstanding, We are, however, not unaware of the serious repercussion this may
bring to the thousands of water districts' employees throughout the country who stand to be affected because
they do not have the necessary civil service eligibilities. As these employees are equally protected by the
constitutional guarantee to security of tenure, We find it necessary to rule for the protection of such right which
cannot be impaired by a subsequent ruling of this Court. Thus, those employees who have already acquired their
permanent employment status at the time of the promulgation of this decision cannot be removed by the mere
reason that they lack the necessary civil service eligibilities.
ACCORDINGLY, the petition is hereby DISMISSED. Petitioners are declared "government-owned or controlled
corporations with original charter" which fall under the jurisdiction of the public respondents CSC and COA.
SO ORDERED.
14
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13403 March 23, 1960
RAMON E. SAURA, plaintiff-appellant,
vs.
ESTELA P. SINDICO, defendant-appellee.
Anacleto Magno for appellant.
Espeque and Jalandoni for appellee.
REYES, J. B. L., J.:
Appeal on issues of law from an order of the Court of First Instance of Pangasinan dismissing plaintiff's
complaint for damages.
From the records it appears that Ramon E. Saura and Estela P. Sindico were contesting for nomination as the
official candidate of the Nacionalista Party in the fourth district of Pangasinan in the congressional elections of
November 12, 1957. On August 23, 1957, the parties entered into a written agreement bearing the same date,
containing among other matters stated therein, a pledge that
Each aspirant shall respect the result of the aforesaid convention, i.e., no one of us shall either run
as a rebel or independent candidate after losing in said convention.
In the provincial convention held by the Nacionalista Party on August 31, 1957, Saura was elected and
proclaimed the Party's official congressional candidate for the aforesaid district of Pangasinan. Nonetheless,
Sindico, in disregard of the covenant, filed, on September 6, 1957, her certificate of candidacy for the same
office with the Commission on Elections, and she openly and actively campaigned for her election. Wherefore, on
October 5, 1957, plaintiff Saura commenced this suit for the recovery of damages. Upon motion of the
defendant, the lower court, in its order of November 19, 1957, dismissed the complaint on the basis that the
agreement sued upon is null and void, in tat (1) the subject matter of the contract, being a public office, is not
within the commerce of man; and (2) the "pledge" was in curtailment of the free exercise of elective franchise
and therefore against public policy. Hence, this appeal.
We agree with the lower court in adjudging the contract or agreement in question a nullity. Among those that
may not be the subject matter (object) of contracts are certain rights of individuals, which the law and public
policy have deemed wise to exclude from the commerce of man. Among them are the political rights conferred
upon citizens, including, but not limited to, once's right to vote, the right to present one's candidacy to the
people and to be voted to public office, provided, however, that all the qualifications prescribed by law obtain.
Such rights may not, therefore, be bargained away curtailed with impunity, for they are conferred not for
individual or private benefit or advantage but for the public good and interest.
Constitutional and statutory provision fix the qualifications of persons who may be eligible for certain elective
public offices. Said requirements may neither be enlarged nor reduced by mere agreements between private
parties. A voter possessing all the qualifications required to fill an office may, by himself or through a political
party or group, present his candidacy without further limitations than those provided by law.
Every voter has a right to be a candidate for public office if he possesses the qualifications required
to fill the office. It does not necessarily follow that he can be the candidate of a particular political
party. The statute provides when and how one may be a candidate of a political party. If he cannot
fill the requirement so as to be the candidates of the political party of his choice, he may still be a
candidate at the general election by petition. The right of the voter to vote at the general election for
whom he pleases cannot be limited. (Roberts vs. Cleveland, Secretary of State of State of New
Mexico, 48 NM 226, 149 P (2d) 120, 153 A.L.R. 635, 637-638) (Emphasis supplied)
In common law, certain agreements in consideration of the withdrawal of candidates for office have invariably
been condemned by the courts as being against public policy, be it a withdrawal from the race for nomination
or, after nomination, from the race for election. (See notes in 37 L. R. A. (N.S.) 289 and cases cited therein; 18
Am. Jur. Sec. 352, pp. 399-400)
In the case at hand, plaintiff complains on account of defendant's alleged violation of the "pledge" in question by
filing her own certificate o candidacy for a seat in the Congress of the Philippines and in openly and actively
campaigning for her election. In the face of the preceding considerations, we certainly cannot entertain plaintiff's
action, which would result in limiting the choice of the electors to only those persons selected by a small group
or by party boses.
The case of Pendleton vs. Pace, 9 S.W. (2nd) 437, cited by the appellant, is clearly inapplicable. The court there
only sanctioned the validity of an agreement by the opposing candidates for nomination setting aside and re-
submitting the nomination for another primary election on account of the protest or contest filed by the losing
candidate in the first primary election. To abandon the contest proceedings, the candidates for nomination
agreed to submit again their nomination to the electors in the subsequent primary.
Appellant likewise cites and quotes a portion of our ruling in Monsale vs. Nico, 83 Phil., 758; 46 Off. Gaz., 210,
to the effect that it is not incompetent or a candidate to withdraw or annul his certificate of candidacy. This is
not in point, for while we stated there that he may do so, there being no legal prohibition against such a
voluntary withdrawal, it does not follow, nor did we imply anywhere in the decision, that in case there is any
agreement or consideration for such a withdrawal, said agreement or consideration should be held valid or given
effect.
We find it unnecessary to discuss the other points raised by the parties.
Wherefore, the order of dismissal appealed from is hereby affirmed. No pronouncement as to costs.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera and Gutierrez
David, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21624 February 27, 1968
SEGUNDO SANTOS, petitioner,
vs.
SECRETARY OF LABOR, RAOUL M. INOCENTES, Commissioner of Civil Service, RICARDO TIONGCO
and CASHIER, Regional Office No. 4, respondents.
Castro M. Baltazar for petitioner.
Office of the Solicitor General for respondents.
SANCHEZ, J.:
Segundo Santos was, for a number of years, employed as Labor Conciliator I (Regional Office No. 4) of
the Department of Labor. His monthly pay was P259 per month, or P3,108 per annum. On August 24, 1960, he
was extended an appointment (promotion) as Labor Conciliator II (Regional Office No. 3, Manila) with
compensation per annum of P3,493, vice Juan Mendoza, Jr., resigned. This appointment, effective September 1,
1960, was approved by the Commissioner of Civil Service on May 14, 1962, and released to the Department of
Labor on May 25, 1962.
In June of 1962, respondent Secretary of Labor appointed Ricardo Tiongco, one of the respondents, to
the same position of Labor Conciliator II. 1
Petitioner's demand for the revocation of respondent Tionco's appointment and payment to him (Santos)
of salary differentials was rejected by respondent Secretary of Labor.
From the foregoing events stemmed the present petition for mandamus filed on August 20, 1962 three
days before Santos actually retired from the service which was an August 23, 1962. 2 The petition prays, inter
alia, that respondents be commanded to nullify the appointment of Tiongco, and to uphold as legal and existing
petitioner's appointment, as Labor Conciliator II, from September 1, 1960; and that the salary differentials
aforesaid be paid petitioner. Respondents seasonably answered the petition.
Before the case could be tried on the merits that is, on February 14, 1963, Santos died. A motion to
substitute the "Estate of Segundo Santos, deceased." represented by Rodolfo Santos, one of the heirs, was filed.
This triggered a move on respondents' part to seek dismissal of the case.
15
 The court, on April 10, 1963, dismissed the petition without costs. Hence, this appeal on purely questions
of law.
1. The threshold question is this: May the Estate of Segundo Santos, deceased, be substituted in place of
petitioner herein?
Public office is a public trust. 3 It is personal to the incumbent thereof or appointee thereto. In this sense,
it is not property which passes to his heirs. None of the heirs may replace him in that position. It is in this
context that we say that the Estate of the deceased Segundo Santos may not press Santos' claim that he be
allowed to continue holding office as Labor Conciliator II. Actio personalis moritur cum persona.
But jurisdiction of the court had attached before the death of Santos. That jurisdiction continues until the
termination of the suit. It is true that what is left is a money claim for salary differentials. But death will not
dislodge jurisdiction on that money claim it subsists. Resolution of this question depends upon the right of
Segundo Santos to the position of Labor Conciliator II.
We rule that the Estate of the deceased Segundo Santos may be substituted for him in the present
proceedings. We do so now.1wph1.t
2. We go to the merits.
Stripped of unnecessary details, the facts are: On August 24, 1960, petitioner, a second grade eligible,
was appointed Labor Conciliator II at an annual compensation of P3,493 effective September 1, 1960. As far as
salary is concerned, no law, rule or regulation has been violated. Because, an annual pay of P3,493 is well
within the range provided for second grade civil service eligibles. 4
Respondents challenge the legality of petitioner's appointment as Labor Conciliator II. They say that such
appointment is within the prohibition set forth in the memorandum circular of the Civil Service Commission
dated February 16, 1961, thus: "Employees should not be assigned or promoted to positions the initial rate of
the salary allocation of which exceed the maximum allowable for their eligibility." Respondents likewise aver that
it was because of this circular, that the appointment of petitioner as Labor Conciliator II was recalled on
September 7, 1961. The circular was not violated.
And the withdrawal of petitioner's appointment is not a proven fact. What the record clearly discloses is
that the original appointment of petitioner as Labor Conciliator II was not taken out of the Civil Service
Commission; it was approved by the Commissioner of Civil Service on May 14, 1962 and released to the
Secretary of Labor on May 25, 1962.
More important now is that the defense of recall has been abandoned by respondents. The case was
ready for trial below. They did not go to trial. Instead, they thought it advantageous to them upon petitioner's
death to submit their case on their motion to dismissed solely on legal grounds, namely, that the death of
petitioner extinguished the controversy, and that the remaining claim for damages is ancillary to mandamus and
is also abated by death.
The money claim here involved, however, descended to Santos' heirs. And, as we have earlier in this
opinion stated, his Estate may prosecute that claim to its conclusion.
It will not be in harmony with our sense of justice to return this case to the court below at this stage
just to allow respondents to prove their defense of recall of petitioner's appointment.
Respondents had a choice: To go to trial on the merits upon the issues raised in their answer; or, seek to
overthrow petitioner's case on legal issues. They did elect the latter. They cannot be permitted once again to
return to the lower court for a trial on the merits. 5 Suitors should not normally be allowed to gamble with court
proceedings in the hope of obtaining beneficial results. It is unfair that this case should, on respondents' choice,
be made to bounce from the lower court to this Court, and back to the lower court and perhaps only to be
appealed once again to an appellate court. The ensuing delay, increased cost of litigation, and trouble and
anxiety and harassment to be caused to the adverse party, the wastage of the courts' time these are reasons
potent enough to support this view.
At all events, petitioner's right to salary differentials and the duty to pay him are both clear. Civil Service
approval completed petitioner's appointment, 6 clinched the case for him.
3. The rest is a question of mathematical computation. Petitioner's pay as Labor Conciliator I was at the
rate of P259 per month or P3,108 per annum. His increased compensation as Labor Conciliator II from
September 1, 1960, to August 23, 1962, the date of his retirement, is at the late of P3,493 per annum, specified
in his promotional appointment, and reiterated in the 5th indorsement of the Commissioner of Civil Service to
the Secretary of Labor dated May 22, 1962. He is entitled only to the pay set forth in his appointment, and no
more absent a legal adjustment thereof. There is no such adjustment here. Petitioner's salary differentials
during the period covered amounts to P761.68. And this should be paid to his Estate.
Upon the view we take of this case, we vote to reverse the order of the Court of First Instance of Manila
dated April 10, 1963, and to direct the Secretary of Labor and the corresponding Cashier to pay the Estate of
the deceased petitioner Segundo Santos the sum of P761.68.
No costs. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-30057 January 31, 1984
BRUNO O. APARRI, petitioner,
vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS O. FORTICH,
as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as
members of the Board of Directors of the defunct National Resettlement and Rehabilitation
Administration (NARRA), respondents.
Enrique D. Tayag for petitioner.
Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.
MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate Appellate
Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First Instance (now
Regional Trial Court), the dispositive portion of which is as follows:
WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the
present petition for mandamus is hereby affirmed, without pronouncement as to costs
(p. 50, rec.).
The facts of the case are as follows:
On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National
Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954
NARRA) approved the following resolution:
RESOLUTION NO. 13 (Series of 1960)
RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager
of the National Resettlement and Rehabilitation Administration (NARRA) with all the
rights, prerogatives and compensation appurtenant thereto to take effect on January 16,
1960);
RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines
of the above appointment of Mr. Aparri (p. 2, rec.).
Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board,
appointed petitioner Bruno O. Aparri as reflected in the following letter:
16

Mr. Bruno O. Aparri c/o NARRA, Manila
SIR:
You are hereby appointed as GENERAL MANAGER in the National Resettlement and
Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE
THOUSAND (P12,000.00) PESOS per annum the appointment to take effect January
16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).
The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph
(2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit:
Sec. 8. Powers and Duties of the Board of Directors. The Board of Directors shall have
the following powers and duties: ...
2) To appoint and fix the term of office of General Manager ..., subject to the
recommendation of the Office of Economic Coordination and the approval of the
President of the Philippines, .... The Board, by a majority vote of all members, may, for
cause, upon recommendation of the Office of Economic Coordination and with the
approval of the President of the Philippines, suspend and/or remove the General
Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied).
On March 15, 1962, the same Board of Directors approved the following resolution:
RESOLUTION NO. 24 (Series of 1962)
WHEREAS, the Chairman of the Board has transmitted to the Board of Directors
the desire of the Office of the President Malacanang, Manila, to fix the term of office of
the incumbent General Manager up to the close of office hours on March 31, 1962, in
accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160;
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of
Directors hereby fix, as it is hereby fixed, the term of office of the incumbent General
Manager of the National Resettlement and Rehabilitation Administration (NARRA) to
March 31, 1962 (pp. 6-7, rec., emphasis supplied).
Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First Instance of
Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA Board dated March 15,
1962, to command the Board to allow petitioner to continue in office as General Manager until he vacates said
office in accordance
n with law and to sentence the private respondents jointly and severally to pay the petitioner
actual damages ini the sum of P95,000.00, plus costs.
l
a
On August 8, 1963, , when the case was still pending decision in the lower court, Republic Act No. 3844,
otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the NARRA (Sec. 73,
R.A. 3844) and transferred
J its functions and powers to the Land Authority. On October 21, 1963, the then Court
of First Instance ofa Manila rendered judgment, finding "that this case has become academic by reason of the
approval of the Agricultural
n Land Reform Code (Republic Act No. 3844) and thereby dismissing the instant
petition without pronouncement
u as to costs" (p. 5, rec.).
a
r
On appeal to the then
y Court of Appeals, the appellate tribunal speaking through then Mr. Justice Antonio C.
Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus. Pertinent provisions of
the decision are as2 follows:
2
,
xxx xxx xxx
1
9
6 In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position
0 of General Manager without fixed term and his appointment is, in essence, terminable at
the pleasure of the appointing power which, in this case, is the Board of Directors.
Where, as in the case at bar, the appointing officer, that is, the Board of Directors, had
fixed the term of office of the incumbent Manager to end on March 31, 1962, the
replacement of Bruno O. Aparri is not removal but by reason of the term of his office
which is one of the recognized modes of terminating official relations. Considering that
the term of office of the General Manager of the NARRA is not fixed by law nor has it
been fixed by the Board of Directors at the time of his appointment although it had the
power to do so, it is obvious that the term of office of herein petitioner Bruno O. Aparri
expired on March 31, 1962 and his right to hold the said office was thereby
extinguished. In other words, Bruno O. Aparri cessation from office invokes no removal
but merely the expiration of the term of office which was within the power of the Board
of Directors to fix. Hence, Bruno O. Aparri continues only for so long as the term of his
office has not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the
Court of Appeals, pp. 48-49, rec., emphasis supplied].
The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10, 1969.
On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then Court of
Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in a
resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on February 11, 1969,
the petition was given due course (p. 66, rec.).
The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962) was a
removal or dismissal of petitioner without cause.
WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962.
A public office is the right, authority, and duty created and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public
Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a
natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly
creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an
office, or even an absolute right to hold office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42
Am. Jur. 881).
The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic Act No. 1160
(approved June 18,1954), which provides that:
Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION ... there
is hereby created a corporation to be known as National Resettlement and Rehabilitation
Administration hereafter referred to as "NARRA" to perform under the supervision and
control of the President of the Philippines, through the Office of Economic Coordinator all
17
 the duties and functions of the Bureau of Lands as provided for in Commonwealth Act
numbered Six Hundred and Ninety-one, as amended, and such other duties as are
hereinafter specified in this Act. It shall be headed by a General Manager and an
Assistant Manager who shall be appointed as hereinafter provided (emphasis supplied).
Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA the power
"to appoint and fix the term of office of the general manager ... subject to the recommendation of Economic
Coordination and the approval of the President of the Philippines" (emphasis supplied).
By "appointment" is meant the act of designation by the executive officer, board or body, to whom that power
has been delegated, of the individual who is to exercise the functions of a given office (Mechem op. cit., Sec.
102). When the power of appointment is absolute, and the appointee has been determined upon, no further
consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at
once. Where, however, the assent or confirmationof some other officer or body is required, the Commission can
issue or the appointment is complete only when such assent or condition is obtained (People vs. Bissell, 49 Cal.
407). To constitute an "appointment" to office, there must be some open, unequivocal act of appointment on the
part of the appointing authority empowered to make it, and it may be said that an appointment to office is made
and is complete when the last act required of the appointing authority has been performed (Molnar vs. City of
Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment becomes complete when the last
act required of the appointing power is performed (State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65).
The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 approved on
January 15, 1960) of the Board of Directors. A careful perusal of the resolution points out the fact that the
appointment is by itself incomplete because of the lack of approval of the President of the Philippines to such
appointment. Thus, We note that Resolution No. 13 states:
xxx xxx xxx
... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the
Philippines of the above appointment of Mr. Aparri (p. 2, rec.).
Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the then
President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the
appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer
because he assumed office "under color of a known appointment or election, void because the officer was not
eligible or because there was a want of power in the electing body, or by reasons of some defect or irregularity
in its exercise, such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38
Conn. 449, 9Am. Rep. 409).
However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved
March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the
petitioner up to the close of office hours on March 31, 1962. The questioned resolution corrected whatever
requisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the
respondent Board and pursuant to "the desire of the President" legally fixed the term of office of petitioner as
mandated by paragraph 2, Section 8 of Republic Act 1160.
The word "term" in a legal sense means a fixed and definite period of time which the law describes that an
officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS,
secs. 42, 54[1]). According to Mochem, the term of office is the period during which an office may be held. Upon
the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and authority
as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public Officers, the
most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for
which he was elected or appointed. The question of when this event has occurred depends upon a number of
considerations, the most prominent of which, perhaps, are whether he was originally elected or appointed for a
definite term or for a termdependent upon some act or event ... (Mechem op. cit., Sec. 384).
It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the
statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865,
65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is
vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and the
approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an
expiration of the term of office of the petitioner. The statute is undeniably clear. It is the rule in statutory
construction that if the words and phrase of a statute are not obscure or ambiguous, its meaning and the
intention of the legislature must be determined from the language employed, and, where there is no ambiguity
in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not
speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep.
744). The reason for the rule is that the legislature must be presumed to know the meaning of words, to have
used words advisedly and to have expressed its intent by the use of such words as are found in the statute (50
Am. Jur. p. 212).
Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50 O.G.
2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to hold
the office ceased by the expiration on March 31, 1962 of his term to hold such office.
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 95275-76 July 23, 1991
SIXTO DE LA VICTORIA, petitioner,
vs.
COMMISSION ON ELECTIONS, HEIRS OF GENOVEVA S. MEDINA represented by FAUSTINO MESINA,
JR., JUAN ALAO and VICTOR S. MESINA, respondents.
Constante P. Pimentel, et al. for petitioner.
Regulo M. Bantasan for the Intervenor Aquilino Cantiga, Jr. Sixto, Brillantes, Jr. for Heirs of Genoveva S. Mesina.
Evergisto B. Escalon for respondents Juan Alao and Victor S. Mesina.
GRIO-AQUINO, J.:
This petition for certiorari with preliminary injunction and/or restraining order assails the order of the
Commission on Elections En Banc (COMELEC, for short) which allowed the substitution of the heirs of a deceased
candidate as protestee in the election protest filed by her rival for the office of municipal mayor of Albuera,
Leyte, in the local elections on February 1, 1988, and allowed the same heirs to appeal the decision of the
Regional Trial Court declaring her rival (the protestant and herein petitioner), as the actual winner in that
election.
The contenders for the mayorship of Albuera, Leyte in the special local elections held on February 1, 1988 were
petitioner Sixto De la Victoria who obtained 5,093 votes, the late Genoveva S. Mesina who obtained 5,103
votes, and Loly C. Fian who garnered 982 votes. On February 3, 1988, the Municipal Board of Canvassers
proclaimed Mesina as the duly elected municipal mayor of Albuera, Leyte. Elected and proclaimed vice-mayor
was her running-mate, Aquilino Cantiga, Jr.
In due time, the defeated mayoral candidate, De la Victoria, filed two pre-proclamation cases (SPC Nos. 88-560
and 88-614) in the COMELEC but even while they were still pending in the commission, he filed on October 21,
1988 in the Regional Trial Court (RTC), Branch 14 in Baybay, Leyte, an election protest Ex Abundante
Cautela against Mesina (docketed as Election Protest No. B-44) with claims for damages, attorney's fees, and
costs. Mesina filed an Answer with counterclaims for damages and attorney's fees.
On July 22, 1989, Mesina died and was substituted as protestee by her Vice-Mayor, Aquilino Cantiga, Jr., who
assumed the mayorship by operation of law. Neither Mesina's heirs (the private respondents herein), nor her
counsel informed the trial court about her death.
On May 16, 1990, De la Victoria withdrew from the COMELEC En Banc, his pre-proclamation complaints (SPC
Cases Nos. 88-560 and 88-614). The COMELEC granted his motion.
On June 18, 1990, the incumbent Mayor, Aquilino Cantiga, Jr., filed in the Regional Trial Court (RTC) a verified
"Petition to Intervene" in the election protest of De la Victoria.
On June 20, 1990, De la Victoria filed a "Manifestation/Motion" waiving his claim for damages and costs against
the deceased protestee, Mesina. The trial court granted the motion (p. 389, Rollo).
On June 22, 1990, counsel for Mesina filed a Notice of Death and Motion for Substitution of the deceased
protestee by her heirs, and requested that his motion be set for hearing on July 2, 1990.
18
De la Victoria opposed the motion for substitution on the ground that the heirs of Mesina are not the "real party
in interest" and that since he (De la Victoria) had waived his claim for damages against the deceased, her heirs
have no more right to intervene in the case or have been "erased from the picture altogether" (Lomugdang vs.
Javier, 21 SCRA 402 and Vda. de Mesa vs. Mencias, 18 SCRA 533).
On July 2, 1990, the trial court noted the Motion for Substitution filed by the heirs of Mesina and ruled that De la
Victoria's waiver of his claim for damages against the said protestee rendered the Motion for Substitution
without basis in law, or moot and academic.
On July 17, 1990, the trial court promulgated a decision in the Election Protest No. B-44, declaring the
protestant, De la Victoria, as the duly elected Mayor of Albuera, Leyte, by a margin of 134 votes over the
deceased protestee, Genoveva S. Mesina.
Two days later, on July 19, 1990, the heirs of Mesina appealed to the COMELEC by a petition for certiorari and
prohibition with preliminary injunction to restrain the trial court from rendering a decision in Election Protest No.
B-44 or conducting further proceedings therein.
On July 20, 1990, the heirs of Mesina filed in the trial court a Notice of Appeal. De la Victoria filed an "Urgent
Motion to Disregard Notice of Appeal" on the ground that the heirs had no standing in the case as they failed to
appeal the July 2, 1990 Order of the trial court denying their motion for substitution. The trial court in its Order
of July 23, 1990, denied the Notice of Appeal and ordered its expulsion from the record of the case. It held that
the intervenor, Vice-Mayor Cantiga, who succeeded the deceased protestee by operation of law, not the "heirs"
of the deceased, is the "real party in interest" in the continuation of the election protest after the demise of the
protestee. Moreover, upon the waiver by De la Victoria of his claim for damages against Mesina, the latter's
heirs had no more legal interest to defend in her behalf.
On July 24, 1990, De la Victoria filed a motion for execution of the trial court's decision. It was granted by the
court on July 25, 1990. Promptly, on the same day, De la Victoria was sworn into office as the duly elected
Mayor of Albuera.
As earlier mentioned, the heirs of Mesina appealed that decision to the COMELEC by a petition for certiorari and
prohibition with a prayer for the issuance of a writ of preliminary injunction (SPR No. 9-90). In his Comment on
the petition, De la Victoria adverted to the decision dated July 17, 1990 of the trial court which became final and
executory when no appeal was taken therefrom.
On the same date, the COMELEC denied the heirs' application for a temporary restraining order (TRO), but set
the case for hearing before the COMELEC En Banc for "preliminary determination of the sufficiency of the
allegations in the main issue raised by said respondents-heirs."
De la Victoria opposed the petition.
On August 6, 1990, the heirs filed in the COMELEC another petition for certiorari and mandamus (SPR No. 11-
90), praying that the execution of the decision of the trial court in Election Protest No. B-44 be stopped.
On August 8, 1990, De la Victoria assumed office as Mayor of Albuera, Leyte.
On August 13, 1990, the COMELEC issued a status quo Order directing De la Victoria to answer the petition in
SPR No. 11-90, and setting the petition for preliminary injunction for hearing on August 23, 1990.
On September 27, 1990, the COMELEC set aside the trial court's Order dated July 2, 1990 denying the motion
for substitution of the heirs of the deceased protestee, and the Order dated July 23, 1990 which denied due
course to the Notice of Appeal of the heirs from its decision dated July 17, 1990. It declared the writ of
execution null and void and ordered the elevation to it of the records of the case pursuant to Rule 22 of the
COMELEC Rules of Procedure (on appeal from election protest decided by trial courts of general jurisdiction).
De la Victoria has come to us for relief through this petition for certiorari with prayer for the issuance of a
temporary restraining order (TRO) where the main issues raised are: (1) whether the heirs of the deceased
protestee in an election protest may be considered as real party-in-interest even if the vice-mayor has been
allowed to intervene and the protestant had waived his claim for damages and costs in the proceedings; and (2)
whether said heirs may appeal the decision in the election protest (EPC No. B-44).
After careful deliberation, the Court is persuaded that the answer to both questions is no.
The late Genoveva Mesina's claim to the contested office was not in any sense a transmissible right that
devolved upon her surviving spouse and her children (herein private respondents) after her death. "Public office
is personal to the incumbent and is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22
SCRA 848). Private respondents' only interest in the outcome of the case is limited to no more than their
interest in defending her against the protestant's claim for damages and costs (which the protestant, herein
petitioner, has already waived). They may no longer prosecute her own counter-claim for damages against the
protestant for that was extinguished when death terminated her light to occupy the contested office of mayor of
Albuera, Leyte.
In the case of Vda. de Mesa vs. Mencias, 18 SCRA 533, 545, we ruled:
The same cannot, however, be said of the protestee's widow or of the local Liberal Party chapter of
Muntinlupa. The protestee's claim to the contested office is not in any sense a right transmitted to
his widow or heirs. Said widow's remaining interest in the outcome of the case is limited to no more
than the possible award of costs against the deceased protestee. Besides not being such an interest
as would justify her substitution for her deceased husband as an indispensable legal representative,
the right to such an award if eventually made has already been waived by protestant Argana. This
effectively withdraws the widow from the picture altogether. Much less has the local Liberal Party
Chapter any claim to substitution. Not being duly incorporated as a juridical person, it can have no
personality to sue or be sued as such. And while it conceivably may derive some indirect benefit
consequent to the resolution of the contest in favor of the deceased protestee, neither the chapter
itself nor the officers thereof would become entitled thereby to any right to the contested office in
case of a favorable judgment, nor, for that matter, do they stand to sustain any direct prejudice in
case of an adverse one. No basis therefore exist upon which to predicate their claim to substitution.
(Emphasis supplied).
This ruling was not a mere obiter as the COMELEC erroneously supposed.
Vice Mayor Aquilino Cantiga's accession, by operation of law, to the position of Municipal Mayor upon the death
of Mesina on July 22, 1989, automatically made him the real party-in-interest in the election contest for his right
to hold the office of municipal mayor is in jeopardy of being lost should De la Victoria win Ms protest. Thus did
this Court hold in Lomugdang vs. Javier, 21 SCRA 403:
The vice-mayor elect has the status of a real party-in-interest in the continuation of the proceedings
and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the
vice-mayor succeeds to the office of mayor that becomes vacant if the one duly elected cannot
assume the post.
This ruling was reiterated in Unda vs. COMELEC (G.R. No. 94090, October 19, 1990):
Now under the Local Government Code, the vice-mayor stands next in line of succession to the
mayor in case of a permanent vacancy in the latter's position. Upon the death of the protestee
mayor in the case at bar, petitioner, as then incumbent vice-mayor, succeeded by operation of law
to the vacated office and is ordinarily entitled to occupy the same for the unexpired term
thereof. The outcome of the election contest necessarily and primarily bears upon his right to his
present position and he is the person directly concerned in the fair and regular conduct of the
election in order that the true will of the electorate will be upheld. His status as a real party-in-
interest in the continuation of said case cannot thus be disputed. (Emphasis supplied.)
On the procedural aspects of the case, we find the following observations of the Solicitor General in his
Consolidated Comment dated January 8, 1991, to be well taken:
. . . respondent COMELEC acted with grave abuse of discretion in giving due course to the [private
respondents'] petitions for certiorari filed in SPR Nos. 9-90 and 11-90 filed on August 6, 1990 to set
aside the final and executory decision of the trial court promulgated on July 18, 1990, far beyond
the 5-day period allowed by [Section 22, Rule 35] Comelec Rules of Procedure, (p. 410, Rollo.)
Respondent COMELEC further gravely abused its discretion by issuing a "permanent" and final
injunction to prevent the execution of said final and executory Decision dated July 17, 1990 of the
19
 trial court, without the required bond contrary to its own Rule 30, Section 4, COMELEC Rules of
Procedure. (p. 411, Rollo.)
However, these issues have been rendered moot and academic by the COMELEC's order of January 23, 1991
dismissing the "reinstated" appeal of the private respondents (p. 447, Rollo), for failure to file their Appellant's
Brief on December 9, 1990, the last day for filing the same, their Motion for Extension of Time to File said
Appellant's Brief having been previously denied by the COMELEC for being a prohibited pleading under Section
1(c) of Rule 13 of the COMELEC Rules of Procedure, in relation to Section 9(b) Rule 22 of the COMELEC Rules of
Procedure, The COMELEC's dismissal order reads:
Consequently, the dismissal of the herein appeal case pursuant to the Comelec Rules of Procedure
renders the decision of the Regional Trial Court of Leyte, Branch XIV dated July 17, 1990, as FINAL
AND EXECUTORY. (pp. 459-460, Rollo.)
On January 28, 1991, petitioner De la Victoria reassumed the office of Mayor of Albuera, Leyte (p. 460, Rollo).
WHEREFORE, finding merit in the petition for certiorari, the same is hereby GRANTED, with costs against private
respondents.1wphi1 The proclamation of Sixto de la Victoria as mayor of Albuera, Leyte, is upheld.
SO ORDERED.
EN BANC
[G.R. No. 124374. December 15, 1999]
ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL
SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO
MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO,
DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR
FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents.
[G.R. No. 126354. December 15, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY,
JR., respondents.
[G.R. No. 126366. December 15, 1999]
ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL
SERVICE COMMISSION and SANDY C. MARQUEZ, respondents.
DECISION
YNARES-SANTIAGO, J.:
Before this Court are three consolidated petitions[1] filed under Rule 45 of the Revised Rules of Court.
The facts behind the consolidated petitions are undisputed.
During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents [2] to
positions in the Civil Service Unit (CSU) of the local government of Quezon City.Civil Service Units were created
pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972.
On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree
No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs.
Tuvera the presidential decree is deemed never in force or effect and therefore cannot at present, be a basis
[3]
for establishment of the CSUs . . . .[4]
On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil
Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said
Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the
same never became law. Among those affected by the revocation of appointments are private respondents in
these three petitions.
For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment
of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety
(DPOS).
At the heart of these petitions is Section 3 of the Ordinance which provides:
Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and
Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbedinto the department
of public order and safety established under Section one hereof to be given appropriate position titles without
reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed
offices shall be used as the initial budgetary allocation of the Department. (Underscoring ours).
Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due
to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created.
Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments
for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the
period of January 1, 1992 to June 30, 1992.
On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992,
Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31,
1992. Upon their expiry, these appointments, however, were no longer renewed.
The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents appointments
became the seed of discontent from which these three consolidated petitions grew.
We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.
G.R. No. 124374 and G.R. No. 126366
After the non-renewal of their appointments, private respondents in these two petitions appealed to the
Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private
respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No.
NC-140, Series of 1990,[5] and ordering their reinstatement to their former positions in the DPOS. [6] Petitioner
brought petitions for certiorari to this Court,[7] to annul the resolutions but, in accordance with Revised
Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of
Appeals dismissed the petitions for certiorari.
In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that
respondent Civil Service Commission has the authority to direct him to reinstate private respondents in the
DPOS.
We agree with petitioner.
The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of
1992 which became effective only on January 1, 1992, when the material events in this case transpired.
Applying the said law, we find that the Civil Service Commission erred when it applied the directives of
Ordinance NC-140 and in so doing ordered petitioner to reinstate private respondents to positions in the
DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of
the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The
Ordinance refers to personnel and not to positions.Hence, the city council or sanggunian, through the Ordinance,
is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of
B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be
usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for
the absorption of specific persons to certain positions.
In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU
into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of
Appeals makes the sweeping statement that the doctrine of separation of powers is not applicable to local
governments.[8] We are unable to agree. The powers of the city council and the city mayor are expressly
enumerated separately and delineated by B.P. 337.
The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief
executive.[9] The power of the city council or sanggunian, on the other hand, is limited
to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council
has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of
the sanggunian. The power to appoint is not one of them. Expressio unius est exclusio alterius.[10] Had Congress
intended to grant the power to appoint to both the city council and the local chief executive, it would have said
so in no uncertain terms.
By ordering petitioner to reinstate private respondents pursuant to Section 3 of the Ordinance, the Civil
Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a
long line of cases,[11] we have consistently ruled that the Civil Service Commissions power is limited to
approving or disapproving an appointment. It does not have the authority to direct that an appointment of a
specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a
vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission
cannot encroach upon the discretion vested in the appointing authority.
20
 The Civil Service Commission argues that it is not substituting its judgment for that of the appointing
power and that it is merely implementing Section 3 of Ordinance NC-140.
The Ordinance refers to the personnel of the CSU, the identities of which could not be mistaken. The
resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being
no issue as to who are to sit in the newly created DPOS, there is therefore no room left for the exercise of
discretion. In Farinas vs. Barba,[12] we held that the appointing authority is not bound to appoint anyone
recommended by the sanggunian concerned, since the power of appointment is a discretionary power.
When the Civil Service Commission ordered the reinstatement of private respondents, it technically
issued a new appointment.[13] This task, i.e. of appointment, is essentially discretionary and cannot be controlled
even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority.
In Apurillo vs. Civil Service Commission, we held that appointment is essentially a discretionary power
and must be performed by the officer in which it is vested.[14]
The above premises considered, we rule that the Civil Service Commission has no power to order
petitioner Ismael A. Mathay, Jr. to reinstate private respondents.
Petitioner similarly assails as error the Court of Appeals ruling that private respondents should be
automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance.
In its decision of March 21, 1996 the Court of Appeals held:
It is clear however, that Ordinance No. NC-140, absorbing the present personnel of the Civil Security Agent Unit
in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of
de jure appointments as permanent regular employees at the time, and therefore, by operation of said
Ordinance private respondents were automatically absorbed in the DPOS effectively as of March 27,
1990.[15] (Underscoring ours.)
The decision is based on the wrong premise.
Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not
possible. Since the CSU never legally came into existence, the private respondents never held permanent
positions. Accordingly, as petitioner correctly points out,[16] the private respondents appointments in the defunct
CSU - - -
were invalid ab initio. Their seniority rights and permanent status did not arise since they have no valid
appointment. For them to enter the Civil Service after the revocation and cancellation of their invalid
appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil
Service Commission.
Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically
absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Underscoring ours)
It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a
law expressly or impliedly creating and conferring it.[17] Since Presidential Decree 51 creating the CSU never
became law, it could not be a source of rights. Neither could it impose duties. It could not afford any
protection. It did not create an office. It is as inoperative as though it was never passed.
In Debulgado vs. Civil Service Commission[18] we held that a void appointment cannot give rise to
security of tenure on the part of the holder of the appointment.
While the Court of Appeals was correct when it stated that the abolition of an office does not mean the
invalidity of appointments thereto,[19] this cannot apply to the case at bar. In this case, the CSU was not
abolished. It simply did not come into existence as the Presidential Decree creating it never became law.
At the most, private respondents held temporary and contractual appointments. The non-renewal of
these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service
Commission[20] we treated temporary appointments as follows:
The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship
with his former permanent position. When the temporary appointment was not renewed, the petitioner had no
cause to demand reinstatement thereto. (Underscoring ours.)
Another argument against the concept of automatic absorption is the physical and legal impossibility
given the number of available positions in the DPOS and the number of personnel to be absorbed. [21] We note
that Section 1 of Ordinance NC-140 provides:
There is hereby established in the Quezon City Government the Department of Public Order and Safety whose
organization, structure, duties, functions and responsibilities are as provided or defined in the attached
supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance.
A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the
position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent
with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic
absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly
salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in
the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption
impossible.
Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law
creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to
discuss whether their acceptance of the contractual appointments constitutes an abandonment or waiver of such
positions. It escapes us how one can relinquish or renounce a right one never possessed. A person waiving must
actually have the right which he is renouncing.
G.R. 126354
In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of
Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil
Service Commission has no authority to compel the mayor of Quezon City to reinstate Jovito C. Labajo to the
DPOS.
The standing of petitioner Civil Service Commission to bring this present appeal is questionable.
We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has
opted not to appeal.
Basic is the rule that every action must be prosecuted or defended in the name of the real party in
interest.[22] A real party in interest is the party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit.
In Ralla vs. Ralla we defined interest as material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or mere incidental interest. [23] As a general
rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in
an action.
In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party
in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement.
We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro
Dacoycoy[24] which overturned our rulings in Paredes vs. Civil Service Commission,[25] Mendez vs. Civil Service
Commission[26] and Magpale vs. Civil Service Commission.[27] In Dacoycoy, we affirmed the right of the Civil
Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously
prejudice the civil service system.
The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative
case involving nepotism whose deleterious effect on government cannot be overemphasized. The subject of the
present case, on the other hand, is reinstatement.
We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of
one obviously reluctant to litigate, can impair the effectiveness of government.Accordingly, the ruling
in Dacoycoy does not apply.
To be sure, when the resolutions of the Civil Service Commission were brought before the Court of
Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil
Service Commission can be likened to a judge who should detach himself from cases where his decision is
appealed to a higher court for review.[28]
21
 In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as
adjudicator and became an advocate. Its mandated function is to hear and decide administrative cases
instituted by or brought before it directly or on appeal, including contested appointments and to review decisions
and actions of its offices and agencies,[29] not to litigate.
Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354.
WHEREFORE, the petitions of Ismael A. Mathay in G.R. No.124374 and G.R. No. 126366 are GRANTED
and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET
ASIDE.
The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing
to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 110544 October 17, 1995
REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO
FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang
Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES,
HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG
BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA
ESTRELLANES, respondents.
KAPUNAN, J.:
Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of
Court to set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August
1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda,
et al." denying petitioners' motion for suspension of their arraignment.
The present controversy arose from the following antecedents:
On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as
industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the
Sangguniang Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Santos of the
Department of Local Government. Private respondents Binaohan and Estrellanes took their oath of office on 16
February 1989 and 17 February 1989, respectively.
Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said
designations. The latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor
Reynaldo Tuanda to recognize private respondents as sectoral representatives.
On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros
Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang
Bayan. It was dismissed on 23 July 1991.
Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to
declare null and void the designations of private respondents as sectoral representatives, docketed as Civil Case
No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local Government, et al."
On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936
entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus:
INFORMATION
The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses
REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P.
AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and
SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended,
committed as follows:
That during the period from February 1989 to February 1991 and
subsequent thereto, in the Municipality of Jimalalud, Negros
Oriental, and within the jurisdiction of this Honorable Court,
accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-
Mayor HERMENEGILDO G. FABURADA, Sangguniang Members
MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA,
MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES and SANTOS A. VILLANUEVA while in the
performance of their official functions and taking advantage of
their public positions, with evident bad faith, manifest partiality,
and conspiring and confederating with each other did, then and
there, wilfully and unlawfully cause undue injury to Sectoral
Members Bartolome M. Binaohan and Delia T. Estrellanes by
refusing to pay despite demand the amount of NINETY FIVE
THOUSAND THREE HUNDRED FIFTY PESOS (P95,350.00) and
ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS
(P108,900.00) representing respectively their per diems, salaries
and other privileges and benefits, and such undue injury
continuing to the present to the prejudice and damage of
Bartolome Binaohan and Delia Estrellanes.
CONTRARY TO LAW. 1
On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in
Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before
the Regional Trial Court of Dumaguete City.2
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 respondents as sectoral
representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise known as the
Local Government Code.3
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R.
No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601,
87602, 87792, 87935, 88072, and 90205) all promulgated on August 24, 1990, ruled
that:
B.P. Blg. 337 explicitly required that before the President (or the
Secretary of the Department of Local Government) may appoint
members of the local legislative bodies to represent the
Industrial and Agricultural Labor Sectors, there must be a
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 consultation with associations and
persons belonging to the sector concerned.
22
 The Supreme Court further ruled
For that matter, the Implementing Rules and Regulations of the
Local Government Code even prescribe the time and manner by
which such determination is to be conducted by the Sanggunian.
Consequently, in cases where the Sanggunian concerned has not
yet determined that the Industrial and Agricultural Labor Sectors
in their particular city or municipality are of sufficient number to
warrant representation, there will absolutely be no basis for the
designation/appointments.
In the process of such inquiry as to the sufficiency in number of the sector concerned to
warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult
with associations and persons belonging to the sector concerned. Consultation with the
sector 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 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 designation.
Since in the present case, there was total absence of the required prior determination by
the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations
of private defendants as sectoral representatives null and void.
This verdict is not without precedence. In several similar cases, the Supreme Court
invariably nullified the designations where the requirements of Sec. 146 (2), B.P. Blg.
337 were not complied with. Just to cite one case, the Supreme Court ruled:
There is no certification from the Sangguniang Bayan of
Valenzuela that the sectors concerned are of sufficient number to
warrant representation and there was no consultation
whatsoever with the associations and persons belonging to the
Industrial and Agricultural Labor Sectors. Therefore, the
appointment of private respondents Romeo F. Bularan and Rafael
Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis
Santos, et al., G.R. No. 86394, August 24, 1990).4
Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV No.
36769, where the same is currently pending resolution.
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for
suspension of proceedings filed by petitioners. Said respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros
Oriental, it appears, nevertheless, that the private complainants have been rendering
services on the basis of their respective appointments as sectoral members of the
Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their said
appointments enjoy the presumption of regularity. Having rendered such services, the
private complainants are entitled to the salaries attached to their office. Even
assuming arguendo that the said Regional 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 such judicial declaration of nullity, the
private complainants are considered at least de facto public officers acting as such on
the basis of apparently valid appointments 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 withheld salaries for the services
they have actually rendered as sectoral representatives of the said Sangguniang Bayan.
Hence, the decision that may be rendered by the Regional Trial Court in Civil Case No.
9955 would not be determinative of the innocence or guilt of the accused.
WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of
Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack of
merit.
SO ORDERED.5
Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the 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 the justification that the grounds stated in
the said motion were a mere rehash of petitioners' original motion to hold the case in abeyance. 6 The dispositive
portion of its order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of the accused which was
scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor
P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are,
however, hereby ordered to show cause in writing within ten (10) days from service
hereof why they should not be cited for contempt of court for their failure to appear in
court today for arraignment.
In case of an adverse resolution on the motion to quash which is to be filed by the
counsel for the defense, set this case for arraignment, pre-trial and trial on January 4 &
5, 1993, on all dates the trial to start at 8:30 o'clock in the morning.
SO ORDERED.7
On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending
the issuance of an extended resolution.8
No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent
Sandiganbayan set the arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused from the scheduled hearing today
which We deem to be excusable, reset this case for arraignment on June 30, 1993 and
for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the trial to start at
8:30 o'clock in the morning.
Give proper notice to the accused and principal counsel, Atty. Alfonso Briones.
Considering that the accused come all the way from Himalalud, Negros Oriental, no
postponement will be allowed.
SO ORDERED.9
Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent
Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of discretion in denying petitioners'
motions for the suspension of the proceedings in Criminal Case No. 16936 in spite of the
pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend
the proceedings that would entail a retrial and rehearing by it of the basic issue
involved, i.e., the validity of the appointments of private respondents and their
entitlement to compensation which is already pending resolution by the Court of Appeals
in C.A. G.R. CV No. 36769; and
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 two
alternative theories that private respondents are de jure and/or de facto officers in
violation of petitioners' right to due process.10
23
In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents'
designation as sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial
question justifying suspension of the proceedings in the criminal case against petitioners.
A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it
may proceed (see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the
criminal case. Thus, the resolution of the prejudicial question is a logical antecedent of the issues involved in
said criminal case.11
A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of
the issue involved therein, and the cognizance of which pertains to another 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 a question based on a fact distinct and separate from "the crime but
so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the
criminal action, it must appear not only that said case involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case,
the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a
situation where a civil action and a criminal action are both pending and there exists in the former an issue
which must be preemptively resolved 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
The rationale behind the principle of prejudicial question is to avoid two conflicting decisions.14 It has two
essential elements:
(a) the civil action involves an issue similar or intimately related to the issue raised in
the criminal action; and
(b) the resolution of such issue determines whether or not the criminal action may
proceed.15
Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV No.
36769, constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings
in the criminal case against petitioners.
All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt
that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely
related. The filing of the criminal case was premised on petitioners' alleged partiality and evident bad faith in not
paying private respondents' salaries and per diems as sectoral representatives, while the civil action was
instituted precisely to resolve whether or not the designations of private respondents as sectoral representatives
were made in accordance with law.
More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to
proceed with the criminal action.
Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due to
their refusal, allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as sectoral
representatives. This refusal, however, was anchored on petitioners' assertion that said designations were made
in violation of the Local Government 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
sectoral representatives for failure to comply with the provisions of the Local Government Code (B.P. Blg. 337,
sec. 146[2]), the charges against petitioners would no longer, so to speak, have a leg to stand on. Petitioners
cannot be accused of bad faith and partiality there being in 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 other words, the Court of Appeals' resolution of the issues raised in the civil action will
ultimately determine whether or not there is basis to proceed with the criminal case.
Private respondents insist that even if their designations are nullified, they are entitled to compensation for
actual services rendered.16 We disagree. As found by the trial court and as borne out by the records, from the
start, private respondents' designations as sectoral representatives have been challenged by petitioners. They
began with a petition filed with the Office of the President copies of which were received by private respondents
on 26 February 1989, barely eight (8) days after they took their oath of office. 17 Hence, private respondents'
claim that they have actually rendered services as sectoral representatives has not been established.
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13744 November 29, 1918
JOSE LINO LUNA, petitioner-appellant,
vs.
EULOGIO RODRIGUEZ, respondent-appellant;
SERVANDO DE LOS ANGELES, respondent.
Ramon Diokno and Agapito Ygnacio for petitioner.
Sumulong & Estrada for respondent.
JOHNSON, J.:
It appears from the record that an election for the office of governor of the Province of Rizal was held on the 6th
day of June, 1916. At said election Jose Lino Luna, Eulogio Rodriguez and Servando de los Angeles were
candidates for said office. The election was closed, the votes cast in the various municipalities were counted,
and a return was made by the inspectors of said municipalities to the provincial board of canvassers, who, after
a canvass of said returns, proclaimed the following result:
(a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Servando de los Angeles 3,576
votes; and (d) that Eulogio Rodriguez, having received a plurality of said votes, was duly elected governor of
said province.
Against said proclamation Jose Lino Luna presented a protest in the Court of First Instance. Upon said protest
issue was joined, hearing was had and a decision was rendered which was, on appeal, set aside and a new trial
ordered. (Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with said order, a new
trial was had at which the Honorable William E. McMahon, judge, presided. Additional evidence was adduced.
After a consideration of all of the facts and the evidence adduced at both trials, Judge McMahon reached the
conclusion that the ballots cast for the various candidates were as indicated in the returns of the inspectors of
the various municipalities except those in the municipality of Taytay and Binangonan. In the municipality of
Taytay, Judge McMahon found from the evidence that 50 ballots cast for Eulogio Rodriguez should not have
been counted for him, and ordered that number of votes deducted from his total. In the municipality of
Binangonan, Judge McMahon found that the inspectors did not close the polls at 6 o'clock p.m., and that a large
number of persons voted after that time, and directed that the total vote of Eulogio Rodriguez should be
reduced by the number of such votes, without ascertaining how many had been cast for Rodriguez and how
many for Luna. By deducting the said votes in the municipality of Taytay and those cast after six o'clock p.m. in
the municipality of Binangonan, Judge McMahon concluded that Jose Lino Luna had received a plurality of the
legal votes cast at said election and ordered the provincial board of canvassers to correct its canvass
accordingly. From that conclusion both parties to the contest appealed to this court and made several
assignments of error.
Considering all of said assignments of error, we find that they present, in fact, but three questions:
(1) What is the effect of holding the polls open after the hour fixed for closing the election?
(2) What is the effect of assistance rendered by the inspectors of the election to incapacitated persons, without
first requiring of such persons an oath to the effect that they are incapacitated to prepare their own ballots?
24
(3) What is the effect of a failure on the part of the authorities to provide proper voting booths?
With reference to the first question, the law provides that "at all the elections held under the provisions of this
Act the polls shall be open from seven o'clock in the morning until six o'clock in the afternoon, during which
period not more than one member of the board of inspectors shall be absent at one time, and then for not to
exceed twenty minutes at one time." (Sec. 21 of Act No. 1582; sec. 11 of Act No. 2045; sec. 543 of Act No.
2657, and sec. 445 of Act No. 2711.) Are the provisions with reference to the time of opening and closing the
polls mandatory? It is admitted in the present case that the polls were not closed at 6 p.m. The record shows
that at 6 p.m. a large number of voters had not yet been able to vote and that, for that reason, an agreement
was made between some of the candidates for office who were present and the board of inspectors, to the effect
that the polls should be kept open in order that such electors might vote. No objection whatever to that
agreement was made by any person at that time.
One of the reasons why all of the voters of the municipality had not voted before 6 p.m. was that the board of
inspectors failed to have the list of voters properly prepared at 7 a.m., and therefore but few of the voters were
able to vote before eleven or eleven-thirty in the morning. That failure, on the part of the board of inspectors,
made it impossible for many of the voters of the municipality of Binangonan to vote before the regular time for
the closing of the polls.
Shall the ballot of an innocent voter, who is prevented, through no fault of his, from casting the same before 6
p.m. be annulled for the simple reason that the polls were kept open, after the hour designated by the law, for
the purpose of giving such voter an opportunity to vote?
Experience and observation has taught legislatures and courts that, at the time of a hotly contested election, the
partisan spirit of ingenious and unscrupulous politicians will lead them beyond the limits of honesty and decency
and by the use of bribery, fraud and intimidation, despoil the purity of the ballot and defeat the will of the
people at the polls. Such experience has led the legislatures to adopt very stringent rules for the purpose of
protecting the voter in the manner of preparing and casting his ballot to guard the purity of elections.
(Paulino vs. Cailles, 37 Phil. Rep., 825.)
The infinite ingenuity of violent partisan spirit in evading the rules and regulation of elections and the use of
bribery, fraud and intimidation has made necessary the establishment of elaborate and rigid rules and
regulations for the conduct of elections. The very elaborateness of these rules has resulted in their frequent
violation and the reports of the courts are replete with cases in which the result of an election has been attacked
on the ground that some provision of the law has not been complied with. Presumably, all the provisions of the
election laws have a purpose and should therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A.,
171; 9 R. C. L., 1091; Patton vs.Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.)
It has been announced in many decisions that the rules and regulations, for the conduct of elections, are
mandatory before the election, but when it is sought to enforce them after the election they are held to be
directory only, if that is possible, especially where, if they are held to be mandatory, innocent voters will be
deprived of their votes without any fault on their part. (Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep.,
43, 72; Jones vs. State, 153 Ind., 440.)
In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the Election Law does not provide
that a departure from a prescribed form will be fatal and such departure has been due to an honest mistake or
misrepresentation of the Election Law, and such departure has not been used as a means for fraudulent
practices and it is clear that there has been a free and honest expression of the popular will, the law will be held
to be directory and such departure will be considered a harmless irregularity. However, the irregularities may be
so numerous as not to be attributed to ignorance or honest mistake, but to a design to defeat the will of the
voters or to such careless disregard of the law as to amount not only to laches but to fraudulent intent. In such
cases, the election officers should be punished, the election should be declared null and a new election held.
It has been held, therefore, very generally, that the provisions of a statute as to the manner of conducting the
details of an election are not mandatory, but directory merely, and irregularities, in conducting an election and
counting the votes, not proceeding from any wrongful intent and which deprives no legal voter of his vote, will
not vitiate an election or justify the rejection of the entire votes of a precinct. (Behrensmeyer vs. Kreitz, 135 Ill.,
591; Hankey vs.Bowman, 82 Minn., 328; Sprague vs. Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann.,
610.)
The purpose of an election is to give the voters a direct participation in the affairs of their government, either in
determining who shall be their public officials or in deciding some question of public interest; and for that
purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that
is done and no frauds have been committed, the ballots should be counted and the election should not be
declared null. Innocent voters should not be deprived of their participation in the affairs of their government for
mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule
would make the manner and method of performing a public duty of greater importance than the duty itself.
(Loomis vs. Jackson, 6 W. Va., 613.)
The errors and irregularities which warrant the rejection of ballots and the annulment of an election and thus
deprive lawful voters of their legal right to vote, should be such as to fully justify that result. (The
People vs. Cook, 8 N. Y., 67; 59 Am. Dec., 451.) It has been held that even great irregularities on the part of
election officers will not of necessity vitiate an election, where no fraud is committed or attempted, or no illegal
vote was polled was no legal voter was deprived of his vote. (Morris vs. Vanlaningham, 11 Kan., 269.)
No complaint is made that any fraud was committed nor that any person voted who had no right to vote, by
reason of the fact that the polls were kept open after the hour fixed by the law. It is admitted that the polls
were kept open after the hour, by the consent of all parties concerned, for the reasons and purposes above
indicated. In view of such facts, should the vote of the innocent voter be annulled and he thereby deprived of his
participation in the affairs of the government when he was guilty of no illegal act? If the inspectors may, for one
reason or another, prevent the opening of the polls or delay the commencement of the voting until 11 o'clock in
the morning and then close the polls in the evening so as to prevent all those who desire to vote from voting,
without incurring criminal liability for a violation of the election laws, the same motives will induce them to delay
the opening of the polls until later and thus prevent any to vote except those whom they desire.
The polls should be opened and closed in strict accord with the provisions of the law. Voters who do not appear
and offer to vote within the hours designated by the law should not be permitted to vote after the time for
closing the polls has arrived. Upon the other hand, if the voter is prevented, during the voting hours, from
voting, and is not permitted to vote by reason of the failure of the inspectors to do their duty, then, certainly, in
the absence of some fraud, neither such votes nor the entire vote of the precinct should be annulled simply
because some votes were cast after the regular hour. (People vs. Prewett, 124 Cal., 7; Packwood vs. Brownell,
121 Cal., 478; Pickett vs.Russell, 42 Fla., 116.)
The decisions in the various States of the United States are not uniform upon the effect of a failure to open and
close polls at the time specified by the law. In some States such a provision has been held to be mandatory, in
others directory. The decisions seem to be based upon the language of the particular statutes discussed.
We are not inclined to the belief that the legislature intended that a failure to comply with the law in this
jurisdiction should render the entire election void, nor nullify the votes cast after the period mentioned in the
law, unless the polls were kept open after the hour for the purpose of permitting some fraud to be committed,
or for the purpose of permitting some person to vote who had not appeared during the regular voting hours.
The section of the law which we are discussing provides that 'not more than one member of the board of
inspectors shall be absent at one time and then for not to exceed twenty minutes at one time." Suppose that the
evidence showed that two of the inspectors were absent at one time and for a period longer than twenty
minutes, would the courts be justified in holding that the entire election was void, in the absence of fraud, for
the reason? There is little justification for holding that one provision of said section is mandatory and the other
directory.
Our conclusion upon the first question, in view of the foregoing, is that in the present case there seems to be no
justification, under the facts, there being no fraud committed, for annulling the votes of innocent voters who
were permitted by the election inspectors to cast their votes in a legal manner after the regular hour for closing
the polls. In this conclusion, however, we do not desire to be understood to have decided that in no case should
the courts not annul and set aside an election, where fraud is clearly proved, for a violation of the section under
discussion. When the polls are kept open after the hour prescribed by the law for the purpose of defeating the
will of the people, such a violation of the law should result in annulling and setting aside the election of that
precinct. No such facts exist in the present case. It is true, perhaps, that a number of the votes cast after the
hour for closing the polls were sufficient to change the result of the election, but the result would have been the
same had those same voters been permitted to vote, except for the negligence of the inspectors, during the
regular hours for voting. There seems to be no more reason for annulling the votes cast, after the hour for
closing the election, than for annulling the election for the reason that the inspectors failed to provide the means
for voting at the time fixed for opening the polls in the morning.
We are firmly of the opinion that instead of depriving the innocent voters of their right to participate in the
affairs of their government for irregularities committed by the election inspectors, the latter should be
proceeded against in a criminal action for failure, on their part, to comply with the law and be punished in
accordance with section 29 of Act No. 1592; section 2632 of Act No. 2657 and section 2639 of Act No. 2711.
25
The various and numerous provisions of the Election Law are adopted to assist the voters in their participation in
the affairs of the government, and not to defeat that object. When the voters have honestly cast their ballots,
the same should not be nullified simply because the officers appointed, under the law to direct the election and
guard the purity of elections, have not done their duty. The law provides a remedy, by criminal action, against
them. They should be prosecuted, and the will of the honest voter, as expressed through his ballot, should be
protected and upheld.lawphi1.net
It may be noted in this relation that, under the law, the polls are kept open from 7 a.m. until 6 p.m. or, for a
period of eleven hours only. In the municipality of Binangonan the record shows that there were
375 analfabetos (illiterate persons) and 164 other voters. The law requires an analfabeto to take an oath and
that the oath shall be filed. Naturally the inspectors require some time in (a) ascertaining whether or not the
voter is in fact an analfabeto; (b) in administering, preparing, signing and filing the oath. Suppose one minute
only is allowed for that work. Then two inspectors must accompany such a voter to the booth, there assist him
in preparing his ballot and then return to their position occupied by them as inspectors. We do not think that
work could be accomplished in less than another minute and it would more than likely occupy nearer two
minutes. But admitting that it could be accomplished in one minute, we have, at least, two minutes occupied by
two inspectors for each analfabeto. There being 375 analfabetos, it would require 750 minutes to vote, or 12
hours. If the inspectors had strictly complied with the law, not all of the analfabetos of said municipality could
have voted in the eleven hours provided by the law, not to say anything of the time necessarily occupied with
the 164 other voters of the municipality who would, at least, occupy one minute each of the time of the
inspectors, or nearly 2 1/2 hours more. With reference to this particular question of the time necessary for
each analfabeto to vote, some of the judges have estimated that it would take, at least, five minutes of the time
of the inspectors for each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230, post.)
From the foregoing, it was practically an impossibility for all of the voters of said municipality to have voted in
the eleven hours prescribed by the law even though the polls had been opened promptly at 7 a.m. instead of at
nearly 11 a.m. The above time is computed upon the theory that no time whatever is lost, that the voters arrive
one immediately after another and that no time is lost waiting for the arrival of the voters.
With reference to the second question above presented, the law provides that:
A voter otherwise qualified who declares that he can not write, or that from blindness or other
physical disability he is unable to prepare his ballot, may make an oath to the effect that he is so
disabled and the nature of his disability and that he desires the inspectors to assist him in the
preparation of such ballot. The board shall keep a record of all such oaths taken and file the same
with the municipal secretary with the other records of the board after the election. Two of the
inspectors, each of whom shall belong to a different political party, shall ascertain the wishes of the
voter, and one of them shall prepare the ballot of the voter in proper form according to his wishes,
in the presence of the other inspector, and out of view of any other person. The information this
obtained shall be regarded as a privileged communication. (Section 12, Act No. 2045; section 550,
Act No. 2657; section 453, Act No. 2711.)
Said quoted section provides the method by which a person who cannot prepare his ballot may be assisted. The
conditions are:
(a) That he must make an oath to the effect that he is disabled and the nature of his disability
together with the fact that he desires the inspectors to assist him in the preparation of his ballot;
(b) That a record of said oath shall be filed with the municipal secretary with the other records of the
board of inspectors after the election; and
(c) When said oath is taken, then two of the inspectors, each of whom shall belong to different
political party, may assist him in the preparation of his ballot.
In view of said conditions, what shall be the effect of a failure to comply therewith? Suppose, for example, that
the voter is incapacitated; that the board of inspectors are fully aware of that fact; that they failed to require of
him the oath; that they failed to keep on file the oath taken, or that one inspector only assisted said voter in the
preparation of his ballot, or that two assisted him which belonged to the same party, shall the ballot of such an
incapacitated person be rejected? Shall all of the votes of the precinct be nullified because of the failure of the
inspectors to comply strictly with the letter of the law?
We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that the ballots of incapacitated
persons who voted without taking the oath or were assisted by one inspector alone, or by two belonging to the
same party, should not be counted if such ballots could be identified. We further held that, in the absence of
fraud, all of the ballots of the precinct should not be invalidated by the mere fact that the inspectors did not
comply with their duty. Innocent voters should not be deprived of their participation in an election for a violation
of the law for which they were in no way responsible and which they could not prevent.lawphil.net
The incapacitated persons mentioned in said section above noted are usually persons who are unable to
acquaint themselves with the provisions of the law. They are, therefore, absolutely dependent upon the advice
and counsel of others. Generally, they have no idea whatever as to the form and requirements in casting their
ballots. Their ignorance, however, does not relieve them from their responsibility under the law, nor from the
effect of their failure to comply therewith. (Manalo vs. Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G.
No. 12382 decided March 15, 1917, not published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.)
The law intended that those votes only who are incapacitated in some way should be assisted. To insure a
compliance with the law an oath of incapacity is required. To prove that only such persons have received
assistance, the election board is required to keep a record of such oath. To guarantee that such voters should
not be imposed upon, the law wisely provided that two inspectors of different political faith should assist them.
Upon the other hand, if the inspectors have failed or declined to perform a duty or obligation imposed upon
them by the Election Law, they may be punished.
The record shows that in many of the municipalities of the Province of Rizal, during the election in question, a
great many incapacitated persons voted without taking the oath required and were assisted by one inspector
only in the preparation of their ballots. But, in view of the fact that such ballots have not been identified they
cannot be rejected. The voter cannot be punished. The remedy is by a criminal action against the inspectors for
a failure to comply with the law. (Section 29, Act No. 1582; section 2632, Act No. 2657; section 2639, Act No.
2711.)
Said section (2632) provides, among other things, that any member of a board of registration, or board of
inspectors, or board of canvassers who willfully declines or fails to perform any duty or obligation imposed by
the Election Law, shall be punished by imprisonment for not less than one month nor more than one year, or by
a fine of not less than P200 nor more than P500 or both.
With reference to the third question above indicated, relating to what is the effect of a failure on the part of the
authorities to provide proper voting booths, it may be said that we have held in the case of Gardiner vs. Romulo
(26 Phil. Rep., 521) that the requirements of the Election Law providing for the location of polling stations and
the construction of booths and guard rails for the latter may be departed from in some particulars and yet
preserve, in substantial form, the secrecy which the law requires. But the failure to provide doors and guard
rails for the booths and the placing of the writing shelf so that it faces the side instead of the rear of the booths
are, combined, a fatal disregard of the law, inasmuch as such an arrangement does not offer, even in
substantial form, the secrecy and seclusion which, according to the purpose and spirit of the Election Law, is its
most mandatory requirement.
Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section 415 of Act 2711, provides
that there shall be in each polling place, during each election, a sufficient number of voting booths, not less than
one for every fifty voters, in the election precinct. Said section further provides how such voting booths, not less
than one every fifty voters, in the election precinct. Said section further provides how such voting booths shall
be constructed. The purpose of said provisions is to furnish each voter an opportunity to prepare his ballot in
secrecy. Suppose the board of inspectors does not prepare the voting booth in exactly the form prescribed by
law, what shall be the effect? Support, the example, that they construct a booth less than one meter square as
is provided by the law but yet sufficiently large to enable the voter to enter and to prepare his ballot in secrecy;
or suppose that the door swinging outward to the booth shall extend to the floor instead of within fifty
centimeters of the floor; or suppose that the shelf upon which the voter shall prepare his ballot shall be less
than thirty centimeters wide, shall the entire election be declared null and void for such failures when it is
admitted and proved, beyond question, that even with such defects in the fulfillment of the requirements of the
election law they were in fact constructed in a manner which provided the voter a complete opportunity to
prepare his ballot in absolute secrecy? While there is no provision in the law, relating to the construction of
booths, they shall be constructed in such manner as to afford the voter an opportunity to prepare his ballot in
secret, that must be the primary and ultimate object of having the booths constructed in the manner indicated.
When we held that the law requiring the preparation of the booths in a particular manner was mandatory, we
did not mean to hold that unless they were prepared in exact conformity with the law, that the election would be
nullified. We simply held that if they were not constructed in a manner which afforded the voters an opportunity
to prepare their ballots in secret, the election would be declared null and void on that account. If, however, upon
the other hand, the booths were so constructed, even though not in strict accord with the provisions of the law,
as to afford each voter an opportunity to prepare his ballot in secret, the election should not be declared null
and void. Secrecy is the object of the booth. An opportunity to prepare his ballot in private is the purpose of the
26
provision. When the booth affords that protection, the purpose of the law is fulfilled. To hold otherwise to
establish a different rule would make the manner of performing a public duty more important than
the performance of the duty itself.
In the present case, while there is some conflict in the evidence, and while the proof clearly shows that the
booths were not constructed in strict accordance with the provisions of the law, we are of the opinion that a
large preponderance of the evidence shows that the booths were constructed (defectively perhaps) in a manner
which afforded each voter an opportunity to prepare his ballot in absolute secrecy. That being true, we find no
reason for changing or modifying the conclusion of the lower court.
The defendant-appellant alleges, and attempts to establish the fact, that in the municipality of San Felipe Nery
many irregularities were committed which should invalidate the election. For example, he alleges the different
columns of the polling list were not properly filled. Even granting that fact, the voter was in no way responsible.
The voter not being responsible, his ballot should not be nullified on that account. Filling the different columns of
the polling list is a duty imposed upon the election officers. If they fail to perform their duty they are
responsible; and as we have frequently said, the ballots of innocent voters should not be nullified for a failure on
the part of election officers to perform their duty in accordance with the provisions of the law. The remedy is a
criminal action against the inspectors if they have violated the law and not to nullify the votes of innocent
voters.
The defendant-appellant further alleges that in the municipality of San Felipe Nery, a number of voters voted
who were not residents of said municipality. That question was presented to the court below, and upon a full
consideration he refused to nullify the election in said municipality upon the grounds alleged. While it is true that
the proof shows that some grave irregularities were committed by the board of inspectors, we are not
persuaded that the evidence is sufficient to justify this court in nullifying the entire vote of said municipality. In
view of that conclusion, we deem it unnecessary to discuss the other allegations of the defendant-appellant with
reference to the striking out of certain allegations in his answer.
The lower court, after hearing the evidence and after examining the ballots cast in the municipality of Taytay,
found that 50 ballots which had been counted for the defendant-appellant should not be counted for him and
ordered that the total vote of the defendant-appellant should be reduced by that number. The defendant-
appellant in fact admits that the said 50 votes should be deducted from his total vote. In view of that admission
of the defendant-appellant, we deem it unnecessary to discuss the reasons therefor.
Upon the various errors assigned, our conclusions are:
(1) That the total votes cast in the municipality of Binangonan should be counted for the respective
candidates; that for the special reason given, the board of inspectors was justified in keeping the
polls open after the hour for closing. But this conclusion must not be interpreted to mean that under
other circumstances and other conditions, where the polls are kept open after the hour for
fraudulent purposes, that such act on the part of the inspectors might not nullify the entire election
(Gardiner vs. Romulo, 26 Phil. Rep., 521);
(2) That while it is irregular for the board of inspectors to permit incapacitated voters to vote
without taking the oath and for one inspector only to assist such voters, yet the ballots of the
innocent voters should not be nullified on that account; that the ballots of such persons only should
be annulled when identified;
(3) That inasmuch as the voting booths in the municipality of Antipolo were prepared in a manner
and form which permitted the voter to prepare his ballot in absolute secrecy, the vote of that
municipality should not be nullified; and
(4) That the judgment of the lower court reducing the total vote of the defendant-appellant by fifty
identified fraudulent ballots counted for him, in the municipality of Taytay, should be affirmed.
As a result of the count of the ballots, cast in the various municipalities by the provincial board of inspectors,
Eulogio Rodriguez received 4,321 votes, Jose Lino Luna received 4,157 votes and Servando de los Angeles
received 3,576 votes. Servando de los Angeles did not protest the election. From all of the foregoing, the total
votes of Eulogio Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only, or a clear majority of
114 votes.
Therefore, with the modification herein indicated, the judgment of the lower court is affirmed as modified, and it
is hereby ordered and decreed that the record be immediately returned to the lower court with direction that a
judgment be entered directing and ordering the provincial board of inspectors to amend its count accordingly.
It is so ordered, without any finding as to costs.
Arellano, C.J., Torres, Street, Malcolm and Avancea, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 90762 May 20, 1991
LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,
vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province
of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO
LUNA,respondents.
Zozimo G. Alegre for petitioner.
The Provincial Attorney for respondents.
RESOLUTION
GUTIERREZ, JR., J.:
This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied
the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the
August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as
Acting Vice-Governor and, therefore, his designation was invalid. In this motion, the primary issue is the right to
emoluments while actually discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been
proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-
Governor, Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was
also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the
Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner
to act as the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no
provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the
appointment of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is
temporarily performing the functions of the Governor, could concurrently assume the functions of both offices.
As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the
Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held
invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the
resolution reads:
WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is
no permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the
Office of the Vice-Governor after he took his oath of office to said position.
WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid
official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable
Rogelio L. Granados and the Honorable Renato M. Rances.
27
 RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-
Governor of Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought
clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion.1wphi1 The pertinent
portion of the letter reads:
This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to
Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that
"there is no succession provided for in case of temporary vacancy in the office of the vice-governor
and that the designation of a temporary vice-governor is not necessary.
We hold the view that the designation extended by the Secretary of Local Government in favor of
one of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and
duties of the vice-governor during the pendency of the electoral controversy in the Office of the
Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang
Panlalawigan member was temporarily designated to perform the functions of the vice-governor
could not be considered that the Sangguniang member succeeds to the office of the latter, for it is
basic that designation is merely an imposition of additional duties to be performed by the designee
in addition to the official functions attached to his office. Furthermore, the necessity of designating
an official to temporarily perform the functions of a particular public office, would depend on the
discretion of the appointing authority and the prevailing circumstances in a given area and by taking
into consideration the best interest of public service.
On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in
the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte,
where the electoral controversy in the Office of the Governor has not yet been settled, calls for the
designation of the Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local
Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-
Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang
Panlalawigan be modified accordingly. The letter states:
In view thereof, please correct previous actions made by your office and those of the Sangguniang
Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation
as acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was
deprived of such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier
request.
Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to
correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of
Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The
petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the
acting Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was
proclaimed the Governor of the province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte,
Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the
amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor
Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation
which he received while acting as the Vice-Governor of Leyte.
On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed
that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the
Vice-Governor while he was acting as such.
The petitioner interposes the following reason for the allowance of the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS
DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE
AND EQUITY.
The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether
or not the Secretary of Local Government has the authority to make temporary appointments?
The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the
appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-
Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the
Local Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-
Governor, they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus
for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a
legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to
assume and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A
Treatise on the Law on Public Offices and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was
left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of
the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of
the office of the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the
Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a
Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended
period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy
in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the
petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had
the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular
office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a
higher authority.
Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local
Government had the authority to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the
Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in
law is wanting.
The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-
Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor
for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a
pending election case before the Commission on Elections.
28
The two-year interregnum which would result from the respondents' view of the law is disfavored as it would
cause disruptions and delays in the delivery of basic services to the people and in the proper management of the
affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without
affording any remedy was ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules
that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President,
acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid
the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public
service demanded nothing less than the immediate appointment of an acting Vice-Governor.
The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and
reconsidered his previous position and acknowledged the need for an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the
President is empowered to make temporary appointments in certain public offices, in case of any vacancy that
may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the
absence of any contrary provision in the Local Government Code and in the best interest of public service, we
see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the
present case. The respondents contend that the provincial board is the correct appointing power. This argument
has no merit. As between the President who has supervision over local governments as provided by law and the
members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President,
until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the
constituents of their right of representation and governance in their own local government.
In a republican form of government, the majority rules through their chosen few, and if one of them is
incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered.
Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the
Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher
officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two
years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling
the vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial
problems and to serve as the buffer in case something might happen to the acting Governor becomes
unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor
Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just
be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the
public is the primary concern of those in the government. It is a continuous duty unbridled by any political
considerations.
The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code.
There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly
the intent to provide for continuity in the performance of the duties of the Vice-Governor.
The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . .
refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is
otherwise permanently incapacitated to discharge the functions of his office the sangguniang
panlalawigan . . . member who obtained the highest number of votes in the election immediately
preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent
vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a
need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained
the highest number of votes. The Department Secretary acted correctly in extending the temporary
appointment.
In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is
indubitable. The compensation, however, to be remunerated to the petitioner, following the example in
Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against
double compensation must only be such additional compensation as, with his existing salary, shall not exceed
the salary authorized by law for the Office of the Vice-Governor.
And finally, even granting that the President, acting through the Secretary of Local Government, possesses no
power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known
appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the
President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto
Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of
the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505
was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the
appointment of the petitioner was made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He
was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine
is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for
the services he actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta,
61 SCRA 55 [1974])
WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the
petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board
Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be
retained by him.
SO ORDERED.
EN BANC
[G.R. No. 122197. June 26, 1998]
ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON AUDIT, respondent.
DECISION
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated September
7, 1995,[1] the dispositive portion of which reads, to wit:
Foregoing premises considered, the instant appeal cannot be given due course.Accordingly, the disallowance in
question in the total amount of P52,908.00 is hereby affirmed. Considering that the claim for the RATA
differential in the amount of P8,400.00 is devoid of any legal basis, the same is also disallowed. Hence,
appellant Zosimo M. Dimaandal is hereby directed to refund the salary and RATA differential in the amount
of P61,308.00 he had received from the Provincial Government of Batangas. [2]
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply Officer III,
was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A. Mayo of
Batangas. Pursuant to the designation, petitioner filed a claim for the difference in salary and Representation
and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year
of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was allowed was only
the amount of P8,400.00 which corresponds to the difference in the allowances attached to the designation and
the position occupied by the appellant. The disallowance was premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant case as the
power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance.
29
2. The designation is temporary in nature and does not amount to the issuance of an appointment as could
entitle the designee to receive the salary of the position to which he is designated (Opinion of the Director,
Office for Legal Affairs, Civil Service Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the
subject disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the same provides
that the Governor General or the officer having the power to fill-up a temporary absence or disability in the
provincial office has the power to order or authorize payment of compensation to any government officer or
employee designated or appointed temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant Provincial Treasurer for
Administration was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for Administration was no
longer performing the duties and functions of Supply Officer III."
The Provincial Auditor, however, denied the request for reconsideration. Appellant was required to refund
the amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained the stand of the Provincial
Auditor of Batangas as valid and proper. The respondent Commission was of the view that the petitioner was
merely designated as an Assistant Provincial Treasurer for Administration in addition to his regular duties. As
such, he is not entitled to receive an additional salary. The Commission further opined that petitioner was
likewise not entitled to receive the difference in RATA provided for under the Local Budget Circular issued by the
Department of Budget and Management considering that the party designating him to such position is not the
duly competent authority, provided for under Section 471 of the Local Government Code. Notably, petitioner
was appointed as Assistant Provincial Treasurer for Administration by the Secretary of Finance only on July 8,
1994.
Thus, the respondent Commission not only affirmed the disallowance of the amount of P52,908.00 but
likewise disallowed the claim for the RATA differential in the amount of P8,400.00, for being devoid of any legal
basis. Petitioner was, therefore, directed to refund the salary and RATA differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting capacity is entitled to the
difference in salary between his regular position and the higher position to which he is designated.
Petitioner avers that the respondent Commissions decision is probably not in accordance with applicable
decisions of the Supreme Court.[3] He cites the cases of Cui, et. al. vs. Ortiz, et. al.,[4] April 29, 1960; and,
Menzon vs. Petilla, May 20, 1991,[5] which laid down the rule that de facto officers are entitled to salary for
services actually rendered.Petitioner contends that he may be considered as a de facto officer by reason of
services rendered in favor of the Province of Batangas. He then posits the view that to disallow his
compensation and in the process allow the Province of Batangas to keep and enjoy the benefits derived from his
services actually rendered would be tantamount to deprivation of property without due process of law, and
impairment of obligation of contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the Solicitor General, maintains
that the decisions cited by petitioner do not find application in petitioners case. In the case of Menzon, what was
extended was an appointment to the vacant position of Vice-Governor. Here, what was extended to petitioner
was not an appointment but a mere designation. Thus, the nature of petitioners designation and in the absence
of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate
resolution from the Sangguniang Panlalawigan does not make the ruling on de facto officers applicable in this
case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he could still claim the salary and RATA differential
because he actually performed the functions pertaining to the office of Acting Assistant Provincial Treasurer and,
therefore, entitled to the salary and benefits attached to it despite the fact that the Governor of Batangas had
no authority to designate him to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code which
mandates that:
Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be appointed by the Secretary of Finance from
a list of at least three (3) ranking eligible recommendees of the governor or mayor, subject to civil service law,
rules and regulations.
xxxxxxxxx
In fact, the appointing officer is authorized by law to order the payment of compensation to any
government officer or employee designated or appointed to fill such vacant position, as provided under Section
2077 of the Revised Administrative Code which states that:
"Section 2077. Compensation for person appointed to temporary service.
xxxxxxxxx
In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a provincial office,
the President of the Philippines or officer having the power to fill such position may, in his discretion, order the
payment of compensation, or additional compensation, to any Government officer or employee designated or
appointed temporarily to fill the place, but the total compensation paid shall not exceed the salary authorized by
law for the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even designate
one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power
resides in the President of the Philippines or the Secretary of Finance.
Necessarily, petitioners designation as Assistant Provincial Treasurer for Administration by Governor
Mayo being defective, confers no right on the part of petitioner to claim the difference in the salaries and
allowances attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a designation not an
appointment. The respondent Commission clearly pointed out the difference between an appointment and
designation, thus:
There is a great difference between an appointment and designation. While an appointment is the selection by
the proper authority of an individual who is to exercise the powers and functions of a given office, designation
merely connotes an imposition of additional duties, usually by law, upon a person already in the public service
by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125).
Designation is simply the mere imposition of new or additional duties on the officer or employee to be performed
by him in a special manner. It does not entail payment of additional benefits or grant upon the person so
designated the right to claim the salary attached to the position (COA Decision No. 95-087 dated February 2,
1995). As such, there being no appointment issued, designation does not entitle the officer designated to
receive the salary of the position. For the legal basis of an employees right to claim the salary attached thereto
is a duly issued and approved appointment to the position (Opinion dated January 25, 1994 of the Office for
Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr., Designation). [6]
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the construction given by the agency or entity
charged with the enforcement of a statute should be given great weight and respect (In re Allen, 2 Phil. 630,
640), particularly so if such construction, as in the case at bar, has been uniform, and consistent, and has been
observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil.
414; Philippine Sugar Central vs. Collector of Customs, 51 Phil. 143). [7]
We see no justifiable reason to sustain petitioners argument that non-payment of his salary differential
and RATA would be a violation of his constitutional right against deprivation of property without due process of
law and the non-impairment of obligation of contracts clause in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the
appointment or designation thereof was made in accordance with law.Considering that petitioners designation
was without color of authority, the right to the salary or an allowance due from said office never existed. Stated
differently, in the absence of such right, there can be no violation of any constitutional right nor an impairment
of the obligation of contracts clause under the Constitution.
30
 The nature of petitioners designation and the absence of authority of the Governor to authorize the
payment of the additional salary and RATA without the appropriate resolution from the Sangguniang
Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. It is likewise defined as
one who is in possession of an office, and is discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere
volunteer.[8] Then a de facto officer is one who is in possession of an office in the open exercise of its functions
under color of an election or an appointment, even though such election or appointment may be irregular. [9]
Petitioner invokes in his favor the ruling in Menzon vs. Petilla,[10] that a de facto officer is entitled to
receive the salary for services actually rendered. However, his reliance on the Menzon case is
misplaced. In Menzon, what was extended was an appointment to thevacant position of Vice-Governor, in
petitioners case, he was designated. The appointment of Menzon had the color of validity. This Court said:
And finally, even granting that the President, acting through the Secretary of Local Government, possesses no
power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to
compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under a color of
a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of
the President, The Secretary of Local Government, after which he took his oath of office before Senator Alberto
Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the
appointment has the color of validity.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does not apply in petitioners case. In Cui, this
Court held:
Petitioners appointments on December 1 and 12, 1955 by the then mayor of the municipality were legal and in
order, the appointing mayor still in possession of his right to appoint. For such appointments to be complete, the
approval of the President of the Philippines is required. The law provides that pending approval of said
appointment by the President, the appointee may assume office and receive salary for services actually
rendered. Accordingly, therefore, in that duration until the appointment is finally acted upon favorably or
unfavorably, the appointees may be considered as de facto officers and entitled to salaries for services actually
rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July 8,
1994. Petitioners claim that the appointment retro-acts to his assumption of office is not confirmed by the
express phraseology of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATIONna may
katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE
HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa
petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing
authority.[12]
The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify petitioners
retention of the excess amount of P61,308.00, which corresponds to the amount disallowed and ordered
refunded by COA representing the salary and RATA in excess of what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
EN BANC
[G.R. No. L-13753. April 29, 1960.]
DOMINGO CUI, ET AL., Petitioners-Appellants, v. LUCIO ORTIZ, ETC., Respondents-Appellants.
Asst. Provincial Fiscal Ananias V. Maribao for Respondents-Appellants.
Jesus P. Garcia and Jose F. Remotigue for Petitioners-Appellants.
SYLLABUS
1. POLICE OFFICERS; INCOMPLETE APPOINTMENT; EFFECT OF RECALL AND WITHDRAWAL. The appointment
of a member of the municipal police force is incomplete until approved by the President. Until the appointment is
finally acted upon favorably or unfavorably, the appointee may be considered as a "de facto" officer and as such
is entitled to salary for services actually rendered. In the case at bar, the recall and withdrawal of the
appointments of the Chief of Police and the two patrolmen before their approval by the President, was proper,
and the mayor who withdrew the appointments cannot be charged with discriminate removal. Hence, although
they were entitled to salaries for services they rendered, they are not entitled to reinstatement.
DECISION
PARAS, C.J. :
The present appeal originated from a petition for a writ of mandamus to compel respondent mayor to sign the
payroll and approve the salaries accruing to petitioners, and to reinstate petitioners to their former positions.
Petitioners were civil service eligibles appointed by the then Mayor of Ronda, Cebu, Fortunato Villalon, on
December 1 and 12, 1955, petitioner Maribao as Chief of Police, and petitioners Cui, Yusores and Beynosa as
patrolmen of the said municipality. On January 16, 1956, the newly elected mayor, above respondent, served
notice to petitioners advising them of the termination of their service. In that very month, respondent appointed
a new Chief of Police and three new policemen to take the place of petitioners. He also sent a telegram to the
President of the Philippines withdrawing the appointments of petitioners. Petitioners after said date of January
16, 1956, continued in the service by reporting to the PC detachment at Damangug, Cebu.
The trial court rendered judgment ordering the incumbent mayor, respondent, to approve the payment of
petitioners salaries from January 16, 1956 to July 18, 1956, but kept silent as to the reinstatement, which the
court evidently did not deem proper.
Both petitioners and respondents appealed from the aforesaid decision, petitioners insisting in their
reinstatement and accrued salaries until reinstatement; respondents assigning as error the payment of salaries
from January 16 to July 18, 1956.
Section 14, Ex. Order No. 175 series of 1938 governs the appointments to the police force of the municipality. It
says:jgc:chanrobles.com.ph
"14. Hereafter, appointments to and promotion in the municipal, city and provincial police service shall be made
in accordance with Civil Service Rules and Regulations by the respective city or municipal mayor or governor,
with the approval of the President of the Philippines pending designation of the Department Head who is to
exercise supervision over local police force, except in cases of Chief of Police of Chartered cities which is
governed by special provisions of law. The selection of appointees shall be made whenever possible from the list
of eligibles in the corresponding city or municipality, if there are any, and in the negative case, from the general
list of eligibles in the province. Pending approval of the appointment by the President, the appointee may
assume office and receive salary for services actually rendered until the appointment is finally acted
upon."cralaw virtua1aw library
Petitioners appointments on December 1 and 12, 1955 by the then mayor of the municipality were legal and in
order, the appointing power still in possession of his right to appoint. For such appointments to be complete, the
approval of the President of the Philippines is required. The law provides that pending approval of said
appointment by the President, the appointee may assume office and receive salary for services actually
rendered. Accordingly therefore, in that duration until the appointment is finally acted upon favorably or
unfavorably, the appointees may be considered as "de facto" officers and entitled to salaries for services actually
rendered.
Petitioners appointments when respondent took office were not complete. Their recall and withdrawal having
been based on lack of residence in the municipality concerned is proper. Respondent cannot be charged with
discriminate removal of petitioners in view of their incomplete appointment to the office.
It is of record that the office of the President disapproved petitioner Maribaos appointment on July 18, 1956. It
is in fact liberal construction for this Court (as for the lower court) to consider said date of July 18, 1956 as the
final disapproval of appointments of the other petitioners.
Wherefore, the decision appealed from is hereby affirmed without costs. So ordered.
Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera and Gutierrez
David, JJ., concur.
31

EN BANC
[G.R. No. 103903. September 11, 1992.]
MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G. TIOZON, Petitioners, v. RAUL. A.
DAZA, HON. CAMILO SABIO, as Secretary of the House of Representatives, MR. JOSE MARIA TUAO,
as Officer-in-Charge, Gen. Services Division of the House of Representatives, MRS. ROSALINDA G.
MEDINA, as Chief Accountant of the House of Representatives, and the HON. COMMISSION ON
AUDIT, Respondents.
Luis H. Dado, for Petitioners.
Sevilla, Hechanova, Ballicud & Associates for respondent Raul Daza.
SYLLABUS
1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; HOUSE ELECTORAL TRIBUNAL; SHALL BE THE SOLE JUDGE OF
ALL CONTESTS RELATING TO THE ELECTION, RETURNS AND QUALIFICATIONS OF ITS MEMBERS. Under
Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge
of all contests relating to the election, returns and qualification of its members. Since petitioners challenge the
qualifications of Congressman Daza, the appropriate remedy should have been to file a petition to cancel
respondent Dazas certificate of candidacy before the election or a quo warranto case with the House Electoral
Tribunal within ten (10) days after Dazas proclamation.
2. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; WRIT OF PROHIBITION; NOT INTENDED TO PROVIDE FOR ACTS
ALREADY CONSUMMATED. A writ of prohibition can no longer be issued against respondent since his term has
already expired. A writ of prohibition is not intended to provide for acts already consummated.
3. ADMINISTRATIVE LAW; PUBLIC OFFICERS; DE FACTO OFFICERS; ENTITLED TO EMOLUMENT FOR ACTUAL
SERVICES RENDERED. As a de facto public officer, respondent cannot be made to reimburse funds disbursed
during his term of office because his acts are as valid as those of a de jure officer. Moreover, as a de facto
officer, he is entitled to emoluments for actual services rendered.
RESOLUTION
ROMERO, J.:
On February 18, 1992, Petitioners, residents of the second Congressional District of Northern Samar filed the
instant petition for prohibition seeking to disqualify respondent Raul Daza, then incumbent congressman of the
same congressional district, from continuing to exercise the functions of his office, on the ground that the latter
is a greencard holder and a lawful permanent resident of the United States since October 16, 1974.
Petitioners allege that Hr. Daza has not, by any act or declaration, renounced his status as permanent resident,
thereby violating Section 68 of Batas Pambansa Bilang 881 (Omnibus Election Code) and Section 18, Article XI
of the 1987 Constitution.chanrobles.com:cralaw:red
On February 25, 1992, we required respondents to comment. On March 13, 1992, Respondents, through the
Solicitor General, filed a motion for extension of time to file their comment for a period of thirty days or until
April 12, 1992. Reacting to the said motion, petitioners on March 30, 1992, manifested their opposition to the
30-day extension of time stating that such extension was excessive and prayed that respondent instead be
granted only 10 days to file their comment. On May 5, 1992, the Court noted the manifestation and opposition.
On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a petition before the
COMELEC to disqualify respondent Daza from running in the recent May 11, 1992 elections on the basis of
Section 68 of the Omnibus Election Code (SPC 92-084) and that the instant petition is concerned with the
unlawful assumption of office by respondent Daza from June 30, 1987 until June 30, 1992. 1
On April 10, 1992, respondent Congressman Daza filed his comment denying the fact that he is a permanent
resident of the United States; that although he was accorded a permanent residency status on October 8, 1980
as evidenced by a letter order of the District Director, US Immigration and Naturalization Service, Los Angeles,
U.S.A., 2 he had long waived his status when he returned to the Philippines on August 12, 1985. 3
On April 13, 1992, public respondent Camilo Sabio, Secretary General of the House of Representatives, Mr. Jose
Mari Tuao, as OIC of the General Services Division, Mrs. Rosalinda G. Medina, as Chief Accountant of the House
of Representatives and Commission on Audit, filed their comment. They contend that if indeed Congressman
Daza is a greencard holder and a permanent resident of the United States of America, then he should be
removed from his position as Congressman. However, they opined that only Congressman Daza can best explain
his true and correct status as a greencard holder. Until he files his comment to the petition, petitioners prayer
for temporary restraining order and/or writ of preliminary injunction should not be granted. 4
Eight (8) days later, respondent Daza, reacting to the petition before the COMELEC (SPC 92-084) and
hypothesizing that the case before the COMELEC would become moot should this Court find that his permanent
resident status ceased when he was granted a US non-immigrant visa, asked this Court to direct the COMELEC
to dismiss SPC No. 92-084. 5
On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the petition and
required the parties to file their respective memoranda.chanrobles virtual lawlibrary
The central issue to be resolved in this case is whether or not respondent Daza should be disqualified as a
member of the House of Representatives for violation of Section 68 of the Omnibus Election Code.
Petitioners insist that Congressman Daza should be disqualified from exercising the functions of his office being
a permanent resident alien of the United States at the time when he filed his certificate of candidacy for the May
11, 1987 Elections. To buttress their contention, petitioners cite the recent case of Caasi v. Court of Appeals. 6
In support of their charge that respondent Daza is a greencard holder, petitioners presented to us a letter from
the United States Department of Justice, Immigration and Naturalization Service (INS) which reads: 7
File No. A20 968 618
Date: Nov. 5, 1991
LOS914732
Geraghty, OLoughlin and Kenney
Attn: David C. Hutchinson
386 N. Wasbasha Street
St. Paul, Minn. 55102-1308
SUBJECT:chanrob1es virtual 1aw library
Daza, Raul A.
Your request was received in this office on _________; please note the paragraph(s) checked below:chanrob1es
virtual 1aw library
x x x
10. [XX] Other remarks:chanrob1es virtual 1aw library
Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent Resident on Oct.
16, 1974. As far as we know subject (sic) still has his greencard. No he has not applied for citizenship.
Sincerely, (sic)
Sgd.
District Director
Form G-343 (Rev. 8-20-82)N
We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is evident
from the manifestation filed by petitioners dated April 6, 1992 8 that they seek to unseat respondent from his
position as Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30,
1992. Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of
Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns and qualification of its members. Since petitioners challenge the qualifications of
Congressman Daza, the appropriate remedy should have been to file a petition to cancel respondent Dazas
certificate of candidacy before the election 9 or a quo warranto case with the House Electoral Tribunal within ten
(10) days after Dazas proclamation. 10 Third, a writ of prohibition can no longer be issued against respondent
since his term has already expired. A writ of prohibition is not intended to provide for acts already
32
consummated. 11 Fourth, as a de facto public officer, 12 respondent cannot be made to reimburse funds
disbursed during his term of office because his acts are as valid as those of a de jure officer. Moreover, as a de
facto officer, he is entitled to emoluments for actual services rendered. 13
ACCORDINGLY, the Court Resolved to DISMISS the instant petition for being MOOT and ACADEMIC.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 205033 June 18, 2013
ROMEO G. JALOSJOS, Petitioner,
vs.
THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-SALAZAR, ROEL B. NATIVIDAD,
ARTURO N. ONRUBIA, AHMAD NARZAD K. SAMPANG, JOSE L. LOBREGAT, ADELANTE ZAMBOANGA
PARTY, AND ELBERT C. ATILANO, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for certiorari 1 file under Rule 64 in relation to Rule 65 of the Rules of Court is the
Commission on Elections' (COMELEC) En Bane Resolution No. 9613 2 dated January 15, 2013, ordering the denial
of due course to and/or cancellation of petitioner Romeo G. Jalosjos' certificate of candidacy (CoC) as a
mayoralty candidate for Zamboanga City.
The Facts
On November 16, 2001, the Court promulgated its Decision in G.R. Nos. 132875-76, entitled "People of the
Philippines v. Romeo G. Jalosjos," convicting petitioner by final judgment of two (2) counts of statutory rape and
six (6) counts of acts of lasciviousness.4 Consequently, he was sentenced to suffer the principal penalties of
reclusion perpetua and reclusion temporal 5 for each count, respectively, which carried the accessory penalty of
perpetual absolute disqualification pursuant to Article 41 of the Revised Penal Code (RPC). 6 On April 30, 2007,
then President Gloria Macapagal Arroyo issued an order commuting his prison term to sixteen (16) years, three
(3) months and three (3) days (Order of Commutation). After serving the same, he was issued a Certificate of
Discharge From Prison on March 18, 2009.7
On April 26, 2012,8 petitioner applied to register as a voter in Zamboanga City. However, because of his
previous conviction, his application was denied by the Acting City Election Officer of the Election Registration
Board (ERB), prompting him to file a Petition for Inclusion in the Permanent List of Voters (Petition for Inclusion)
before the Municipal Trial Court in Cities of Zamboanga City, Branch 1 (MTCC). 9 Pending resolution of the same,
he filed a CoC10 on October 5, 2012, seeking to run as mayor for Zamboanga City in the upcoming local
elections scheduled on May 13, 2013 (May 2013 Elections). In his CoC, petitioner stated, inter alia, that he is
eligible for the said office and that he is a registered voter of Barangay Tetuan, Zamboanga City.
On October 18, 2012, the MTCC denied his Petition for Inclusion on account of his perpetual absolute
11
disqualification which in effect, deprived him of the right to vote in any election. Such denial was affirmed by the
Regional Trial Court of Zamboanga City, Branch 14 (RTC) in its October 31, 2012 Order 12 which, pursuant to
Section 13813 of Batas Pambansa Bilang 881, as amended, otherwise known as the "Omnibus Election Code"
(OEC), was immediately final and executory.
Meanwhile, five (5) petitions were lodged before the COMELECs First and Second Divisions (COMELEC
Divisions), praying for the denial of due course to and/or cancellation of petitioners CoC. Pending resolution, the
COMELEC En Banc issued motu proprio Resolution No. 9613 14 on January 15, 2013, resolving "to CANCEL and
DENY due course the Certificate of Candidacy filed by Romeo G. Jalosjos as Mayor of Zamboanga City in the May
13, 2013 National and Local Elections" due to his perpetual absolute disqualification as well as his failure to
comply with the voter registration requirement. As basis, the COMELEC En Banc relied on the Courts
pronouncement in the consolidated cases of Dominador Jalosjos, Jr. v. COMELEC and Agapito Cardino v.
COMELEC15 (Jalosjos, Jr. and Cardino).
Hence, the instant petition.
Issues Before the Court
Submitted for the Courts determination are the following issues: (a) whether the COMELEC En Banc acted
beyond its jurisdiction when it issued motu proprio Resolution No. 9613 and in so doing, violated petitioners
right to due process; and (b) whether petitioners perpetual absolute disqualification to run for elective office
had already been removed by Section 40(a) of Republic Act No. 7160, otherwise known as the "Local
Government Code of 1991" (LGC).
The Courts Ruling
The petition is bereft of merit.
At the outset, the Court observes that the controversy in this case had already been mooted by the exclusion of
petitioner in the May 2013 Elections. Nevertheless, in view of the doctrinal value of the issues raised herein,
which may serve to guide both the bench and the bar in the future, the Court takes this opportunity to discuss
on the same.
A. Nature and validity of motu
proprio issuance of Resolution No.
9613.
Petitioner claims that the COMELEC En Banc usurped the COMELEC Divisions jurisdiction by cancelling motu
proprio petitioners CoC through Resolution No. 9613, contrary to Section 3, Article IX-C of the 1987 Philippine
Constitution (Constitution) which reads:
SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall
be decided by the Commission en banc. (Emphasis and underscoring supplied)
Concomitantly, he also claims that his right to procedural due process had been violated by the aforementioned
issuance.
The Court is not persuaded.
The above-cited constitutional provision requiring a motion for reconsideration before the COMELEC En Banc
may take action is confined only to cases where the COMELEC exercises its quasi-judicial power. It finds no
application, however, in matters concerning the COMELECs exercise of administrative functions. The distinction
between the two is well-defined. As illumined in Villarosa v. COMELEC: 16
The term administrative connotes, or pertains, to administration, especially management, as by managing or
conducting, directing or superintending, the execution, application, or conduct of persons or things. It does not
entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution
thereon. While a quasi-judicial function is a term which applies to the action, discretion, etc., of public
administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold
hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a
judicial nature. (Emphasis and underscoring supplied)
Crucial therefore to the present disquisition is the determination of the nature of the power exercised by the
COMELEC En Banc when it promulgated Resolution No. 9613.
33
The foregoing matter is not without established precedent. In Jalosjos, Jr. and Cardino, the Court held that the B. Petitioners right to run for
COMELECs denial of due course to and/or cancellation of a CoC in view of a candidates disqualification to run elective office.
for elective office based on a final conviction is subsumed under its mandate to enforce and administer all laws
relating to the conduct of elections. Accordingly, in such a situation, it is the COMELECs duty to cancel motu
proprio the candidates CoC, notwithstanding the absence of any petition initiating a quasi-judicial proceeding for It is petitioners submission that Article 30 of the RPC was partially amended by Section 40(a) of the LGC and
the resolution of the same. Thus, the Court stated: 17 thus, claims that his perpetual absolute disqualification had already been removed.

Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 The argument is untenable.
of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of
anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue
of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the Well-established is the rule that every new statute should be construed in connection with those already existing
disqualification of the convict from running for public office. The law itself bars the convict from running for in relation to the same subject matter and all should be made to harmonize and stand together, if they can be
public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court done by any fair and reasonable interpretation.25
is addressed not only to the Executive branch, but also to other government agencies tasked to implement the
final judgment under the law.
On the one hand, Section 40(a) of the LGC, applicable as it is to local elective candidates, provides:

Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is
assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws
and regulations relative to the conduct of an election." The disqualification of a convict to run for public office
under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
and administration of "all laws" relating to the conduct of elections. one (1) year or more of imprisonment, within two (2) years after serving sentence; (Emphasis and underscoring
supplied)

To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering
from perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. And on the other hand, Article 30 of the RPC reads:
Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as mayor. The COMELEC
will be grossly remiss in its constitutional duty to "enforce and administer all laws" relating to the conduct of
elections if it does not motu proprio bar from running for public office those suffering from perpetual special ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The penalties of perpetual
disqualification by virtue of a final judgment. (Emphasis and underscoring supplied) or temporary absolute disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which the offender may have held, even if
In Aratea v. COMELEC (Aratea),18 the Court similarly pronounced that the disqualification of a convict to run for
public office, as affirmed by final judgment of a competent court, is part of the enforcement and administration conferred by popular election.
of all laws relating to the conduct of elections.19
2. The deprivation of the right to vote in any election for any popular office or to be elected to such
office.
Applying these principles to the case at bar, it is clear that the COMELEC En Banc did not exercise its quasi-
judicial functions when it issued Resolution No. 9613 as it did not assume jurisdiction over any pending petition
or resolve any election case before it or any of its divisions. Rather, it merely performed its duty to enforce and
3. The disqualification for the offices or public employments and for the exercise of any of the rights
administer election laws in cancelling petitioners CoC on the basis of his perpetual absolute disqualification, the
mentioned.
fact of which had already been established by his final conviction. In this regard, the COMELEC En Banc was
exercising its administrative functions, dispensing with the need for a motion for reconsideration of a division
ruling under Section 3, Article IX-C of the Constitution, the same being required only in quasi-judicial
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of
proceedings.
this Article shall last during the term of the sentence.

Lest it be misunderstood, while the denial of due course to and/or cancellation of ones CoC generally
4. The loss of all rights to retirement pay or other pension for any office formerly held. (Emphasis
necessitates the exercise of the COMELECs quasi-judicial functions commenced through a petition based on
and underscoring supplied)
either Sections 1220 or 7821 of the OEC, or Section 4022 of the LGC, when the grounds therefor are rendered
conclusive on account of final and executory judgments as when a candidates disqualification to run for public
office is based on a final conviction such exercise falls within the COMELECs administrative functions, as in Keeping with the above-mentioned statutory construction principle, the Court observes that the conflict between
this case. these provisions of law may be properly reconciled. In particular, while Section 40(a) of the LGC allows a prior
convict to run for local elective office after the lapse of two (2) years from the time he serves his sentence, the
said provision should not be deemed to cover cases wherein the law 26 imposes a penalty, either as principal or
In this light, there is also no violation of procedural due process since the COMELEC En Banc would be acting in
accessory,27 which has the effect of disqualifying the convict to run for elective office. An example of this would
a purely administrative manner. Administrative power is concerned with the work of applying policies and
be Article 41 of the RPC, which imposes the penalty of perpetual 28 absolute29 disqualification as an accessory to
enforcing orders as determined by proper governmental organs.23 As petitioners disqualification to run for public
the principal penalties of reclusion perpetua and reclusion temporal:
office had already been settled in a previous case and now stands beyond dispute, it is incumbent upon the
COMELEC En Banc to cancel his CoC as a matter of course, else it be remiss in fulfilling its duty to enforce and
administer all laws and regulations relative to the conduct of an election. ART. 41. Reclusion perpetua and reclusion temporal Their accessory penalties. - The penalties of reclusion
perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even
Equally compelling is the fact that the denial of petitioners Petition for Inclusion as a registered voter in
though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Zamboanga City had already attained finality by virtue of the RTCs Order dated October 31, 2012. In this
(Emphasis and underscoring supplied)
accord, petitioners non-compliance with the voter registration requirement under Section 39(a) of the LGC 24 is
already beyond question and likewise provides a sufficient ground for the cancellation of his CoC altogether.
In this relation, Article 30 of the RPC, as earlier cited, provides that the penalty of perpetual absolute
disqualification has the effect of depriving the convicted felon of the privilege to run for elective office. To note,
this penalty, as well as other penalties of similar import, is based on the presumptive rule that one who is

34
rendered infamous by conviction of a felony, or other base offense indicative of moral turpitude, is unfit to hold
public office,30 as the same partakes of a privilege which the State grants only to such classes of persons which
are most likely to exercise it for the common good.31
Pertinently, it is observed that the import of Article 41 in relation to Article 30 of the RPC is more direct and
specific in nature insofar as it deprives the candidate to run for elective office due to his conviction as
compared to Section 40(a) of the LGC which broadly speaks of offenses involving moral turpitude and those
punishable by one (1) year or more of imprisonment without any consideration of certain disqualifying effects to
ones right to suffrage. Accordingly, Section 40(a) of the LGC should be considered as a law of general
application and therefore, must yield to the more definitive RPC provisions in line with the principle of lex
specialis derogat generali general legislation must give way to special legislation on the same subject, and
generally is so interpreted as to embrace only cases in which the special provisions are not applicable. In other
words, where two statutes are of equal theoretical application to a particular case, the one specially designed
therefor should prevail.32
In the present case, petitioner was sentenced to suffer the principal penalties of reclusion perpetua and
reclusion temporal which, pursuant to Article 41 of the RPC, carried with it the accessory penalty of perpetual
absolute disqualification and in turn, pursuant to Article 30 of the RPC, disqualified him to run for elective office.
As discussed, Section 40(a) of the LGC would not apply to cases wherein a penal provision such as Article 41
in this case directly and specifically prohibits the convict from running for elective office. Hence, despite the
lapse of two (2) years from petitioners service of his commuted prison term, he remains bound to suffer the
accessory penalty of perpetual absolute disqualification which consequently, disqualifies him to run as mayor for
Zamboanga City.
Notably, Article 41 of the RPC expressly states that one who is previously convicted of a crime punishable by
reclusion perpetua or reclusion temporal continues to suffer the accessory penalty of perpetual absolute
disqualification even though pardoned as to the principal penalty, unless the said accessory penalty shall have
been expressly remitted in the pardon.33 In this case, the same accessory penalty had not been expressly
remitted in the Order of Commutation or by any subsequent pardon and as such, petitioners disqualification to
run for elective office is deemed to subsist.
Further, it is well to note that the use of the word "perpetual" in the aforementioned accessory penalty connotes
a lifetime restriction and in this respect, does not depend on the length of the prison term which is imposed as
its principal penalty. Instructive on this point is the Courts ruling in Lacuna v. Abes, 34 where the court explained
the meaning of the term "perpetual" as applied to the penalty of disqualification to run for public office:
The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the
right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article
30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for
the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be
elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts
during the term of the sentence. (Emphasis and underscoring supplied)
Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of Aratea,35 Jalosjos, Jr. and
Cardino,36held:
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of
the right to vote or to be elected to or hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the
principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states
that "the offender shall not be permitted to hold any public office during the period of his [perpetual special]
disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office
that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and
the convict becomes ineligible to run for any elective public office perpetually. (Emphasis underscoring supplied)
All told, applying the established principles of statutory construction, and more significantly, considering the
higher interests of preserving the sanctity of our elections, the Court holds that Section 40(a) of the LGC has not
removed the penalty of perpetual absolute disqualification which petitioner continues to suffer.1wphi1 Thereby,
he remains disqualified to run for any elective office pursuant to Article 30 of the RPC.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24761 September 7, 1965
LEON G. MAQUERA, petitioner,
vs.
JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective capacities as
Chairman and Members of the Commission on Elections, and the COMMISSION ON
ELECTIONS, respondents.
---------------------------
G.R. No. L-24828 September 7, 1965
FELIPE N. AUREA and MELECIO MALABANAN, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Leon G. Maquera in his own behalf as petitioner.
Ramon Barrios for respondents.
RESOLUTION
PER CURIAM:
Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R. No. L-
24828, "Felipe N. Aurea and Melecio Malabanan vs. Commission on Elections," and it appearing:
1. That Republic Act No. 4421 requires "all candidates for national, provincial, city and municipal
offices" to post a surety bond equivalent to the one-year salary or emoluments of the position to
which he is a candidate, which bond shall be forfeited in favor of the national, provincial, city or
municipal government concerned if the candidate, except when declared winner, fails to obtain at
least 10% of the votes cast for the office to which he has filed his certificate of candidacy, there
being not more than four (4) candidates for the same office;"
2. That, in compliance with said Republic Act No. 4421, the Commission on Elections had, on July
20, 1965, decided to require all candidates for President, Vice-President, Senator and Member of the
House of Representatives to file a surety bond, by a bonding company of good reputation,
acceptable to the Commission, in the sums of P60,000.00 and P40,000.00, for President and Vice-
President, respectively, and P32,000.00 for Senator and Member of the House of Representatives;
3. That, in consequence of said Republic Act No. 4421 and the aforementioned action of the
Commission on Elections, every candidate has to pay the premium charged by bonding companies,
and, to offer thereto, either his own properties, worth, at least, the amount of the surety bond, or
properties of the same worth, belonging to other persons willing to accommodate him, by way of
counter-bond in favor of said bonding companies;
4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify from running
for President, Vice-President, Senator or Member of the House of Representatives those persons
who, although having the qualifications prescribed by the Constitution therefore, cannot file the
surety bond aforementioned, owing to failure to pay the premium charged by the bonding company
and/or lack of the property necessary for said counter-bond;
5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for provincial, city or
municipal elective offices, persons who, although possessing the qualifications prescribed by law
therefor, cannot pay said premium and/or do not have the property essential for the aforementioned
counter-bond;
6. That said Republic Act No. 4421 has, accordingly, the effect of imposing property qualifications in
order that a person could run for a public office and that the people could validly vote for him;
35
 7. That said property qualifications are inconsistent with the nature and essence of the Republican
system ordained in our Constitution and the principle of social justice underlying the same, for said
political system is premised upon the tenet that sovereignty resides in the people and all
government authority emanates from them, and this, in turn, implies necessarily that the right to
vote and to be voted for shall not be dependent upon the wealth of the individual concerned,
whereas social justice presupposes equal opportunity for all, rich and poor alike, and that,
accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public
office; and
8. That the bond required in Republic Act No. 4421 and the confiscation of said bond are not
predicated upon the necessity of defraying certain expenses or of compensating services given in
connection with elections, and is, therefore, arbitrary and oppressive.
The Court RESOLVED, without prejudice to rendering an extended decision, to declare that said Republic Act No.
4421 is unconstitutional and hence null and void, and, hence, to enjoin respondents herein, as well as their
representatives and agents, from enforcing and/or implementing said constitutional enactment.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.
FERNAN, C.J.:
The principal question raised in this petition for review is whether or not a public officer, who has been granted
an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a
new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then
assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of
public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day
of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay
a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of
P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed
a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by
then President Marcos absolute pardon which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her
former post as assistant city treasurer since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the
Local Government Code transferring the power of appointment of treasurers from the city governments to the
said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be
reinstated to her position without the necessity of a new appointment not earlier than the date she was
extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which
the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the
litigation, be satisfied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the
full pardon bestowed on her has wiped out the crime which implies that her service in the government has never
been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive
suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and
that she should not be required to pay the proportionate share of the amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and
action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:
We disagree with both the Ministry of Finance and the petitioner because, as borne out
by the records, petitioner was convicted of the crime for which she was accused. In line
with the government's crusade to restore absolute honesty in public service, this Office
adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the
Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985,
that acquittal, not absolute pardon, of a former public officer is the only ground for
reinstatement to his former position and entitlement to payment of his salaries, benefits
and emoluments due to him during the period of his suspension pendente lite.
In fact, in such a situation, the former public official must secure a reappointment before
he can reassume his former position. ...
Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a
pardon shall in no case exempt the culprit from payment of the civil indemnity imposed
upon him by the sentence." (Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled
to an automatic reinstatement on the basis of the absolute pardon granted her but must
secure an appointment to her former position and that, notwithstanding said absolute
pardon, she is liable for the civil liability concomitant to her previous conviction. 3
Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf
We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that
she was extended executive clemency while her conviction was still pending appeal in this Court. There having
been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to
have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory
penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More
importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no
offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly
dismissed the same. 4
It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of
public documents and sentenced to imprisonment of four years, two months and one day of prision
correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision
mayor carries the accessory penalties of temporary absolute disqualification and perpetual special
disqualification from the right of suffrage, enforceable during the term of the principal penalty. 5 Temporary
absolute disqualification bars the convict from public office or employment, such disqualification to last during
the term of the sentence. 6 Even if the offender be pardoned, as to the principal penalty, the accessory penalties
remain unless the same have been expressly remitted by the pardon. 7 The penalty of prision
correccional carries, as one of its accessory penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and
its legal consequences. This is not totally unexpected considering that the authorities on the subject have not
been wholly consistent particularly in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But
Philippine jurisprudence on the subject has been largely influenced by American case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws,
which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has
committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose
benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of
which delivery is essential, and delivery is not complete without acceptance." 8-a
At the time the antecedents of the present case took place, the pardoning power was governed by the 1973
Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:
The President may, except in cases of impeachment, grant reprieves, commutations and
pardons, remit fines and forfeitures, and with the concurrence of the Batasang
Pambansa, grant amnesty. 9
36
The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction,
implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was
granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987
Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in
the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the
result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal
and her unreversed conviction by the Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in
relation to the decisive question of whether or not the plenary pardon had the effect of removing the
disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the various
consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941,
December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be
restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but
removes all disabilities resulting from the conviction. ... (W)e are of the opinion that the better view in the light
of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief
Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law
to the extent of relieving completely the party ... concerned from the accessory and resultant disabilities of
criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable
application of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations to this day continue to
hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later
American decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the guilt of the
offender; and when the pardon is full, it releases the punishment and blots out of
existence the guilt, so that in the eye of the law the offender is as innocent as if he had
never committed the offense. If granted before conviction, it prevents any of the
penalties and disabilities, consequent upon conviction, from attaching; if granted after
conviction, it removes the penalties and disabilities and restores him to all his civil
rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 14
Such generalities have not been universally accepted, recognized or approved. 15
The modern trend of
authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme
statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach.
While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law
the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The
very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of
the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves
forgiveness and not forgetfulness. 16
The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving
the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities
based on the finding of guilt. 17 But it relieves him from nothing more. "To say, however, that the offender is a
"new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the
crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may
be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society
than one never found guilty of crime, though it places no restraints upon him following his conviction." 18
A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief for
what has been suffered by the offender. It does not impose upon the government any obligation to make
reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that
which has been done or suffered while they were in force is presumed to have been rightfully done and justly
suffered, and no satisfaction for it can be required." 20 This would explain why petitioner, though pardoned,
cannot be entitled to receive backpay for lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of
the crime for which she was convicted. In the case of State v. Hazzard, 21 we find this strong observation: "To
assume that all or even a major number of pardons are issued because of innocence of the recipients is not only
to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of
forgiveness implies the commission of wrong, and that wrong has been established by the most complete
method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant
upon a conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22
In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may
remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being
a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious
belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he
were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can
produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has
constantly maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public
manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their
subsequent dealings with the actor." 23
Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him
to all his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring
back lost reputation for honesty, integrity and fair dealing. 24 This must be constantly kept in mind lest we lose
track of the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with
the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility
for appointment to that office. 26
The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and
benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic
reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa
would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from
refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by
reason of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office
forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public
documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by
her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment
to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability
for the public post, the facts constituting her offense must be and should be evaluated and taken into account to
determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon
granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot
go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual
procedure required for a new appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the
sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It
subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty
or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized
in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor
and debtor, compensation and novation. 27
WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated
April 15, 1986, is AFFIRMED. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
37

G.R. No. 75025 September 14, 1993
VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND
TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE
NO. IV, respondents.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.
BELLOSILLO, J.:
Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent
Commission on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service
pursuant to an executive clemency. He prays for the extraordinary remedy of mandamus against public
respondents to enforce his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena
City. On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in
accordance with the decision of the then Ministry of Public Works, Transportation and Communications in Adm.
Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-
Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision.
Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed
against petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January
1980, the trial court rendered its decision acquitting petitioner of the offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be
reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the
Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and
Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus,
Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the
date of his dismissal from the service. This was denied by the COA in its 5th Indorsement dated 12 October
1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries
and that he has not been reinstated in the service.
It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether
petitioner's reinstatement was to the same position of Supervising Lineman. 1
Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his
dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement
dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the
payment of back wages and that he had not rendered service during the period of his claim.
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986,
Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to
legal and constitutional constraint,"2 holding that this Court is the proper forum to take cognizance of the appeal
on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art.
IX-[A], Sec. 7, of the 1987 Constitution).
Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages
after having been reinstated pursuant to the grant of executive clemency.
In his comment to the petition, the Solicitor General recommends that the petition be given due course and the
petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor
General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is
to accord full justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's
acquittal in the criminal case did not necessarily free him from administrative liability; (b) petitioners
unexplained failure to appeal the decision in the administrative case was tantamount to a waiver or renunciation
of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of
reinstatement only since it was silent on the matter of back wages; (d) the award of back wages is allowed only
if the respondent is exonerated from the administrative charge that his suspension or dismissal is declared
illegal or unjustified by the court; and, (e) petitioner did not render any service during the period before his
reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an
act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some
department or functionary of a government, a country would be most imperfect and deficient in its political
morality and in that attribute of Deity whose judgments are always tempered with money. 3
Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency
under the following circumstances:
Except in cases of impeachment or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all
the Members of the Congress.4
From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in
the instant case partakes of the nature of an executive pardon. A reading of Resolution No. 1800 partly quoted
hereunder is enlightening:
In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications
interposed no objection to the petition, while the Minister of Transportation and
Communications, in his 4th Indorsement dated November 17, 1980, favorably
recommended the grant of executive clemency to petitioner for the reason that "while it
is a rule that an administrative case is separate and distinct from a criminal case and an
acquittal in the latter case dos not ipso facto result in the exoneration in the former
case, yet an exception could arise if the basis for the acquittal was the innocence of the
accused as in the case of petitioner Garcia.
Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil
service Commission recommends the grant of executive clemency to petitioner in view of
the findings of the court that
instead of coming forward to the defense of the accused who
actually was authorized to uproot or recover the poles in
question and of commending the latter for his high sense of
responsibility in preventing losses to the government, said high
officials had even the temerity to disown and deny the authority
they gave to the accused resulting in his separation from the
service and having him all alone in defending himself against the
accusation of the very government he tried to protect.
After a careful study, this Office is inclined to grant executive clemency to petitioner in
the light of this decision of the court acquitting him of the crime of qualified theft which
was based on the same acts obtaining in Administrative Case No. 975 against him,
coupled with the favorable recommendation of the Minister of Transportation and
Communications and the Civil Service Commission.
In view of the foregoing, petitioner Vicente Garcia is hereby granted executive
clemency.5
38
Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted.
In Monsanto v. Factoran,6 we have firmly established the general rule that while a pardon has generally been
regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as
though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is
forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the
crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and
restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost
reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to
public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally
result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back
wages.
But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and
makes him a new man and as innocent; as if he had not been found guilty of the offense charged.7 When a
person is given pardon because he did not truly commit the offense, the pardon relieves the party from all
punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and
unstained character prior to the finding of guilt.
In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from
the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very
same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of
proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside
from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as
a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to
him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and
Communications and the Civil Service Commission.
The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the
administrative decision which found him guilty of dishonesty and ordered his separation from the service. This
can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and
thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that
petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso
facto upon the issuance of the clemency.
Petitioner's automatic reinstatement to the government service entitles him to back wages. 8 This is meant to
afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a
result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive
clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have
been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against
them.9 There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back
wages.
Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that
carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative
decision of a branch of the Executive Department over which the President, as its head, has the power of
control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his duties and to the judgment of the
former for the latter." 10 In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised
his power of control and set aside the decision of the Ministry of Transportation and Communications. The
clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the
petitioner from the service being null and void, he is thus entitled to back wages.
After having been declared innocent of the crime of qualified theft, which also served as basis for the
administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he
is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back
wages. 11
Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally
dismissed government employee who has been ordered reinstated. 12 The cases heretofore decided by this Court
show that petitioners therein were employees of local governments who were removed from office by their local
officials. The reasons given for their removal were abolition of office or position, reduction of work force, or lack
of funds on the part of the local governments concerned, which reasons were found by this Court to be either
devoid of factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and justified.
In contrast, the case before us is different, involving as it does circumstances that impel us to deviate from the
general rule previously laid down on the recovery of back wages for five (15) years. Petitioner's reinstatement in
the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack
of sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense
charged. Verily, law, equity and justice dictate that petitioner be afforded compassion for the embarrassment,
humiliation and, above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot
help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and reputation,
for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds
it fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12
March 1984 when he was reinstated. The payment shall be without deduction or qualification.
WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is
REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the
Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional
Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full
amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of
Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO
FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as
Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN N. DRILON, as
Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO
FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science
and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ,
as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as
Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the
Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as
both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C.
Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials of the Executive Department may,
in addition to his primary position, hold not more than two positions in the government and
government corporations and receive the corresponding compensation therefor; Provided, that this
limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which
the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official
of the Executive Department holds more positions than what is allowed in Section 1 hereof, they
(sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but
in no case shall any official hold more than two positions other than his primary position.
39
 Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should either
be a secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition to their
primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the
1987 Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during
their tenure. They shall not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the
Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in
G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their tenure.
In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft
League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition
and mandamus, as well as a temporary restraining order directing public respondents therein to cease and
desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized
by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges
and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse
or refund any and all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted
"absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez,
construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987
Opinion No. 73, series of 1987,5 declaring that Cabinet members, their deputies (undersecretaries) and assistant
secretaries may hold other public office, including membership in the boards of government corporations: (a)
when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-
officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion,
the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987:
promulgated Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284
as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section
7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and
separate group of public officers one, the President and her official family, and the other, public servants in
general allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank
assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the
Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by
example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further
elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of
1988,10 being the first official construction and interpretation by the Secretary of Justice of Section 13, Article
VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of appointments or
designations of an appointive executive official to positions other than his primary position, is "reasonably valid
and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73,
series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and
DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-
officio positions or to positions which, although not so designated as ex-officio are allowed by the primary
functions of the public official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal
submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution.
According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are those provided in the
Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3,
par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil
Service Commission applies to officers and employees of the Civil Service in general and that said exceptions do
not apply and cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-
President, Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and
their deputies or assistants from holding dual or multiple positions in the Government admits of certain
exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of the
exception. Petitioners insist that because of the phrase "unless otherwise provided in this Constitution" used in
Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case of the
Vice-President being allowed to become a Member of the Cabinet under the second paragraph of Section 3,
Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar Council
under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise
provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB
insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution
insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for
appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew,
thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration.
Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will
be examined in the light of the history of the times, and the condition and circumstances under which the
Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to
enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing
bodies or boards of various government agencies and instrumentalities, including government-owned and
controlled corporations, became prevalent during the time legislative powers in this country were exercised by
former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-
created agencies, instrumentalities and government-owned and controlled corporations created by presidential
decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems,
allowances and other perquisites of office. Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous
public officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of
multiple offices in government was strongly denounced on the floor of the Batasang Pambansa. 12 This
condemnation came in reaction to the published report of the Commission on Audit, entitled "1983 Summary
Annual Audit Report on: Government-Owned and Controlled Corporations, Self-Governing Boards and
Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of Government-
Owned and Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government service were the
data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29)
40
governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A.
Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of
fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each;
Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Pea of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime.
It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the
1986 Constitutional Commission, convened as it was after the people successfully unseated former President
Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to
remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. In
fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the
strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given
by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government
and collecting unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both elective
and appointive public officials, the Constitutional Commission should see it fit to formulate another provision,
Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies
and assistants from holding any other office or employment during their tenure, unless otherwise provided in
the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question,
the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official
family in so far as holding other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold
any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the
armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the
Government,including government-owned or controlled corporations or any of their subsidiaries." Even Section 7
(2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that
"(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter
provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition
imposed on the President and his official family is therefore all-embracing and covers both public and private
office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries."
These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions
are not similarly imposed on other public officials or employees such as the Members of Congress, members of
the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was
also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during
the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally
found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz
Commented, "We actually have to be stricter with the President and the members of the Cabinet because they
exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more
possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all
elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article
VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987
Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and
meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition
on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their tenure. Respondents' interpretation that Section 13
of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction
so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch
from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the
government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution
inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so authorized by the Constitution, but who as an elective
public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any
capacity to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise
provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB
would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a
member of the Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President
shall not nave been chosen or fails to qualify.16 Such absurd consequence can be avoided only by interpreting
the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule
and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must
Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be
separated from all the others, to be considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the
instrument.17 Sections bearing on a particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat another, if by
any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which
will render every word operative, rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple
offices or employment in the government during their tenure, the exception to this prohibition must be read with
equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation.21 The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par.
(2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII;
and, the Secretary of Justice being ex-officiomember of the Judicial and Bar Council by virtue of Section 8 (1),
Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified
therein without additional compensation in an ex-officio capacity as provided by law and as required22 by the
primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within
the contemplation of the constitutional prohibition but are properly an imposition of additional duties and
functions on said officials.23 To characterize these posts otherwise would lead to absurd consequences, among
which are: The President of the Philippines cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the
Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which
would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and
assistant secretaries, would also be prohibited.
41
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries
chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. Neither can their respective
24
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution,
viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible
or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held
without additional compensation in ex-officio capacities as provided by law and as required by the primary
functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers
to an "authority derived from official character merely, not expressly conferred upon the individual character,
but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as
a consequence of office, and without any other appointment or authority than that conferred by the
office."27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment.28 To illustrate, by express provision of law, the Secretary of
Transportation and Communications is the ex-officioChairman of the Board of the Philippine Ports
Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel
Control and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals
that for the chairman and members of the Board to qualify they need only be designated by the respective
department heads. With the exception of the representative from the private sector, they sit ex-officio. In order
to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance,
one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated
a representative from that office. The same is true with respect to the representatives from the other offices. No
new appointments are necessary. This is as it should be, because the representatives so designated merely
perform duties in the Board in addition to those already performed under their original appointments."32
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or
principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties
must not only be closely related to, but must be required by the official's primary functions. Examples of
designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting
as members of the Monetary Board, and the Secretary of Transportation and Communications acting as
Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such additional functions would fall under the
purview of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary
sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies
to such positions which confer on the cabinet official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in government-owned or controlled corporations and
their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of
their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in
many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and
coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of
executing and implementing laws affecting national interest and general welfare and delivering basic services to
the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to
have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions being assigned to the President and his official family
to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity
as provided by law and as required by their primary functions, they would be supervision, thereby deprived of
the means for control and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must
be required by the primary functions of the official concerned, who is to perform the same in an ex-officio
capacity as provided by law, without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the
official concerned has no right to receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as
an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be
in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name
it is designated, such additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to
add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception
"unless required by the functions of his position,"36 express reference to certain high-ranking appointive public
officials like members of the Cabinet were made.37 Responding to a query of Commissioner Blas Ople,
Commissioner Monsod pointed out that there are instances when although not required by current law,
membership of certain high-ranking executive officials in other offices and corporations is necessary by reason
of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and
Industry.38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that
additional functions and duties flowing from the primary functions of the official may be imposed upon him
without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority
for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two
Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section
3 of Committee Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the
article on the Civil Service Commission had been approved on third reading on July 22, 1986, 40 while the article
on the Executive Department, containing the more specific prohibition in Section 13, had also been earlier
approved on third reading on August 26, 1986.41 It was only after the draft Constitution had undergone
reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of
his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional guidelines in
the absence of specific constitutional provisions on the matter. What was primarily at issue and approved on
that occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an
exception to the general rule covering all appointive public officials. Had the Constitutional Commission intended
to dilute the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to
conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as
Section 7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of
the legal principles governing additional functions and duties of public officials rather than by virtue of Section 7,
par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required,"
as opposed to "allowed," by the primary functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention
in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when
other guides fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is
clear.1wphi1Debates in the constitutional convention "are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon
its face."43 The proper interpretation therefore depends more on how it was understood by the people adopting
it than in the framers's understanding thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the
President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure
multiple offices or employment in the government, except in those cases specified in the Constitution itself and
as above clarified with respect to posts held without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of their office, the citation of Cabinet members (then
called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive
42
officials should be considered as mere personal opinions which cannot override the constitution's manifest intent
and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of
the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting
the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to
their primary position to not more than two (2) positions in the government and government corporations,
Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of
the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of
the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that
Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary
positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive
official concerned without additional compensation as provided by law and as required by the primary functions
of his office do not fall under the definition of "any other office" within the contemplation of the constitutional
prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the
feared impractical consequences are more apparent than real. Being head of an executive department is no
mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of other governmental offices or employment. He
should be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from
this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head spreading himself
too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos,
Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the
Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their subsidiaries. With respect to the
other named respondents, the petitions have become moot and academic as they are no longer occupying the
positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such
entitled to emoluments for actual services rendered.46 It has been held that "in cases where there is no de
jure,officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties
pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover
the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and
then be freed from all liability to pay any one for such services.47 Any per diem, allowances or other emoluments
received by the respondents by virtue of actual services rendered in the questioned positions may therefore be
retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is
hereby declared null and void and is accordingly set aside.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88831 November 8, 1990
MATEO CAASI, petitioner,
vs.
THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents.
G.R. No. 84508 November 13, 1990
ANECITO CASCANTE petitioner,
vs.
THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents.
Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.
Montemayor & Montemayor Law Office for private respondent.
GRIO-AQUINO, J.:
These two cases were consolidated because they have the same objective; the disqualification under Section 68
of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of
Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is
a green card holder, hence, a permanent resident of the United States of America, not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First
Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No.
87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the
local elections on January 18, 1988.
G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21,
1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo
Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito
Miguel on account of his being a green card holder.
In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration
Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green
card for convenience in order that he may freely enter the United States for his periodic medical examination
and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted
in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution,
and the congressional elections on May 18,1987.
After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto
Badoy, Jr., dismissed the petitions on the ground that:
The possession of a green card by the respondent (Miguel) does not sufficiently establish
that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of
his green card, Respondent has sufficiently indicated his intention to continuously reside
in Bolinao as shown by his having voted in successive elections in said municipality. As
the respondent meets the basic requirements of citizenship and residence for candidates
to elective local officials (sic) as provided for in Section 42 of the Local Government
Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p.
12, Rollo, G.R. No. 84508).
In his dissenting opinion, Commissioner Badoy, Jr. opined that:
A green card holder being a permanent resident of or an immigrant of a foreign country
and respondent having admitted that he is a green card holder, it is incumbent upon
him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his
status as a permanent resident or immigrant" to be qualified to run for elected office.
This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)
In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner
prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito
C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial
Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals
ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The
Court of Appeals held:
... it is pointless for the Regional Trial Court to hear the case questioning the
qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled
that the petitioner meets the very basic requirements of citizenship and residence for
candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the
candidacy of the petitioner, considering that decisions of the Regional Trial Courts
on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22,
Rollo, G.R. No. 88831.)
43
These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent
resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident
of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18. Public officers and employees owe the State and this Constitution allegiance at
all times, and any public officer or employee who seeks to change his citizenship or
acquire the status of an immigrant of another country during his tenure shall be dealt
with by law.
In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
provides:
SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the election
laws. (Sec. 25, 1971, EC).
In view of current rumor that a good number of elective and appointive public officials in the present
administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the
holders' right to hold elective public office in the Philippines is a question that excites much interest in the
outcome of this case.
In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien
Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and
submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to
Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer
was, "Permanently."
On its face, the green card that was subsequently issued by the United States Department of Justice and
Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a
RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed:
Alien Registration Receipt Card.
Person identified by this card is entitled to reside
permanently and work in the United States." (Annex A pp. 189-
190, Rollo of G.R. No. 84508.)
Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment
of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children
or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by
his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was
issued by the U.S. Government the requisite green card or authority to reside there permanently.
Immigration is the removing into one place from another; the act of immigrating the
entering into a country with the intention of residing in it.
An immigrant is a person who removes into a country for the purpose of permanent
residence. As shown infra 84, however, statutes sometimes give a broader meaning to
the term "immigrant." (3 CJS 674.)
As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he
resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein.
Aliens reading in the limited States, while they are permitted to remain, are in general
entitled to the protection of the laws with regard to their rights of person and property
and to their civil and criminal responsibility.
In general, aliens residing in the United States, while they are permitted to remain are
entitled to the safeguards of the constitution with regard to their rights of person and
property and to their civil and criminal responsibility. Thus resident alien friends are
entitled to the benefit of the provision of the Fourteenth Amendment to the federal
constitution that no state shall deprive "any person" of life liberty, or property without
due process of law, or deny to any person the equal protection of the law, and the
protection of this amendment extends to the right to earn a livelihood by following the
ordinary occupations of life. So an alien is entitled to the protection of the provision of
the Fifth Amendment to the federal constitution that no person shall be deprived of life,
liberty, or property without due process of law. (3 CJS 529-530.)
Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to
change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt
with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United
States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides:
xxx xxx xxx
Any person who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless such person has
waived his status as permanent resident or immigrant of a foreign country in accordance
with the residence requirement provided for in the election laws.'
Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of
Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the
United States?
To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green
card holder must have "waived his status as a permanent resident or immigrant of a foreign country."
Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself
constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his
green card should be manifested by some act or acts independent of and done prior to filing his candidacy for
elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec.
68, Omnibus Election Code).
Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or
immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his
status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore,
hold that he was disqualified to become a candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where
he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is
one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local
Government Code). Miguel did not possess that qualification because he was a permanent resident of the United
States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the
Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.
In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign
country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective
public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that
privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of
evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire
devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must
keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their
status as permanent residents thereof.
44
Miguel insists that even though he applied for immigration and permanent residence in the United States, he
never really intended to live there permanently, for all that he wanted was a green card to enable him to come
and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration
to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other
foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by
permitting him to benefit from it, and giving him the best of both worlds so to speak.
Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green
card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his
occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his
application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered
his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on
January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election
thereto was null and void.
WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and
87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C.
Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 87193 June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.
CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and
assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter,
League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with
the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground
that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his
answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but
pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself
against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival
against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned
to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the
challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed
within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The
League, moreover, was not a proper party because it was not a voter and so could not sue under the said
section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on
Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion
for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a
petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been
rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against
the hearing on the merits scheduled by the COMELEC and at the same time required comments from the
respondents.
In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American
citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was
therefore not qualified to run for and be elected governor. They also argued that their petition in the
Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The
ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and
void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it
could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988
that they received proof of his naturalization. And assuming that the League itself was not a proper party,
Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless
institute the suit by himself alone.
Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a
citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an
alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the
electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election
Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was
not applicable because what the League and Estuye were seeking was not only the annulment of the
proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's
incumbency as governor of Sorsogon on the ground that he was not a Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American
citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49
A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it
had been obtained for reasons of convenience only. He said he could not have repatriated himself before the
1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not
yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a
sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had
divested him of American citizenship under the laws of the United States, thus restoring his Philippine
citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-
barred under Section 253 of the Omnibus Election Code.
Considering the importance and urgency of the question herein raised, the Court has decided to resolve it
directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit
only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the
vital principles of public office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all
contests relating to the election, returns and qualifications of the members of the Congress and elective
provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the
COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We
assume this stance was taken by him after consultation with the public respondent and with its approval. It
therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to
interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in
accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the
COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the
time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this
petition are merely secondary to this basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and
employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section
42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the
Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election
Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being
an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born"
citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however,
that he was naturalized as a citizen of the United States in 1983 per the following certification from the United
States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the
Philippine Consulate General in San Francisco, California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on
January 20, 1983, and issued Certificate of Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,
WILLIAM L. WHITTAKER
Clerk
45
by:
(Sgd.)
ARACELI V. BAREN
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as
earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos
government through his agents in the United States.
The Court sees no reason not to believe that the petitioner was one of the enemies of
the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was
coerced into embracing American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and voluntary choice is totally
unacceptable and must be rejected outright.
There were many other Filipinos in the United States similarly situated as Frivaldo, and
some of them subject to greater risk than he, who did not find it necessary nor do
they claim to have been coerced to abandon their cherished status as Filipinos. They
did not take the oath of allegiance to the United States, unlike the petitioner who
solemnly declared "on oath, that I absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or
which I have heretofore been a subject or citizen," meaning in his case the Republic of
the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in
exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils
of their resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the international law principle of
effective nationality which is clearly not applicable to the case at bar. This principle is
expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality
Laws as follows:
Art. 5. Within a third State a person having more than one
nationality shall be treated as if he had only one. Without
prejudice to the application of its law in matters of personal
status and of any convention in force, a third State shall, of the
nationalities which any such person possesses, recognize
exclusively in its territory either the nationality of the country in
which he is habitually and principally resident or the nationality
of the country with which in the circumstances he appears to be
in fact most closely connected.
Nottebohm was a German by birth but a resident of Guatemala for 34 years when he
applied for and acquired naturalization in Liechtenstein one month before the outbreak
of World War II. Many members of his family and his business interests were in
Germany. In 1943, Guatemala, which had declared war on Germany, arrested
Nottebohm and confiscated all his properties on the ground that he was a German
national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against
Guatemala. The International Court of Justice held Nottebohm to be still a national of
Germany, with which he was more closely connected than with Liechtenstein.
That case is not relevant to the petition before us because it dealt with a conflict
between the nationality laws of two states as decided by a third state. No third state is
involved in the case at bar; in fact, even the United States is not actively claiming
Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a
citizen of the Philippines under our own laws, regardless of other nationality laws. We
can decide this question alone as sovereign of our own territory, conformably to Section
1 of the said Convention providing that "it is for each State to determine under its
law who are its nationals."
It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein
whereas in the present case Frivaldo is rejecting his naturalization in the United States.
If he really wanted to disavow his American citizenship and reacquire Philippine
citizenship, the petitioner should have done so in accordance with the laws of our
country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine
citizenship may be reacquired by direct act of Congress, by naturalization, or by
repatriation.
While Frivaldo does not invoke either of the first two methods, he nevertheless claims he
has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by
actively participating in the elections in this country, he automatically forfeited American
citizenship under the laws of the United States. Such laws do not concern us here. The
alleged forfeiture is between him and the United States as his adopted country. It should
be obvious that even if he did lose his naturalized American citizenship, such forfeiture
did not and could not have the effect of automatically restoring his citizenship in the
Philippines that he had earlier renounced. At best, what might have happened as a result
of the loss of his naturalized citizenship was that he became a stateless individual.
Frivaldo's contention that he could not have repatriated himself under LOI 270 because
the Special Committee provided for therein had not yet been constituted seems to
suggest that the lack of that body rendered his repatriation unnecessary. That is far-
fetched if not specious Such a conclusion would open the floodgates, as it were. It would
allow all Filipinos who have renounced this country to claim back their abandoned
citizenship without formally rejecting their adoptedstate and reaffirming their allegiance
to the Philippines.
It does not appear that Frivaldo has taken these categorical acts. He contends that by
simply filing his certificate of candidacy he had, without more, already effectively
recovered Philippine citizenship. But that is hardly the formal declaration the law
envisions surely, Philippine citizenship previously disowned is not that cheaply
recovered. If the Special Committee had not yet been convened, what that meant simply
was that the petitioner had to wait until this was done, or seek naturalization by
legislative or judicial proceedings.
The argument that the petition filed with the Commission on Elections should be
dismissed for tardiness is not well-taken. The herein private respondents are seeking to
prevent Frivaldo from continuing to discharge his office of governor because he is
disqualified from doing so as a foreigner. Qualifications for public office are continuing
requirements and must be possessed not only at the time of appointment or election or
assumption of office but during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. If, say, a female legislator
were to marry a foreigner during her term and by her act or omission acquires his
nationality, would she have a right to remain in office simply because the challenge to
her title may no longer be made within ten days from her proclamation? It has been
established, and not even denied, that the evidence of Frivaldo's naturalization was
discovered only eight months after his proclamation and his title was challenged shortly
thereafter.
This Court will not permit the anomaly of a person sitting as provincial governor in this
country while owing exclusive allegiance to another country. The fact that he was
elected by the people of Sorsogon does not excuse this patent violation of the salutary
rule limiting public office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the electorate alone. The
will of the people as expressed through the ballot cannot cure the vice of ineligibility,
especially if they mistakenly believed, as in this case, that the candidate was qualified.
Obviously, this rule requires strict application when the deficiency is lack of citizenship.
If a person seeks to serve in the Republic of the Philippines, he must owe his total
loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other
state.
It is true as the petitioner points out that the status of the natural-born citizen is favored
by the Constitution and our laws, which is all the more reason why it should be
treasured like a pearl of great price. But once it is surrendered and renounced, the gift is
gone and cannot be lightly restored. This country of ours, for all its difficulties and
limitations, is like a jealous and possessive mother. Once rejected, it is not quick to
welcome back with eager arms its prodigal if repentant children. The returning renegade
must show, by an express and unequivocal act, the renewal of his loyalty and love.
46
WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the
Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he
is ordered to vacate his office and surrender the same to the duly elected Vice-Governor of the said province
once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is
LIFTED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 105111 July 3, 1992
RAMON L. LABO, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, and ROBERTO ORTEGA, respondents.
G.R. No. 105384 July 3, 1992
ROBERTO C. ORTEGA, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAMON L. LABO, Jr., respondents.
BIDIN, J.:
This is the second time that this Court is called upon to rule on the citizenship of Ramon Labo, Jr., who,
1
believing that he is a Filipino citizen launched his candidacy for mayor of Baguio City in the last May 11, 1992
elections by filing his certificate of candidacy on March 23, 1992.
Petitioner Roberto Ortega (GR No. 105384), on other hand, also filed his certificate of candidacy for the same
office on March 25, 1992.
Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega filed on March 26, 1992, a
disqualification proceeding against Labo before the Commission on Elections (Comelec), docketed as SPA No.
92-029, seeking to cancel Labo's certificate of candidacy on the ground that Labo made a false representation
when he stated therein that he (Labo) is a "natural-born" citizen of the Philippines.
Summons in the disqualification case was issued by the Comelec on March 27, 1992 to petitioner Labo followed
by a telegram dated April 1, 1992, requiring him to file his Answer within three (3) non-extendible days but the
latter failed to respond.
On April 15, 1992, Ortega filed a motion to declare Labo in default for failure to file his Answer.
On April 24, 1992, the Comelec issued another order directing the Election Registrar of Baguio City to personally
deliver the summons. On May 4, 1992, the disqualification case was set for reception of evidence. At the said
hearing, Ortega presented the decision of this Court in Labo v. Commission on Elections (176 SCRA 1 [1989])
declaring Labo not a citizen of the Philippines. Labo, on the other hand, though represented by counsel, did not
present any evidence. It was only on May 5, 1992 that petitioner submitted his Answer claiming Filipino
citizenship.
On May 9, 1992, respondent Comelec issued the assailed resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby resolves, to
grant the petition; respondent's (Labo's) certificate of candidacy is hereby DENIED due
course and ordered CANCELLED; the City Election Registrar of Baguio City is hereby
directed to delete the name of the respondent (Labo) from the list of candidates for City
Mayor of Baguio City. (Rollo, pp. 47-48; GR No. 105111)
On the same date, Labo filed a motion to stay implementation of said resolution until after he shall have raised
the matter before this Court.
On May 10, 1992, respondent Comelec issued an Order which reads:
Acting on the "Urgent Ex-Parte Motion for Clarification", filed by respondent (Labo) on
May 9, 1992, the Commission resolves that the decision promulgated on May 9, 1992
disqualifying respondent Ramon L. Labo, Jr., shall become final and executory only after
five (5) days from promulgation pursuant to Rule 18, Section 13, Paragraph (b) of the
Comelec Rules of Procedure.
Accordingly, respondent (Labo) may still continue to be voted upon as candidate for City
Mayor of Baguio City on May 11, 1992 subject to the final outcome of this case in the
event the issue is elevated to the Supreme Court either on appeal or certiorari. (Rollo, p.
53; GR No. 105111; emphasis supplied)
On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the proclamation of Labo in the event
he wins in the elections for the City Mayor of Baguio. (Rollo, pp. 64-65; GR No. 105111)
On May 15, 1992, petitioner Labo filed the instant petition for review docketed as G.R. No. 105111 with prayer,
among others, for the issuance of a temporary restraining order to set aside the May 9, 1992 resolution of
respondent Comelec; to render judgment declaring him as a Filipino citizen; and to direct respondent Comelec
to proceed with his proclamation in the event he wins in the contested elections.
On the same date, or on May 15, 1992 petitioner Ortega filed before the Comelec an urgent motion for the
implementation of its May 9, 1992 resolution cancelling Labo's certificate of candidacy.
After an exchange of pleadings, respondent Comelec, in its resolution dated May 26, 1992, denied Ortega's
motion in view of the pending case (G.R. No. 105111) earlier filed by Labo of the same nature before this Court.
On June 1, 1992, Ortega filed a petition for mandamus docketed as G.R. No. 105384 praying for the
implementation of the Comelec's May 9, 1992 resolution.
Petitioner Ortega argues that respondent Comelec committed grave abuse of discretion when it refused to
implement its May 9, 1992 resolution notwithstanding the fact that said resolution disqualifying Ramon Labo has
already become final and executory.
After the parties have submitted their respective pleadings, the Court, on June 16, 1992, Resolved to consider
the case submitted for decision.
I. GR No. 105111
In essence, it is the contention of petitioner Labo that he is a Filipino citizen. Alleging lack of trial on the merits
as well as the lack of opportunity to be heard in Labo v. Commission on Elections (supra), it is the submission of
petitioner that he can prove his Filipino citizenship.
Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it was held that in proving
expatriation, an expatriating act an intent to relinquish citizenship must be proved by a preponderance of
evidence.
Petitioner contends that no finding was made either by the Commission on Immigration or the Comelec as
regards his specific intent to renounce his Philippine citizenship.
Petitioner also faults the Comelec for the supposed abbreviated proceedings in SPA No. 92-029 which denied
him adequate opportunity to present a full-dress presentation of his case. Thus: a) only one (1) day was set for
hearing of the case, i.e., May 4, 1992; b) two days later, May 6, 1992 the hearing was set; c) instead of holding
a hearing, the Comelec issued the questioned resolution on May 9, 1992.
If only to refresh the mind of petitioner Labo, as well as that of his counsel, records disclose that summons were
issued by respondent Comelec as early as March 27, 1992 followed by a telegram on April 1, 1992. But
petitioner chose to ignore the same. Came April 15, 1992, petitioner Ortega filed a motion to declare petitioner
Labo in default. Over-extending him (Labo) the benefit of due process, respondent Comelec issued another
order dated April 24, 1992, this time directing the Acting City Election Registrar of Baguio to personally serve
the summons. The alleged delay in the resolution of SPA No. 92-029 can only be attributed to petitioner Labo
and no one else. Thus, the respondent Comelec in its resolution dated May 9, 1992 stated:
47
 On May 4, 1992, the Acting Regional Election Registrar called this case for reception of
evidence. Surprisingly, while as of that date respondent had not yet filed his Answer, a
lawyer appeared for him.
The petitioner (Ortega) presented the certificate of candidacy of respondent Ramon L.
Labo, Jr., which contained in item 9 thereof the verified statement that respondent is a
"natural-born" Filipino citizen. To prove that respondent is not a Filipino citizen,
petitioner submitted the decision of the Supreme Court in "Ramon L. Labo, Jr.,
petitioner, v. Comelec, et al.," GR No. 86564, August 1, 1989, the dispositive portion of
which states:
WHEREFORE, petitioner Ramon J. (sic) Labo, Jr. is hereby
declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as Mayor of Baguio City.
He is ordered to VACATE his office and surrender the same to
the Vice-Mayor of Baguio City once this decision becomes final
and executory.
No evidence was adduced for the respondent as in fact he had no Answer as of the
hearing.
On May 5, 1992, respondent (Labo) filed his verified Answer, insisting that he is a
Filipino citizen and continue to maintain and preserve his Filipino citizenship; that he
does not hold an Australian citizenship; that the doctrine of res judicata does not apply
in citizenship; and that "existing facts support his continuous maintenance and holding
of Philippine citizenship" and "supervening events now preclude the application of the
ruling in the Labo v. Comelec case and the respondent (Labo) now hold and enjoys
Philippine citizenship.
No evidence has been offered by respondent to show what these existing facts and
supervening events are to preclude the application of the Labo decision. (emphasis
supplied)
The Commission is bound by the final declaration that respondent is not a Filipino
citizen. Consequently, respondent's verified statement in his certificate of candidacy that
he is a "natural-born" Filipino citizen is a false material representation." (Rollo, pp. 45-
48; GR No. 105111)
Up to this moment, petitioner Labo still failed to submit a scintilla of proof to shore his claim before this Court
that he has indeed reacquired his Philippine citizenship.
Instead, petitioner relies in the US case of Vance v. Terrazas (supra). Suffice it to state that petitioner has
already pleaded Vance in his motion for reconsideration in Labo v. Comelec (supra; Rollo, p. 375). Having been
previously passed upon, the Court sees no pressing need to re-examine the same and make a lengthy
dissertation thereon.
At any rate, the fact remains that he has not submitted in the instant case any evidence, if there be any, to
prove his reacquisition of Philippine citizenship either before this Court or the Comelec. On this score alone, We
find no grave abuse of discretion committed by respondent Comelec in cancelling his (Labo's) certificate of
candidacy and declaring that he is NOT a Filipino citizen pursuant to our ruling in the 1989 case of Labo v.
Comelec (supra).
Petitioner Labo claims, however, that Sec. 722 of the Omnibus Election Code "operates as a legislatively
mandated special repatriation proceeding" and that it allows his proclamation as the winning candidate since the
resolution disqualifying him was not yet final at the time the election was held.
The Court finds petitioner Labo's strained argument quixotic and untenable. In the first place, Sec. 72 of the
Omnibus Election Code has already been repealed by Sec. 6 of RA No. 6646, to wit:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or the Commission shall continue with the trial and hearing of
the action, inquiry, or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (emphasis supplied)
A perusal of the above provision would readily disclose that the Comelec can legally suspend the proclamation of
petitioner Labo, his reception of the winning number of votes notwithstanding, especially so where, as in this
case. Labo failed to present any evidence before the Comelec to support his claim of reacquisition of Philippine
citizenship.
Furthermore, we need only to reiterate what we have stated in Labo v. Comelec (supra), viz.,:
Under CA No. 63, as amended by P.D. No. 725, Philippine citizenship may be reacquired
by a direct act of Congress, by naturalization, or by repatriation. It does not appear in
the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by
any of these methods. He does not point to any judicial decree of naturalization or to
any statute directly conferring Philippine citizenship upon him. . . .
Petitioner Labo's status has not changed in the case at bar. To reiterate, he (Labo) was disqualified as a
candidate for being an alien. His election does not automatically restore his Philippine citizenship, the possession
of which is an indispensable requirement for holding public office (Sec. 39, Local Government Code).
Still, petitioner takes pains in raising a new argument not litigated before the respondent Comelec. Petitioner
claims that he has reacquired his Filipino citizenship by citing his application for reacquisition of Philippine
citizenship filed before the Office of the Solicitor General pursuant to PD 725 and Letter of Instruction No.
2703 (Rollo, pp. 116-119; G.R. No. 105111).
To date, however, and despite favorable recommendation by the Solicitor General, the Special Committee on
Naturalization had yet acted upon said application for repatriation. Indeed, such fact is even admitted petitioner.
In the absence of any official action or approval by the proper authorities, a mere application for repratriation,
does not, and cannot, amount to an automatic reacquisition of the applicant's Philippine citizenship.
II. GR No. 105384
Petitioner Ortega submits that since this Court did not issue a temporary restraining order as regards the May 9,
1992 resolution of respondent Comelec cancelling Labo's certificate of candidacy, said resolution has already
become final and executory. Ortega further posits the view that as a result of such finality, the candidate
receiving the next highest number of votes should be declared Mayor of Baguio City.
We agree with Ortega's first proposition.
At the time petitioner Labo filed his petition (GR No. 105111) on May 15, 1992, the May 9, 1992 resolution of
respondent Comelec cancelling his (Labo's) certificate of candidacy had already become final and executory a
day earlier, or on May 14, 1992, said resolution having been received by petitioner Labo on the same day it was
promulgated, i.e., May 9, 1992 and in the interim no restraining order was issued by this Court.
Thus, Sec. 78 of the Omnibus Election Code provides:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy
xxx xxx xxx
(e) The decision, order, or ruling of the Commission shall, after five (5) days from
receipt of a copy thereof by the parties, be final and executory unless stayed by the
Supreme Court. (emphasis supplied)
48
A similar provision is also found in Sec. 3, Rule 39 of the Comelec Rules of procedure, to wit:
Sec. 3. Decisions final after five days. Decisions in
pre-proclamation cases and petitions to deny due course to or cancel certificates of
candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and
to postpone or suspend elections shall become final and executory after the lapse of five
(5) days from their promulgation, unless restrained by the Supreme Court. (emphasis
supplied)
The resolution cancelling Labo's certificate of candidacy on the ground that he is not a Filipino citizen having
acquired finality on May 14, 1992 constrains Us to rule against his proclamation as Mayor of Baguio City.
To begin with, one of the qualifications of an elective official is that he must be a citizen of the Philippines. Thus,
the Local Government Code provides:
Sec. 39. Qualifications. (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in the
case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, the district where he intends to be elected; a resident therein for at
least one (1) year immediately preceding the day of the election; and able to read and
write Filipino or any other local language or dialect. (emphasis supplied)
Undoubtedly, petitioner Labo, not being a Filipino citizen, lacks the fundamental qualification for the contested
office. Philippine citizenship is an indispensable requirement for holding an elective office. As mandated by law:
"An elective local official must be a citizen of the Philippines."
The issue here is citizenship and/or Labo's alienage the very essence which strikes at the very core of
petitioner Labo's qualification to assume the contested office, he being an alien and not a Filipino citizen. The
fact that he was elected by the majority of the electorate is of no moment. As we have held in Frivaldo v.
Commission on Elections(174 SCRA 245 [1989]):
. . . The fact that he was elected by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and employment only to the citizens of
this country. The qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure the
vice of ineligibility, especially if they mistakenly believed, as in this case, that the
candidate was qualified. Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in the Republic of the
Philippines, he must owe his total loyalty to this country only, abjuring and renouncing
all fealty and fidelity to any other state.
This brings us to the second issue raised by petitioner Ortega, i.e., whether the disqualification of petitioner
Labo entitles the candidate (Ortega) receiving the next highest number of votes to be proclaimed as the winning
candidate for mayor of Baguio City.
We hold in the negative. The disqualification of petitioner Labo does not necessarily entitle petitioner Ortega as
the candidate with the next highest number of votes to proclamation as the Mayor of Baguio City.
We make mention of petitioner Ortega because in his petition, he alleges that:
. . . the May 11, 1992 elections were held with both herein petitioner (Roberto Ortega)
and respondent LABO having been voted for the position of Mayor and unofficial results
indicate that if the name of respondent LABO were deleted from the list of candidates,
herein petitioner (Ortega) will be entitled to be proclaimed as Mayor-elect of Baguio City.
(Rollo, p. 7, GR No. 105384; emphasis supplied)
and further prays this Court "to proclaim as the Mayor-elect of Baguio City the candidate who may have
garnered the most number of votes after the exclusion of the name of respondent candidate LABO." (Rollo, p.
15, Ibid.) Implicit, therefore, is petitioner Ortega's desire to be proclaimed Mayor-elect of Baguio City.
As discussed hereunder, however, the Court finds Ortega's prayer devoid of merit.
While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact
remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the
electorate for the office of mayor in the belief that he was then qualified to serve the people of Baguio City and
his subsequent disqualification does not make respondent Ortega the mayor-elect. This is the import of the
recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a petition to deny due course to the
certificate of candidacy of Larrazabal and was filed before Larrazabal could be
proclaimed, the fact remains that the local elections of Feb. 1, 1988 in the province of
Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the
province voted for her in the sincere belief that she was a qualified candidate for the
position of governor. Her votes was counted and she obtained the highest number of
votes. The net effect is that petitioner lost in the election. He was repudiated by the
electorate. . . . What matters is that in the event a candidate for an elected position who
is voted for and who obtains the highest number of votes is disqualified for not
possessing the eligibility requirements at the time of the election as provided by law, the
candidate who obtains the second highest number of votes for the same position cannot
assume the vacated position. (emphasis supplied)
Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom.
Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not the
choice of the people of Baguio City.
Thus, while respondent Ortega (GR No. 105111) originally filed a disqualification case with the Comelec
(docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy, the same did not deter
the people of Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent Comelec
to be voted upon, the resolution for his disqualification having yet to attain the degree of finality (Sec. 78.
Omnibus Election Code).
And in the earlier case of Labo v. Comelec (supra), We held:
Finally, there is the question of whether or not the private respondent, who filed the quo
warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is
that as he obtained only the second highest number of votes in the election, he was
obviously not the choice of the people of Baguio City.
The latest ruling of the Court in this issue is Santos v. Commission on Election, (137
SCRA 740) decided in 1985. In that case, the candidate who placed second was
proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregarded as stray. In effect, the
second placer won by default. That decision was supported by eight members of the
Court then (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la
Fuente, Alampay, and Aquino JJ., concurring) with three dissenting (Teehankee,
acting C.J., Abad Santos and Melencio-Herrera) and another two reserving their votes
(Plana and Gutierrez, Jr.). One was on official leave (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in
favor of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents the
more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs. Paredes (23 Phil. 238) was supported by ten members
of the Court (Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring),
without any dissent, . . . . There the Court held:
. . . it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who
has not acquired the majority or plurality of votes is proclaimed
a winner and imposed as the representative of a constituency,
the majority of which have positively declared through their
ballots that they did not choose him.
49
 Sound policy dictates that public elective offices are filled by
those who have received the highest number of votes cast in the
election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that a candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the
office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to
be declared the winner of the elective office. The votes cast for a
dead, disqualified, or non-eligible person may be valid to vote
the winner into office or maintain him there. However, in the
absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the
sincere belief that that candidate was alive, qualified, or eligible,
they should not be treated as stray, void or meaningless.
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office.
Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am. Dec.
149).
It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the
disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the
electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect
petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo
was then qualified to be the person to whom they would entrust the exercise of the powers of the government.
Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances
can a minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for
petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the
Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).
The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification
so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the
ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible
candidate obtaining the next higher number of votes may be deemed elected.
But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that
petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of
such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated May 9, 1992 denying due
course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of
this case.
As aforesaid, the ineligibility of a candidate receiving majority votes does not entitle the candidate receiving the
next highest number of votes to be declared elected. Ortega failed to satisfy the necessary requisite of winning
the election either by a majority or mere plurality of votes sufficient to elevate him in public office as mayor of
Baguio City. Having lost in the election for mayor, petitioner Ortega was obviously not the choice of the people
of Baguio City.
As a consequence of petitioners' ineligibility, a permanent vacancy in the contested office has occurred. This
should now be filled by the vice-mayor, in accordance with Sec. 44 of the Local Government Code, to wit:
Chapter 2. Vacancies and Succession
Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor and
Vice-Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor,
the vice-governor or the vice-mayor concerned shall become the governor or mayor. . . .
(emphasis supplied)
WHEREFORE, the instant petitions are DISMISSED for lack of merit. Petitioners both being ineligible for the
Office of the City Mayor of Baguio City and in view of the vacancy created in said office, the vice-mayor elect of
said city in the May 11, 1992 elections is hereby declared Mayor of Baguio City after proclamation by the City
Board of Canvassers. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13403 March 23, 1960
RAMON E. SAURA, plaintiff-appellant,
vs.
ESTELA P. SINDICO, defendant-appellee.
Anacleto Magno for appellant.
Espeque and Jalandoni for appellee.
REYES, J. B. L., J.:
Appeal on issues of law from an order of the Court of First Instance of Pangasinan dismissing plaintiff's
complaint for damages.
From the records it appears that Ramon E. Saura and Estela P. Sindico were contesting for nomination as the
official candidate of the Nacionalista Party in the fourth district of Pangasinan in the congressional elections of
November 12, 1957. On August 23, 1957, the parties entered into a written agreement bearing the same date,
containing among other matters stated therein, a pledge that
Each aspirant shall respect the result of the aforesaid convention, i.e., no one of us shall either run
as a rebel or independent candidate after losing in said convention.
In the provincial convention held by the Nacionalista Party on August 31, 1957, Saura was elected and
proclaimed the Party's official congressional candidate for the aforesaid district of Pangasinan. Nonetheless,
Sindico, in disregard of the covenant, filed, on September 6, 1957, her certificate of candidacy for the same
office with the Commission on Elections, and she openly and actively campaigned for her election. Wherefore, on
October 5, 1957, plaintiff Saura commenced this suit for the recovery of damages. Upon motion of the
defendant, the lower court, in its order of November 19, 1957, dismissed the complaint on the basis that the
agreement sued upon is null and void, in tat (1) the subject matter of the contract, being a public office, is not
within the commerce of man; and (2) the "pledge" was in curtailment of the free exercise of elective franchise
and therefore against public policy. Hence, this appeal.
We agree with the lower court in adjudging the contract or agreement in question a nullity. Among those that
may not be the subject matter (object) of contracts are certain rights of individuals, which the law and public
policy have deemed wise to exclude from the commerce of man. Among them are the political rights conferred
upon citizens, including, but not limited to, once's right to vote, the right to present one's candidacy to the
people and to be voted to public office, provided, however, that all the qualifications prescribed by law obtain.
Such rights may not, therefore, be bargained away curtailed with impunity, for they are conferred not for
individual or private benefit or advantage but for the public good and interest.
Constitutional and statutory provision fix the qualifications of persons who may be eligible for certain elective
public offices. Said requirements may neither be enlarged nor reduced by mere agreements between private
parties. A voter possessing all the qualifications required to fill an office may, by himself or through a political
party or group, present his candidacy without further limitations than those provided by law.
Every voter has a right to be a candidate for public office if he possesses the qualifications required
to fill the office. It does not necessarily follow that he can be the candidate of a particular political
party. The statute provides when and how one may be a candidate of a political party. If he cannot
fill the requirement so as to be the candidates of the political party of his choice, he may still be a
candidate at the general election by petition. The right of the voter to vote at the general election for
whom he pleases cannot be limited. (Roberts vs. Cleveland, Secretary of State of State of New
Mexico, 48 NM 226, 149 P (2d) 120, 153 A.L.R. 635, 637-638) (Emphasis supplied)
50
In common law, certain agreements in consideration of the withdrawal of candidates for office have invariably
been condemned by the courts as being against public policy, be it a withdrawal from the race for nomination
or, after nomination, from the race for election. (See notes in 37 L. R. A. (N.S.) 289 and cases cited therein; 18
Am. Jur. Sec. 352, pp. 399-400)
In the case at hand, plaintiff complains on account of defendant's alleged violation of the "pledge" in question by
filing her own certificate o candidacy for a seat in the Congress of the Philippines and in openly and actively
campaigning for her election. In the face of the preceding considerations, we certainly cannot entertain plaintiff's
action, which would result in limiting the choice of the electors to only those persons selected by a small group
or by party boses.
The case of Pendleton vs. Pace, 9 S.W. (2nd) 437, cited by the appellant, is clearly inapplicable. The court there
only sanctioned the validity of an agreement by the opposing candidates for nomination setting aside and re-
submitting the nomination for another primary election on account of the protest or contest filed by the losing
candidate in the first primary election. To abandon the contest proceedings, the candidates for nomination
agreed to submit again their nomination to the electors in the subsequent primary.
Appellant likewise cites and quotes a portion of our ruling in Monsale vs. Nico, 83 Phil., 758; 46 Off. Gaz., 210,
to the effect that it is not incompetent or a candidate to withdraw or annul his certificate of candidacy. This is
not in point, for while we stated there that he may do so, there being no legal prohibition against such a
voluntary withdrawal, it does not follow, nor did we imply anywhere in the decision, that in case there is any
agreement or consideration for such a withdrawal, said agreement or consideration should be held valid or given
effect.
We find it unnecessary to discuss the other points raised by the parties.
Wherefore, the order of dismissal appealed from is hereby affirmed. No pronouncement as to costs.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera and Gutierrez
David, JJ., concur.
David Aguila vs Melecio Genato
103 SCRA 380 Law on Public Officers No Vested Right to a Public Office Continuing Eligibility
Dominador Borje was an elected member of the Board of Directors of the Misamis Occidental Electric
Cooperative, Inc. (MOELC). While still serving as a director for MOELC, he ran for an elective position to the
Sangguniang Bayan of Ozamiz City. Therafter, David Aguila of the National Electrification Administration issued
a memorandum which states that all officials and employees of electric cooperatives who run for public office,
win and assume office, shall be considered resigned. Borje won in the elections. The other directors of MOELC
then sought to enforce the memorandum against Borje. Borje filed a petition in court questioning said
memorandum. Borje claimed that the memorandum is not applicable to him because when he assumed the
Directorship in MOELC he was already qualified and so he must be allowed to continue holding office. Judge
Genato agreed with Borje and so he issued a TRO against MOELC from considering Borje as resigned.
ISSUE: Whether or not the ruling is correct.
HELD: No. The court has no jurisdiction over the said matter. PD 269 which created NEA provides that electric
cooperatives (like MOELC) have the right to prescribe qualifications of its directors and their manner of election
and removal. MOELC has to comply with the memorandum of NEA, a superior office under which MOELC is being
administered. Further still, Borje has not shown that he has an explicit right to continue holding the
Directorship. Further, Borje being considered resigned by reason of his election to the Sanggunian is not merely
grounded on the NEA memorandum. It is also grounded on PD 269 which provides that elective officials are
ineligible to become officers and/or directors of any cooperatives except if such elective position is no higher
than a barangay captain.
There is no merit to Borjes contention that since he was originally qualified he shall be allowed to continue his
unexpired term in MOELC. Eligibility to an office should be construed as of a continuing nature and must exist at
the commencement of the term and during occupancy of the office. Borje ceased to be qualified and so he must
be resigned from MOELC.
EN BANC
G.R. No. 203372, June 16, 2015
ATTY. CHELOY E. VELICARIA- GARAFIL, Petitioner, v. OFFICE OF THE PRESIDENT AND HON.
SOLICITOR GENERAL JOSE ANSELMO I. CADIZ, Respondents.
[G.R. No. 206290]
ATTY. DINDO G. VENTURANZA, Petitioner, v. OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, IN HER
CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF JUSTICE, CLARO A. ARELLANO, IN HIS
CAPACITY AS THE PROSECUTOR GENERAL, AND RICHARD ANTHONY D. FADULLON, IN HIS CAPACITY
AS THE OFFICER-IN-CHARGE OF THE OFFICE OF THE CITY PROSECUTOR OF QUEZON
CITY, Respondents.
[G.R. No. 209138]
IRMA A. VILLANUEVA AND FRANCISCA B. ROSQUITA, Petitioners, v. COURT OF APPEALS AND THE
OFFICE OF THE PRESIDENT, Respondents.
[G.R. No. 212030]
EDDIE U. TAMONDONG, Petitioner, v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.
DECISION
CARPIO, J.:
The present consolidated cases involve four petitions: G.R. No. 203372 with Atty. Cheloy E. Velicaria-Garafil
(Atty. Velicaria-Garafil), who was appointed State Solicitor II at the Office of the Solicitor General (OSG), as
petitioner; G.R. No. 206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), who was appointed Prosecutor
IV (City Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with Irma A. Villanueva (Villanueva), who
was appointed Administrator for Visayas of the Board of Administrators of the Cooperative Development
Authority (CDA), and Francisca B. Rosquita (Rosquita), who was appointed Commissioner of the National
Commission of Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030 with Atty. Eddie U. Tamondong
(Atty. Tamondong), who was appointed member of the Board of Directors of the Subic Bay Metropolitan
Authority (SBMA), as petitioner. All petitions question the constitutionality of Executive Order No. 2 (EO 2) for
being inconsistent with Section 15, Article VII of the 1987 Constitution.
Petitioners seek the reversal of the separate Decisions of the Court of Appeals (CA) that dismissed their petitions
and upheld the constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-Garafil is a Petition for Review
on Certiorari,1 assailing the Decision2 dated 31 August 2012 of the CA in CA-G.R. SP No. 123662. G.R. No.
206290 filed by Atty. Venturanza is a Petition for Review on Certiorari,3 assailing the Decision4 dated 31 August
2012 and Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No. 123659. G.R. No. 209138 filed by
Villanueva and Rosquita is a Petition for Certiorari,6 seeking to nullify the Decision7 dated 28 August 2013 of the
CA in CA-G.R. SP Nos. 123662, 123663, and 123664.8Villanueva and Rosquita filed a Petition-in-Intervention in
the consolidated cases before the CA. G.R. No. 212030 is a Petition for Review on Certiorari, 9 assailing the
Decision10 dated 31 August 2012 of the CA in CA-G.R. SP No. 123664 and Resolution11 dated 7 April 2014 of the
CA in CA-G.R. SP Nos. 123662, 123663, and 123664.12chanrobleslaw
Facts of the Cases
Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President Macapagal-
Arroyo) issued more than 800 appointments to various positions in several government offices.
The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution
reads:chanRoblesvirtualLawlibrary
Two months immediately before the next presidential elections and up to the end of his term, a President or
Acting President shall not make appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety.chanroblesvirtuallawlibrary
Thus, for purposes of the 2010 elections, 10 March 2010 was the cut-off date for valid appointments and the
next day, 11 March 2010, was the start of the ban on midnight appointments. Section 15, Article VII of the 1987
Constitution recognizes as an exception to the ban on midnight appointments only temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public safety.
None of the petitioners claim that their appointments fall under this exception.
Appointments
G.R. No. 203372
The paper evidencing Atty. Velicaria-Garafils appointment as State Solicitor II at the OSG was dated 5 March
2010.13 There was a transmittal letter dated 8 March 2010 of the appointment paper from the Office of the
President (OP), but this transmittal letter was received by the Malacaang Records Office (MRO) only on 13 May
2010. There was no indication as to the OSGs date of receipt of the appointment paper. On 19 March 2010, the
51
OSGs Human Resources Department called up Atty. Velicaria-Garafil to schedule her oath-taking. Atty.
Velicaria-Garafil took her oath of office as State Solicitor II on 22 March 2010 and assumed her position on 6
April 2010.
G.R. No. 206290
The paper evidencing Atty. Venturanzas appointment as Prosecutor IV (City Prosecutor) of Quezon City was
dated 23 February 2010.14 It is apparent, however, that it was only on 12 March 2010 that the OP, in a letter
dated 9 March 2010, transmitted Atty. Venturanzas appointment paper to then Department of Justice (DOJ)
Secretary Alberto C. Agra.15 During the period between 23 February and 12 March 2010, Atty. Venturanza, upon
verbal advice from Malacaang of his promotion but without an official copy of his appointment paper, secured
clearances from the Civil Service Commission (CSC),16 Sandiganbayan,17and the DOJ.18 Atty. Venturanza took
his oath of office on 15 March 2010, and assumed office on the same day.
G.R. No. 209138
WHEREAS, in the case of In re: Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and Hon.
Vallarta as Judges of the Regional Trial Court of Branch 62 of Bago City and Branch 24 of Cabanatuan City,
respectively (A.M. No. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to mean that
the President is neither required to make appointments nor allowed to do so during the two months immediately
before the next presidential elections and up to the end of her term. The only known exceptions to this
prohibition are (1) temporary appointments in the executive positions when continued vacancies will prejudice
public service or endanger public safety and in the light of the recent Supreme Court decision in the case of De
Castro, et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to the Judiciary;
WHEREAS, Section 261 of the Omnibus Election Code provides that:ChanRoblesVirtualawlibrary
Section 261. Prohibited Acts. The following shall be guilty of an election offense:ChanRoblesVirtualawlibrary
(g) Appointments of new employees, creation of new position, promotion, or giving salary increases. During
the period of forty-five days before a regular election and thirty days before a special election.

The paper evidencing Villanuevas appointment as Administrator for Visayas of the Board of Administrators of
the CDA was dated 3 March 2010.19 There was no transmittal letter of the appointment paper from the OP.
Villanueva took her oath of office on 13 April 2010.
The paper evidencing Rosquitas appointment as Commissioner, representing Region I and the Cordilleras, of the
NCIP was dated 5 March 2010.20 Like Villanueva, there was no transmittal letter of the appointment paper from
the OP. Rosquita took her oath of office on 18 March 2010.
G.R. No. 212030
(1) Any head, official or appointing officer of a government office, agency or instrumentality, whether national or
local, including government-owned or controlled corporations, who appoints or hires any new employee,
whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority to
the Commission. The Commission shall not grant the authority sought unless it is satisfied that the position to
be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not
be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed in the case of urgent
need:ChanRoblesVirtualawlibrary

The paper evidencing Atty. Tamondongs appointment as member, representing the private sector, of the SBMA
Board of Directors was dated 1 March 2010.21 Atty. Tamondong admitted that the appointment paper was
received by the Office of the SBMA Chair on 25 March 2010 22 and that he took his oath of office on the same
day.23 He took another oath of office on 6 July 2010 as an act of extra caution because of the rising crescendo
of noise from the new political mandarins against the so-called midnight appointments.24chanrobleslaw
Provided, however, that notice of the appointment shall be given to the Commission within three days from the
date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.
(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to any
government official or employee, including those in government-owned or controlled corporations.;

To summarize, the pertinent dates for each petitioner are as follows:chanRoblesvirtualLawlibrary WHEREAS, it appears on record that a number of appointments were made on or about 10 March 2010 in
Date of Date of complete disregard of the intent and spirit of the constitutional ban on midnight appointment and which deprives
Date of Receipt Date of Oath of Assumption the new administration of the power to make its own appointment;
G.R. No. Appointment Transmittal
by MRO Office of Office
Letter Letter
WHEREAS, based on established jurisprudence, an appointment is deemed complete only upon acceptance of
203372
the appointee;
(Atty. Velicaria-
5 March 2010 8 March 2010 13 May 2010 22 March 2010 6 April 2010
Garafil)
WHEREAS, in order to strengthen the civil service system, it is necessary to uphold the principle that
appointments to the civil service must be made on the basis of merit and fitness, it is imperative to recall,
206290 withdraw, and revoke all appointments made in violation of the letter and spirit of the law;
15 March
(Atty. Venturanza) 23 February 2010 9 March 2010 12 March 2010 15 March 2010
2010
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the Constitution as
209138 President of the Philippines, do hereby order and direct that:ChanRoblesVirtualawlibrary
(Villanueva) 3 March 2010 4 May 2010 13 April 2010
SECTION 1. Midnight Appointments Defined. The following appointments made by the former President and
209138 other appointing authorities in departments, agencies, offices, and instrumentalities, including government-
(Rosquita) 5 March 2010 13 May 2010 18 March 2010 owned or controlled corporations, shall be considered as midnight appointments:ChanRoblesVirtualawlibrary

212030 25 March 2010 (a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11,
(Atty. Tamondong) 1 March 2010 and 6 July 2010 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010,
except temporary appointments in the executive positions when continued vacancies will prejudice public service
or endanger public safety as may be determined by the appointing authority.
Issuance of EO 2
(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that would
On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office as President of the
be vacant only after March 11, 2010.
Republic of the Philippines. On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing, and revoking
appointments issued by President Macapagal-Arroyo which violated the constitutional ban on midnight
(c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections in
appointments.
violation of Section 261 of the Omnibus Election Code.
The entirety of EO 2 reads:chanRoblesvirtualLawlibrary
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined
EXECUTIVE ORDER NO. 2
under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected are
hereby declared vacant.
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE PREVIOUS ADMINISTRATION IN
VIOLATION OF THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER PURPOSES.
SECTION 3. Temporary designations. When necessary to maintain efficiency in public service and ensure the
continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC) to
WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that Two months immediately before the next
perform the duties and discharge the responsibilities of any of those whose appointment has been recalled, until
presidential elections and up to the end of his term, a President or Acting President shall not make
the replacement of the OIC has been appointed and qualified.
appointments, except temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.;
SECTION 4. Repealing Clause. All executive issuances, orders, rules and regulations or part thereof
inconsistent with the provisions of this Executive Order are hereby repealed or modified accordingly.

52

SECTION 5. Separability Clause. If any section or provision of this executive order shall be declared
unconstitutional or invalid, the other sections or provision not affected thereby shall remain in full force and
effect.
SECTION 6. Effectivity. This Executive order shall take effect immediately.
DONE in the City of Manila, this 30 th
day of July, in the year Two Thousand and Ten.
(Sgd.) BENIGNO S. AQUINO III
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General (Sol. Gen. Cadiz). On 6 August 2010,
Sol. Gen. Cadiz instructed a Senior Assistant Solicitor General to inform the officers and employees affected by
EO 2 that they were terminated from service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010 without any knowledge of her termination. She was
made to return the office-issued laptop and cellphone, and was told that her salary ceased as of 7 August 2010.
On 12 August 2010, Atty. Velicaria-Garafil was informed that her former secretary at the OSG received a copy of
a memorandum on her behalf. The memorandum, dated 9 August 2010, bore the subject Implementation of
Executive Order No. 2 dated 30 July 2010 and was addressed to the OSGs Director of Finance and
Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before this Court on 1 September 2010.
The petition prayed for the nullification of EO 2, and for her reinstatement as State Solicitor II without loss of
seniority, rights and privileges, and with full backwages from the time that her salary was
withheld.26chanrobleslaw
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile transmission an undated copy of DOJ Order No.
556. DOJ Order No. 556, issued by DOJ Secretary Leila M. De Lima (Sec. De Lima), designated Senior Deputy
State Prosecutor Richard Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge of the Office of the City
Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15 September 2010, Atty. Venturanza asked for
clarification of his status, duties, and functions since DOJ Order No. 556 did not address the same. Atty.
Venturanza also asked for a status quo ante order to prevent Pros. Fadullon from usurping the position and
functions of the City Prosecutor of Quezon City. Atty. Venturanza also wrote a letter to President Aquino on the
same day, and sought reaffirmation of his promotion as City Prosecutor of Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010 from Sec. De Lima which directed
him to relinquish the office to which he was appointed, and to cease from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with Urgent Prayer for Status Quo Ante
Order, Temporary Restraining Order and/or Preliminary Mandatory Injunction (G.R. No. 193867) before this
Court on 14 October 2010.27chanrobleslaw
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3 August 2010, Villanueva and
Rosquita sought to intervene in G.R. No. 192991.28 On 1 October 2010, Executive Secretary Paquito N. Ochoa,
Jr. revoked Rosquitas appointment as NCIP Commissioner.29 On 13 October 2010, Villanueva and Rosquita
notified this Court that they wanted to intervene in Atty. Tamondongs petition (G.R. No. 192987) instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010. He filed a petition for
prohibition, declaratory relief and preliminary injunction with prayer for temporary restraining order (G.R. No.
192987) before this Court on 9 August 2010. The petition prayed for the prohibition of the implementation of EO
2, the declaration of his appointment as legal, and the declaration of EO 2 as unconstitutional. 30chanrobleslaw
Referral to CA
There were several petitions31 and motions for intervention32 that challenged the constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the petitions, motions for intervention, as well as
various letters, to the CA for further proceedings, including the reception and assessment of the evidence from
all parties. We defined the issues as follows:chanRoblesvirtualLawlibrary
1. Whether the appointments of the petitioners and intervenors were midnight appointments within the
coverage of EO 2;
2. Whether all midnight appointments, including those of petitioners and intervenors, were invalid;
3. Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with good faith; and
4. Whether EO 2 violated the Civil Service Rules on Appointment. 33
This Court gave the CA the authority to resolve all pending matters and applications, and to decide the issues as
if these cases were originally filed with the CA.
Rulings of the CA
Even though the same issues were raised in the different petitions, the CA promulgated separate Decisions for
the petitions. The CA consistently ruled that EO 2 is constitutional. The CA, however, issued different rulings as
to the evaluation of the circumstances of petitioners appointments. In the cases of Attys. Velicaria-Garafil and
Venturanza, the CA stated that the OP should consider the circumstances of their appointments. In the cases of
Villanueva, Rosquita, and Atty. Tamondong, the CA explicitly stated that the revocation of their appointments
was proper because they were midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August 2012. The CA ruled that EO 2 is not
unconstitutional. However, the CA relied on Sales v. Carreon34 in ruling that the OP should evaluate whether
Atty. Velicaria-Garafils appointment had extenuating circumstances that might make it fall outside the ambit of
EO 2.
The dispositive portion of the CAs Decision reads:chanRoblesvirtualLawlibrary
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioners appointment as State Solicitor II at the OSG is
hereby referred to the Office of the President which has the sole authority and discretion to pass upon the same.
SO ORDERED.35
G.R. No. 206290 (CA-G.R. SP No. 123659)
The CA promulgated its Decision in CA-G.R. SP No. 123659 on 31 August 2012. The CA ruled that EO 2 is not
unconstitutional. Like its Decision in CA-G.R. SP No. 123662, the CA relied on Sales v. Carreon36 in ruling that
the OP should evaluate whether Atty. Venturanzas appointment had extenuating circumstances that might
make it fall outside the ambit of EO 2.
The dispositive portion of the CAs Decision reads:chanRoblesvirtualLawlibrary
WHEREFORE, the petition for certiorari, prohibition and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioners appointment as City Chief Prosecutor of Quezon City is
hereby referred to the Office of the President which has the sole authority and discretion to pass upon the same.
SO ORDERED.37
G.R. No. 209138
The CA ruled on Villanueva and Rosquitas Petition-in-Intervention through a Decision in CA-G.R. SP Nos.
123662, 123663, and 123664 promulgated on 28 August 2013. The CA stated that Villanueva and Rosquita
were midnight appointees within the contemplation of Section 15, Article VII of the 1987 Constitution. The letter
issued by the CSC that supported their position could not serve as basis to restore them to their respective
offices.
The dispositive portion of the CAs Decision reads:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is hereby
declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Petitioners-Intervenors Irma Villanueva and
Francisca Rosquita [sic] appointment[s] as Administrator for Visayas of the Board of Administrators of the
Cooperative Development Authority, and Commissioner of National Commission on Indigenous Peoples
[respectively,] is VALID, the same being a [sic] midnight appointment[s].
SO ORDERED.38
53
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No. 123664. The dispositive portion reads as
follows:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is hereby
declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie Tamondongs appointment as
Director of Subic Bay Metropolitan Authority is VALID for being a midnight appointment.
SO ORDERED.39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether petitioners appointments violate Section 15,
Article VII of the 1987 Constitution, and (2) whether EO 2 is constitutional.
Ruling of the Court
The petitions have no merit. All of petitioners appointments are midnight appointments and are void for
violation of Section 15, Article VII of the 1987 Constitution. EO 2 is constitutional.
Villanueva and Rosquita, petitioners in G.R. No. 209138, did not appeal the CAs ruling under Rule 45, but
instead filed a petition for certiorari under Rule 65. This procedural error alone warrants an outright dismissal of
G.R. No. 209138. Even if it were correctly filed under Rule 45, the petition should still be dismissed for being
filed out of time.40 There was also no explanation as to why they did not file a motion for reconsideration of the
CAs Decision.
Midnight Appointments
This ponencia and the dissent both agree that the facts in all these cases show that none of the petitioners
have shown that their appointment papers (and transmittal letters) have been issued (and released) before the
ban.41 The dates of receipt by the MRO, which in these cases are the only reliable evidence of actual transmittal
of the appointment papers by President Macapagal-Arroyo, are dates clearly falling during the appointment ban.
Thus, this ponencia and the dissent both agree that all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the 1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post is a process that takes several steps to
complete. Any valid appointment, including one made under the exception provided in Section 15, Article VII of
the 1987 Constitution, must consist of the President signing an appointees appointment paper to a vacant
office, the official transmittal of the appointment paper (preferably through the MRO), receipt of the
appointment paper by the appointee, and acceptance of the appointment by the appointee evidenced by his or
her oath of office or his or her assumption to office.
Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of the 1987 Constitution. Aytonadefined
midnight or last minute appointments for Philippine jurisprudence. President Carlos P. Garcia submitted on 29
December 1961, his last day in office, 350 appointments, including that of Dominador R. Aytona for Central
Bank Governor. President Diosdado P. Macapagal assumed office on 30 December 1961, and issued on 31
December 1961 Administrative Order No. 2 recalling, withdrawing, and cancelling all appointments made by
President Garcia after 13 December 1961 (President Macapagals proclamation date). President Macapagal
appointed Andres V. Castillo as Central Bank Governor on 1 January 1962. This Court dismissed Aytonas quo
warranto proceeding against Castillo, and upheld Administrative Order No. 2s cancellation of the midnight or
last minute appointments. We wrote:chanRoblesvirtualLawlibrary
x x x But the issuance of 350 appointments in one night and the planned induction of almost all of them a few
hours before the inauguration of the new President may, with some reason, be regarded by the latter as an
abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant
positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an
opportunity to make the corresponding appointments.
setting similar to that outlined herein. On the other hand, the authorities admit of exceptional circumstances
justifying revocation and if any circumstances justify revocation, those described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointee
has qualified is the latters equitable rights. Yet it is doubtful if such equity might be successfully set up in the
present situation, considering the rush conditional appointments, hurried maneuvers and other happenings
detracting from that degree of good faith, morality and propriety which form the basic foundation of claims to
equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to
beat the deadline, whatever the resultant consequences to the dignity and efficiency of the public service.
Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness
should be taken into account.43
During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now retired Supreme
Court Chief Justice) Hilario G. Davide, Jr. referred to this Courts ruling in Aytona and stated that his proposal
seeks to prevent a President, whose term is about to end, from preempting his successor by appointing his own
people to sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he may prolong his
rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the
judiciary, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right
of his successor to make appointments to these positions. We should realize that the term of the President is six
years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country
through appointments made about the end of his term to these sensitive positions.44
The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytonas intangible
stratagem to beat the deadline, and also on the act of preempting the Presidents successor, which shows a
lack of good faith, morality and propriety. Subject to only one exception, appointments made during this
period are thus automatically prohibited under the Constitution, regardless of the appointees qualifications or
even of the Presidents motives. The period for prohibited appointments covers two months before the elections
until the end of the Presidents term. The Constitution, with a specific exception, ended the Presidents power to
appoint two months immediately before the next presidential elections. For an appointment to be valid, it must
be made outside of the prohibited period or, failing that, fall under the specified exception.
The dissent insists that, during the prohibited period, an appointment should be viewed in its narrow sense. In
its narrow sense, an appointment is not a process, but is only an executive act that the President unequivocally
exercises pursuant to his discretion.45 The dissent makes acceptance of the appointment inconsequential. The
dissent holds that an appointment is void if the appointment is made before the ban but the transmittal and
acceptance are made after the ban. However, the dissent holds that an appointment is valid, or efficacious, if
the appointment and transmittal are made before the ban even if the acceptance is made after the ban. In
short, the dissent allows an appointment to take effect during the ban, as long as the President signed and
transmitted the appointment before the ban, even if the appointee never received the appointment paper before
the ban and accepted the appointment only during the ban.
The dissents view will lead to glaring absurdities. Allowing the dissents proposal that an appointment is
complete merely upon the signing of an appointment paper and its transmittal, excluding the appointees
acceptance from the appointment process, will lead to the absurdity that, in case of non-acceptance, the
position is considered occupied and nobody else may be appointed to it. Moreover, an incumbent public official,
appointed to another public office by the President, will automatically be deemed to occupy the new public office
and to have automatically resigned from his first office upon transmittal of his appointment paper, even if he
refuses to accept the new appointment. This will result in chaos in public service.
Even worse, a President who is unhappy with an incumbent public official can simply appoint him to another
public office, effectively removing him from his first office without due process. The mere transmittal of his
appointment paper will remove the public official from office without due process and even without cause, in
violation of the Constitution.
The dissents proferred excuse (that the appointee is not alluded to in Section 15, Article VII) for its rejection of
acceptance by the appointee as an integral part of the appointment process ignores the reason for the
limitation of the Presidents power to appoint, which is to prevent the outgoing President from continuing to rule
the country indirectly after the end of his term. The 1986 Constitutional Commission installed a definite cut-off
date as an objective and unbiased marker against which this once-in-every-six-years prohibition should be
measured.

x x x Now it is hard to believe that in signing 350 appointments in one night, President Garcia exercised such
double care which was required and expected of him; and therefore, there seems to be force to the contention
that these appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive
authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of powers, this Court resolves that it must
decline to disregard the Presidential Administrative Order No. 2, cancelling such midnight or last-minute
appointments.
Of course the Court is aware of many precedents to the effect that once an appointment has been issued, it
cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad
interim appointments (three hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a
The dissents assertion that appointment should be viewed in its narrow sense (and is not a
process) only during the prohibited period is selective and time-based, and ignores well-settled jurisprudence.
For purposes of complying with the time limit imposed by the appointment ban, the dissents position cuts short
the appointment process to the signing of the appointment paper and its transmittal, excluding the receipt of
the appointment paper and acceptance of the appointment by the appointee.
The President exercises only one kind of appointing power. There is no need to differentiate the exercise of the
Presidents appointing power outside, just before, or during the appointment ban. The Constitution allows the
President to exercise the power of appointment during the period not covered by the appointment ban, and
disallows (subject to an exception) the President from exercising the power of appointment during the period
covered by the appointment ban. The concurrence of all steps in the appointment process is admittedly required
for appointments outside the appointment ban. There is no justification whatsoever to remove acceptance as a

54
requirement in the appointment process for appointments just before the start of the appointment ban, or
during the appointment ban in appointments falling within the exception. The existence of the appointment ban
makes no difference in the power of the President to appoint; it is still the same power to appoint. In fact,
considering the purpose of the appointment ban, the concurrence of all steps in the appointment process must
be strictly applied on appointments made just before or during the appointment ban.
In attempting to extricate itself from the obvious consequences of its selective application, the dissent glaringly
contradicts itself:chanRoblesvirtualLawlibrary
Thus, an acceptance is still necessary in order for the appointee to validly assume his post and
discharge the functions of his new office, and thus make the appointment effective. There can never
be an instance where the appointment of an incumbent will automatically result in his resignation from his
present post and his subsequent assumption of his new position; or where the President can simply remove an
incumbent from his current office by appointing him to another one. I stress that acceptance through oath or
any positive act is still indispensable before any assumption of office may occur. 46 (Emphasis added)
The dissent proposes that this Court ignore well-settled jurisprudence during the appointment ban, but apply the
same jurisprudence outside of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a process that begins with the selection by
the appointing power and ends with acceptance of the appointment by the appointee, stands. As early as the
1949 case of Lacson v. Romero, this Court laid down the rule that acceptance by the appointee is the last act
needed to make an appointment complete. The Court reiterated this rule in the 1989 case of Javier v. Reyes. In
the 1996 case of Garces v. Court of Appeals, this Court emphasized that acceptance by the appointee is
indispensable to complete an appointment. The 1999 case of Bermudez v. Executive Secretary, cited in
the ponencia, affirms this standing rule in our jurisdiction, to wit:chanRoblesvirtualLawlibrary
The appointment is deemed complete once the last act required of the appointing authority has been complied
with and its acceptance thereafter by the appointee in order to render it effective. 47
The dissents assertion creates a singular exception to the well-settled doctrine that appointment is a process
that begins with the signing of the appointment paper, followed by the transmittal and receipt of the
appointment paper, and becomes complete with the acceptance of the appointment. The dissent makes the
singular exception that during the constitutionally mandated ban on appointments, acceptance is not necessary
to complete the appointment. The dissent gives no reason why this Court should make such singular exception,
which is contrary to the express provision of the Constitution prohibiting the President from making
appointments during the ban. The dissents singular exception will allow the President, during the ban on
appointments, to remove from office incumbents without cause by simply appointing them to another office and
transmitting the appointment papers the day before the ban begins, appointments that the incumbents cannot
refuse because their acceptance is not required during the ban. Adoption by this Court of the dissents singular
exception will certainly wreak havoc on the civil service.
The following elements should always concur in the making of a valid (which should be understood as both
complete and effective) appointment: (1) authority to appoint and evidence of the exercise of the authority; (2)
transmittal of the appointment paper and evidence of the transmittal; (3) a vacant position at the time of
appointment; and (4) receipt of the appointment paper and acceptance of the appointment by the appointee
who possesses all the qualifications and none of the disqualifications. The concurrence of all these elements
should always apply, regardless of when the appointment is made, whether outside, just before, or during the
appointment ban. These steps in the appointment process should always concur and operate as a single
process. There is no valid appointment if the process lacks even one step. And, unlike the dissents proposal,
there is no need to further distinguish between an effective and an ineffective appointment when an
appointment is valid.
Appointing Authority
The Presidents exercise of his power to appoint officials is provided for in the Constitution and laws. 48Discretion
is an integral part in the exercise of the power of appointment. 49cralawred
Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion.
According to Woodbury, J., the choice of a person to fill an office constitutes the essence of his appointment,
and Mr. Justice Malcolm adds that an [a]ppointment to office is intrinsically an executive act involving the
exercise of discretion. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we
held:chanRoblesvirtualLawlibrary
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion
of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words,
the choice of the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the
same time limit the choice of the President to only one candidate. Once the power of appointment is conferred
on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of
prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing
authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications
prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion
of the appointing power to choose and constitutes an irregular restriction on the power of appointment.50
Transmittal
It is not enough that the President signs the appointment paper. There should be evidence that the President
intended the appointment paper to be issued. It could happen that an appointment paper may be dated and
signed by the President months before the appointment ban, but never left his locked drawer for the entirety of
his term. Release of the appointment paper through the MRO is an unequivocal act that signifies the Presidents
intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958, Governing the Organization and Functions
of the Executive Office and General Matters of Procedure Therein. Initially called the Records Division, the MRO
functioned as an administrative unit of the Executive Office. Memorandum Order No. 1 assigned the following
functions:chanRoblesvirtualLawlibrary
a. Receive, record and screen all incoming correspondence, telegrams, documents and papers, and
(1) Forward those of a personal and unofficial nature to the Presidents Private Office; and
(2) Distribute those requiring action within the Office or requiring staff work prior to presentation to the
President to the appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside the Office to assure that prompt replies are made
and copies thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal papers of the President, and keep them in such
condition as to meet the documentary and reference requirements of the Office.
e. Keep and maintain a filing and records system for acts, memoranda, orders, circulars, correspondence and
other documents affecting the Office for ready reference and use.
f. Issue certified true copies of documents on file in the Division in accordance with prevailing standard
operating procedure.
g. Keep a separate record of communications or documents of confidential nature.
h. Have custody of the Great Seal of the Republic of the Philippines.
i. Prepare and submit to the approving authority, periodic disposition schedules of non-current records which
have no historical, legal and/or claim value.
j. With the approval of the Executive Secretary, assist other offices in the installation or improvement of their
records management system; and
k. Give instructions or deliver lectures and conduct practical training to in-service trainees from other offices and
to students from educational institutions on records management. 51
The Records Division was elevated to an Office in 1975, with the addition of the following
functions:chanRoblesvirtualLawlibrary
1. Maintain and control vital documents and essential records to support the functions of the OP in its day to day
activities;
2. Monitor the flow of communications from their time of receipt up to their dispatch;
3. Service the documentary, information and reference requirements of top management and action officers of
the OP, and the reference and research needs of other government agencies and the general public;
4. Ensure the proper storage, maintenance, protection and preservation of vital and presidential documents, and
the prompt disposal of obsolete and valueless records;
5. Effect the prompt publication/dissemination of laws, presidential issuances and classified documents;
6. Provide computerized integrated records management support services for easy reference and retrieval of
data and information; and
7. To be able to represent the OP and OP officials in response to Subpoena Duces Tecum and Testificandum
served by courts and other investigating bodies.52
For purposes of verification of the appointment papers existence and authenticity, the appointment paper must
bear the security marks (i.e., handwritten signature of the President, bar code, etc.) and must be accompanied
by a transmittal letter from the MRO.
The testimony of Mr. Marianito Dimaandal, Director IV of the MRO, underscores the purpose of the release of
papers through his office.
55
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1) receive, record, and screen all
incoming correspondence, telegrams, documents, and papers; (2) follow up on correspondence forwarded to
entities outside the Office of the President (OP) to assure that prompt replies are made and copies thereof
furnished the OP; (3) timely dispatch all outgoing documents and correspondence; (4) have custody of records
of the OP, except personal papers of the President, and keep them in such condition as to meet the
documentary and reference requirements of the Office; (5) keep and maintain a filing and records system for
Acts, Memoranda, Orders, Circulars, correspondence, and other pertinent documents for ready reference and
use; (6) issue certified copies of documents on file as requested and in accordance with prevailing standard
operating procedures; (7) maintain and control vital documents and essential records to support the OP in its
day-to-day activities; (8) monitor the flow of communications from the time of receipt up to their dispatch; and
(9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of all documents emanating from Malacaang
pursuant to its mandate under Memorandum Order No. 1, Series of 1958. Is the MRO required to follow a
specific procedure in dispatching outgoing documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment paper signed by the President?
A: Yes. It is observed for the release of the original copy of the appointment paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of the original copy of the appointment paper signed
by the President?
A: After an appointment paper is signed by the President, the Office of the Executive Secretary (OES) forwards
the appointment paper bearing the stamp mark, barcode, and hologram of the Office of the President, together
with a transmittal letter, to the MRO for official release. Within the same day, the MRO sends the original copy of
the appointment paper together with the transmittal letter and a delivery receipt which contains appropriate
spaces for the name of the addressee, the date released, and the date received by the addressee. Only a
photocopy of the appointment is retained for the MROs official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?
A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35, Series of 2003 and
Memorandum Circular No. 133, Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents forwarded to the MRO for transmittal to various
offices?
A: No. We are mandated to immediately release all documents and correspondence forwarded to us for
transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is it officially released by the MRO to the
department or agency concerned?
A: The document is released within the day by the MRO if the addressee is within Metro Manila. For example, in
the case of the appointment paper of Dindo Venturanza, the OES forwarded to the MRO on March 12, 2010 his
original appointment paper dated February 23, 2010 and the transmittal letter dated March 9, 2010 prepared by
the OES. The MRO released his appointment paper on the same day or on March 12, 2010, and was also
received by the DOJ on March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or department within Malacaan without going
through the MRO?
A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot issue a
certified true copy of the same because as far as the MRO is concerned, it does not exist in our official records,
hence, not an official document from the Malacaang. There is no way of verifying the documents existence and
authenticity unless the document is on file with the MRO even if the person who claims to have in his possession
a genuine document furnished to him personally by the President. As a matter of fact, it is only the MRO which
is authorized to issue certified true copies of documents emanating from Malacaan being the official custodian
and central repository of said documents. Not even the OES can issue a certified true copy of documents
prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called gatekeeper of the Malacaang Palace. All incoming and outgoing
documents and correspondence must pass through the MRO. As the official custodian, the MRO is in charge of
the official release of documents.
Q: What if an appointment paper was faxed by the Office of the Executive Secretary to the appointee, is that
considered an official release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the appointment paper to the appointee. That
appointment paper is, at best, only an advanced copy.
Q: Assuming the MRO has already received the original appointment paper signed by the President together
with the transmittal letter prepared by the OES, you said that the MRO is bound to transmit these documents
immediately, that is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original appointment paper has already been forwarded
to the MRO, recalls the appointment and directs the MRO not to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO, was there any instance when it was
directed to recall the appointment and retrieve the documents already transmitted?
A: Yes, but only in a few instances. Sometimes, when the MRO messenger is already in transit or while he is
already in the agency or office concerned, we get a call to hold the delivery.
Q: You previously outlined the procedure governing the transmittal of original copies of appointment papers to
the agency or office concerned. Would you know if this procedure was followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure has been followed. However, it was unusually
disregarded when the appointments numbering more than 800 were made by then President Arroyo in March
2010. The MRO did not even know about some of these appointments and we were surprised when we learned
about them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than 800 persons in the month of March alone.
How were you able to determine this number?
A: My staff counted all the appointments made by then President Arroyo within the period starting January 2009
until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by then President Arroyo in the month of March
2010 compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the graphical representation thereof.
Q: If those documents will be shown to you, will you be able to recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of presidential appointees per month since January
2009 until June 2010, and a graphical representation thereof. Can you go over these documents and tell us the
relation of these documents to the ones you previously mentioned?
A: These are [sic] the Certification with the table of statistics I prepared after we counted the appointments, as
well as the graph thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010, how many appointment papers and transmittal
letters were released through the MRO?
56
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which were not released through the MRO but
apparently through the OES, there were portions on the stamp of the OES which supposedly indicated the date
and time it was actually received by the agency or office concerned but were curiously left blank, is this regular
or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt attached to the transmittal letter is filled
out completely because the dates when the original appointment papers were actually received are very
material. It is a standard operating procedure for the MRO personnel to ask the person receiving the documents
to write his/her name, his signature, and the date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers apparently released by the OES are
concerned, what is the actual date when the agency or the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were actually received because the date and time
were deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal letters or the appointment papers is the
actual date when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the person who received these documents did
not indicate the date and time when it was received because these details are very important. 53
The MROs exercise of its mandate does not prohibit the President or the Executive Secretary from giving the
appointment paper directly to the appointee. However, a problem may arise if an appointment paper is not
coursed through the MRO and the appointment paper is lost or the appointment is questioned. The appointee
would then have to prove that the appointment paper was directly given to him.
Dimaandals counsel made this manifestation about petitioners appointment papers and their
transmittal:chanRoblesvirtualLawlibrary
Your Honors, we respectfully request for the following markings to be made:ChanRoblesVirtualawlibrary
1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO VENTURANZA dated March 9,
2010 as Exhibit 2-F for the respondents;
B) The delivery receipt attached in front of the letter bearing the date March 12, 2010 as Exhibit 2-F-1;
C) The Appointment Paper of DINDO VENTURANZA dated February 23, 2010 as Exhibit 2-G for the
respondents;
2. A) The Transmittal Letter pertinent to the appointment of CHELOY E. VELICARIA-GARAFIL turned over to the
MRO on May 13, 2010 consisting of seven (7) pages as Exhibits 2-H, 2-H-1, 2-H-2, 2-H-3, 2-H-4, 2-H-
5, and 2-H-6 respectively for the respondents;
i. The portion with the name CHELOY E. VELICARIA- GARAFIL as State Solicitor II, Office of the Solicitor
General located on the first page of the letter as Exhibit 2-H-7;
ii. The portion rubber stamped by the Office of the Executive Secretary located at the back of the last page of
the letter showing receipt by the DOJ with blank spaces for the date and time when it was actually received as
Exhibit 2-H-8;
B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL dated March 5, 2010 as Exhibit 2-I for the
respondents;
xxxx
4. A) The Transmittal Letter pertinent to the appointment of EDDIE U. TAMONDONG dated 8 March 2010 but
turned over to the MRO only on May 6, 2010 consisting of two (2) pages as Exhibits 2-L and 2-L-1
respectively for the respondents;
(a) The portion with the name EDDIE U. TAMONDONG as Member, representing the Private Sector, Board of
Directors as Exhibit 2-L-2;
(b) The portion rubber stamped by the Office of the Executive Secretary located at the back of the last page of
the letter showing receipt by Ma. Carissa O. Coscuella with blank spaces for the date and time when it was
actually received as Exhibit 2-L-3;
xxxx
8. A) The Transmittal Letter pertinent to the appointments of x x x FRANCISCA BESTOYONG-ROSQUITA dated
March 8, 2010 but turned over to the MRO on May 13, 2010 as Exhibit 2-T for the respondents;
xxxx
(c) The portion with the name FRANCISCA BESTOYONG-ROSQUITA as Commissioner, Representing Region I
and the Cordilleras as Exhibit 2-T-3;
(d) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing receipt by
Masli A. Quilaman of NCIP-QC on March 15, 2010 as Exhibit 2-T-4;
xxxx
D) The Appointment Paper of FRANCISCA BESTOYONG- ROSQUITA dated March 5, 2010 as Exhibit 2-W for the
respondents;
9. A) The Transmittal Letter pertinent to the appointment of IRMA A. VILLANUEVA as Administrator for Visayas,
Board of Administrators, Cooperative Development Authority, Department of Finance dated March 8, 2010 as
Exhibit 2-X for the respondents;
(a) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing receipt by
DOF with blank spaces for the date and time when it was actually received as Exhibit 2-X-1;
B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010 as Exhibit 2-Y for the respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval Division of the MRO,
supports Dimaandals counsels manifestation that the transmittal of petitioners appointment papers is
questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State Solicitor II of the Office of the Solicitor
General, was her appointment paper released through the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely turned
over to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was already stamped
released by the Office of the Executive Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as member of the Board of Directors of Subic Bay
Metropolitan Authority, was her [sic] appointment paper released through the MRO?
A: No. His appointment paper dated March 1, 2010, with its corresponding transmittal letter, was merely turned
over to the MRO on May 6, 2010. The transmittal letter that was turned over to the MRO was already stamped
released by the Office of the Executive Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed as Commissioner of the National
Commission on Indigenous Peoples, representing Region 1 and the Cordilleras, was her appointment paper
released thru the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely turned
over to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was already stamped
released by the Office of the Executive Secretary and received on March 15, 2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as Administrator for Visayas of the Cooperative
Development Authority, was her appointment paper released thru the MRO?
57
A: No. Her appointment paper dated March 3, 2010, with its corresponding transmittal letter, was merely turned hand, petitioners admit that they took their oaths of office during the appointment ban.
over to the MRO on May 4, 2010. The transmittal letter that was turned over to the MRO was already stamped
released by the Office of the Executive Secretary, but the date and time as to when it was actually received Petitioners have failed to raise any valid ground for the Court to declare EO 2, or any part of it, unconstitutional.
were unusually left blank. Consequently, EO 2 remains valid and constitutional.

Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO. 55
The possession of the original appointment paper is not indispensable to authorize an appointee to assume
office. If it were indispensable, then a loss of the original appointment paper, which could be brought about by
negligence, accident, fraud, fire or theft, corresponds to a loss of the office.56 However, in case of loss of the
original appointment paper, the appointment must be evidenced by a certified true copy issued by the proper
office, in this case the MRO.
Vacant Position
An appointment can be made only to a vacant office. An appointment cannot be made to an occupied office. The
incumbent must first be legally removed, or his appointment validly terminated, before one could be validly
installed to succeed him.57chanrobleslaw
To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson) occupied the post of provincial fiscal of Negros
Oriental. He was later nominated and confirmed as provincial fiscal of Tarlac. The President nominated and the
Commission on Appointments confirmed Honorio Romero (Romero) as provincial fiscal of Negros Oriental as
Lacsons replacement. Romero took his oath of office, but Lacson neither accepted the appointment nor DAVIDE, JR., J.:
assumed office as provincial fiscal of Tarlac. This Court ruled that Lacson remained as provincial fiscal of Negros
Oriental, having declined the appointment as provincial fiscal of Tarlac. There was no vacancy to which Romero
could be legally appointed; hence, Romeros appointment as provincial fiscal of Negros Oriental vice Lacson was reinstate him to his former position as driver, Motorized Section of the Cebu City Police Department (CPD), with
invalid.
The appointment to a government post like that of provincial fiscal to be complete involves several steps. First,
comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on
Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the
appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer
of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary
step to make the appointment complete and effective rests solely with the appointee himself. He may or he may
not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, there is I. Per stipulation of facts:3
no power in this country which can compel a man to accept an office. Consequently, since Lacson has declined
to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues
as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully
removed as such fiscal of Negros Oriental.59
Paragraph (b), Section 1 of EO 2 considered as midnight appointments those appointments to offices that will
only be vacant on or after 11 March 2010 even though the appointments are made prior to 11 March 2010. EO 2
remained faithful to the intent of Section 15, Article VII of the 1987 Constitution: the outgoing President is
prevented from continuing to rule the country indirectly after the end of his term.
Acceptance by the Qualified Appointee
WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are DENIED, and the petition in G.R.
No. 209138 is DISMISSED. The appointments of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No. 203372),
Atty. Dindo G. Venturanza (G.R. No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No. 209138),
and Atty. Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We DECLARE that Executive Order No. 2
dated 30 July 2010 is VALID and CONSTITUTIONAL.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-26785 May 23, 1991
DEOGRACIAS A. REGIS, JR., petitioner,
vs.
SERGIO OSMEA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU, CITY TREASURER
AND CITY AUDITOR, respondents.
Basilio E. Duaban for petitioner.
This is an appeal from the Decision1 of the Court of First Instance of Cebu dated 28 December 1965 in Civil Case
No. R-8778, dismissing the petition for Mandamus filed on 9 March 1965 by petitioner to compel respondents to
back salaries from the date of his ouster until reinstatement, and to pay him moral and exemplary damages and
attorney's fees.2
The material operative facts in this case, as admitted by the parties in the stipulation of facts they submitted in
the court below and as established by the other evidence introduced by them pursuant to the reservations they
made in the stipulation of facts are as follows:
1. On January 8, 1958, petitioner was appointed by then Cebu City Mayor, Ramon Duterte, as
driver, Motorized Division of the Cebu Police Department, with a yearly compensation of P1,440.00,
as shown by a true copy of his appointment hereto attached and marked Annex "A";
2. On January 8, 1960, petitioner was issued another appointment as "driver" of the Cebu Police
Department, at an increased yearly compensation at P1,560.00, a true copy of which is hereto
attached and marked Annex "A-1";

Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount to
acceptance of the appointment.60 An oath of office is a qualifying requirement for a public office, a prerequisite 3 On December 21, 1961, petitioner was issued another appointment by then Cebu City Mayor
to the full investiture of the office.61chanrobleslaw Carlos J. Cuizon as "Driver, Civilian Employee" of the Cebu Police Department at the increased
yearly compensation of P1,920.00 a true copy of which is hereto attached and marked as Annex "A-
Javier v. Reyes62 is instructive in showing how acceptance is indispensable to complete an appointment. On 7 2";
November 1967, petitioner Isidro M. Javier (Javier) was appointed by then Mayor Victorino B. Aldaba as the
Chief of Police of Malolos, Bulacan. The Municipal Council confirmed and approved Javiers appointment on the
4. On November 7, 1963, petitioner was extended an appointment as "driver (Radio Patrol) Civilian
same date. Javier took his oath of office on 8 November 1967, and subsequently discharged the rights,
prerogatives, and duties of the office. On 3 January 1968, while the approval of Javiers appointment was Employee" of the Cebu Police Department at the increased yearly compensation of P2,040.00, true
pending with the CSC, respondent Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the CSC copy of which is marked as Annex "A-3";
a letter to recall Javiers appointment. Reyes also designated Police Lt. Romualdo F. Clemente as Officer-in-
Charge of the police department. The CSC approved Javiers appointment as permanent on 2 May 1968, and
5 On April 14, 1964, petitioner was removed from his position in the Cebu Police Department
even directed Reyes to reinstate Javier. Reyes, on the other hand, pointed to the appointment of Bayani
without prior investigation or hearing, the termination having been made in a letter of dismissal
Bernardo as Chief of Police of Malolos, Bulacan on 4 September 1967. This Court ruled that Javiers appointment
quoted as follows:
prevailed over that of Bernardo. It cannot be said that Bernardo accepted his appointment because he never
assumed office or took his oath.
REPUBLIC OF THE PHILIPPINES
Excluding the act of acceptance from the appointment process leads us to the very evil which we seek to avoid
CITY OF CEBU
(i.e., antedating of appointments). Excluding the act of acceptance will only provide more occasions to honor the
Office of the Mayor
Constitutional provision in the breach. The inclusion of acceptance by the appointee as an integral part of the
entire appointment process prevents the abuse of the Presidential power to appoint. It is relatively easy to
antedate appointment papers and make it appear that they were issued prior to the appointment ban, but it is
more difficult to simulate the entire appointment process up until acceptance by the appointee.

Petitioners have failed to show compliance with all four elements of a valid appointment. They cannot prove with April 14, 1964
certainty that their appointment papers were transmitted before the appointment ban took effect. On the other

58
 Mr. Deogracias A. Regis, Jr.
Driver, Cebu Police Department
Cebu City
Sir:
There being no more need for your service as Driver in the Cebu Police Department,
your provisional appointment thereto is hereby terminated effective April 16, 1964.
Please turn over any government property that may have been issued to you to the
proper property custodian and have yourself cleared of any accountability during the
period of your service.
Respectfully,
By order of the Mayor:
(SGD.) Vicente V. Pacifico Secretary to the Mayor
6. Petitioner is a civil service eligible, having passed the patrolman and/or detective
(qualified) civil service examination on July 20, 1963 with a rating of 76.85% as shown
in the attached copy of "Report of Ratings" marked Annex "B";
7. Petitioner is a fourth year student in the College of Liberal Arts in the University of the
Visayas as shown by the attached certification marked Annex "C";
8. The position of the petitioner, after his removal, was filled up by the respondent City
Mayor with the appointment of Eduardo Gabiana, a non-civil service eligible as shown in
his appointment hereto attached and marked Annex "D";
9. On August 20, 1964, after his removal, the petitioner addressed similarly worded
letters to the President of the Philippines and the Civil Service Commissioner, hereto
attached as Annexes "E" and "E-1", protesting and appealing his unlawful removal and
demanding his reinstatement. Under date of September 4, 1964, the Executive
Secretary to the President indorsed the above-mentioned letter to the Commissioner of
Civil Service, as shown in the first indorsement hereto attached as Annex "E-2". Since
the filing of the instant action, the petitioner has not been afforded the relief of
reinstatement by either the Office of the President of the Philippines or by the Civil
Service Commissioner.
Parties, however, will submit evidence to establish facts not herein stipulated.
Cebu City, August 20, 1965.
(SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN
(T) FERNANDO S. RUIZ (T) JOSE BATIQUIN
Attorney for the Assistant City Fiscal
Petitioner Counsel for the
2nd Floor, Aboitiz Respondents
Building Cebu City
Magallanes corner
Jakosalem
Cebu City
II. Per additional evidence formally adduced during the hearing:
10. Petitioner received his civil service eligibility for patrolman-detective on 8 March
1964, a photostatic of which was filed, for record purposes, with the clerk in charge of
the record section of the CPD on 12 March 1964 (Exhs. "F", "F-1"); his efficiency rating
is 88%, the highest among the drivers of the CPD he is the only civil service eligible
among the drivers in the CPD; after his ouster, the City of Cebu created positions of
drivers; and he attributed his ouster to politics, alleging that he was being suspected as
a supporter of the faction of then Congressman Durano, the political rival of respondent
Mayor Osmea;4and
11. The records of the Regional Office of the Civil Service Commission in Cebu City do
not show that petitioner possesses any civil service eligibility at the time he was
appointed as driver.5
This Court further observes that the actions of the Civil Service Commission on the appointments of
petitioner admitted in the Stipulation of Facts and attached thereto as Annexes "A", "A-1", "A-2" and
"A-3" were as follows:
1. Appointment dated 8 January 1958 Noted as temporary pending receipt of the
required medical certificate, subject to availability of funds and provided that there is no
pending administrative or criminal case against appointee and that the separation of the
former incumbent is in order;
2. Appointment dated 8 January 1960 Approved under Section 24(c) or R.A. No.
2260 as an exception to Section 256 of the Revised Administrative Code, and subject to
availability of funds;
3. Appointment dated 21 December 1961 Approved under Section 24(c) of R.A. No.
2260, subject to availability of funds and as exceptional case under Sec. 256 of the
Revised Administrative Code, provided there is no pending administrative or criminal
case against the appointee and provided that his efficiency rating for the semester
ending 6-30-61 is not below 85%; and
4. Appointment dated 7 November 1963Approved under Section 24(c) of R.A. No.
2260, subject to availability of funds and subject to Section 20 of R.A. No. 2260,
provided there is no pending administrative or criminal case against the appointee.
The last three appointments were for salary adjustments.
In its Decision of 28 December 1965, the court below dismissed the petition on the ground that
petitioner's questioned appointment was temporary in nature and, therefore, terminable at the
pleasure of the appointing power. Expounding on this, it says:
xxx xxx xxx
As for the first issue the answer is that his status at the time of his ouster on April 16,
1964 was that of temporary driver of the CPD. His appointments on January 8, 1958,
January 8, 1960, December 21, 1961 and on November 7, 1963 were all temporary in
nature. It is true that on March 5, 1964 the Civil Service Commission certified to his
having passed the patrolman/detective civil service examination with a rating of
75.85%, but said examination is not intended for or appropriate to, the position of
driver; hence, it did not convert his temporary status of driver to a permanent one.
(Sec. 8, Rule IV, Civil Service Rules.) Then again, the mere certification of the Civil
Service Commission of his civil service eligibility for patrolman/detective did not amount
to his appointment. The appointing power, the City Mayor, has the right of choice which
he may exercise freely according to his judgment, deciding for himself who is best
qualified for any competitive position in the Civil Service. The Civil Service Commission
does not ensure any appointment; it only certifies an eligible to be possessed of the
qualification, as required for a position classified under its rules. (Jimenez vs. General
Francisco, etc., et al., G.R. No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug. 15, 1957, p.
4804.)
The appointment of the petitioner being temporary or provisional in nature, the duration
of temporary appointment should not exceed six months. (Sec. 24, Rep. Act 226.) After
the expiration of said period, petitioner could have been removed at will by the
59
 appointment power; his continuance thereafter as a temporary employee was only an
extension of grace. (Jimenez vs. General Francisco, etc., et al., supra.)
Temporary appointment is similar to one made in an acting capacity, the essence of
which lies in its temporary character and its terminability at pleasure by the appointing
power. And one who bears such an appointment cannot complain if it is terminated at a
moment's notice. (Cuadra vs. Cordova, G.R. No. L-11602, April 21, 1958; Vol. 54 O.G.
Dec. 8, 1958, p. 8063.)6
Hence, this appeal.
In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition.7
In support thereof he argues that his removal on the ground that there was "no more need for your
service" was not real and true but a mere pretext, for after his ouster one Eduardo Gabiana, a non-
civil service eligible, was appointed to the vacated position and in the succeeding budget of the City
of Cebu more positions of driver were created; at the time of his ouster he was already a civil
service eligible, having passed the patrolman-detective (qualifying) civil service examination given in
July of 1963, and respondents knew of this fact. Moreover, said removal was not for cause, and it
was done without due process in violation of Section 32 of R.A. No. 2260 which provides that 44 no
officer or employee in the civil service shall be removed or suspended except for cause provided by
law and after due process."
Petitioner further argues that his last appointment of 7 November 1963 was approved under Section
24(c) of R.A. No. 2260; therefore, it was a provisional and not a temporary appointment as
erroneously classified by the court a quo. Republic Act No. 2260 makes a distinction between
provisional and temporary appointments. The former is governed by Section 24(c) while the latter is
covered by Section 24(d) thereof. According to him, his appointment was provisional because at the
time it was extended he was not yet a civil service eligible. He was still awaiting for the results of
the examination for patrolman-detective (qualifying) given by the Civil Service Commission in July of
1963; however, he received his report of rating on 8 March 1963 indicating that he passed it;
consequently, instead of dismissing him, the City Mayor should have extended to him a permanent
appointment inasmuch as he had already become a civil service eligible. In short, he claims that his
patrolman-detective eligibility is appropriate to his position considering the nature of his office prior
to his removal which authorized him to wear the uniform and badge of a regular member of the
Cebu Police Department, carry an official firearm, wear an ID as a regular member of the city police,
and to make arrests.
Finally, petitioner submits that as member of the Cebu City Police at the time of his removal, his
separation from the service could only be done under R.A. No. 557 under which the City Mayor can
only prefer charges but cannot remove.
Respondents filed their Brief after the expiration of the reglementary period. Upon motion of
petitioner dated 29 March 19678 this Court ordered their brief stricken off the record.9
We agree with the petitioner that the trial court erred in holding that his appointment is temporary
in nature. Obviously, the trial court failed to appreciate the clear distinction between a temporary
appointment and a provisional appointment. It had either confused one for the other or considered
one as synonymous with the other as shown in the opening sentence of the first paragraph of the
portions of the decision hereinbefore quoted wherein it categorized the appointment of petitioner as
"temporary or provisional in nature."
As correctly stated by petitioner, provisional appointments are governed by paragraph (c) of Section
24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of said Section.
For convenience We quote both paragraphs:
xxx xxx xxx
(c) Provisional appointments A provisional appointment may be issued upon prior
authorization of the Commissioner in accordance with the provisions of the Act and the
rules and standards promulgated in pursuance thereto to a person who has not qualified
in an appropriate examination but who otherwise meets the requirements for
appointment to a regular position in the competitive service, whenever a vacancy occurs
and the filling thereof is necessary in the interest of the service and there is no
appropriate register of eligibles at the time of appointment.
(d) Temporary appointment. A person may receive a temporary appointment to a
position needed only for a limited period not exceeding six months, provided that a
preference in filling such position be given to persons on appropriate eligible lists.
In Festejo vs. Barreras, et al., L-25074, 27 December 1969,10 We made a distinction between a
provisional appointment and temporary appointment thus:
xxx xxx xxx
There is no basis nor logic in appellants' contention that there is no difference between a
temporary appointment under Section 24(d) of the Civil Service Act which reads thus:
Temporary Appointment. A person may receive a temporary appointment
to a position needed only for a limited period not exceeding six months,
provided that preference in filing such position be given to persons on
appropriate eligible lists.
and a provisional appointment under Section 24(c) which says:
Provincial appointment. A provisional appointment may be issued upon
the prior authorization of the Commissioner in accordance with the
provisions of this Act and the rules and standards promulgated in pursuance
thereto to a person who has not qualified in an appropriate examination but
who otherwise meets the requirements for appointment to a regular position
in the competitive service, whenever a vacancy occurs and the filling thereof
is necessary in the interest of the service and there is no appropriate register
of eligibles at the time of appointment.
According to appellants, "while they may be different in the degree of permanence, in
that temporary appointments are generally for and within specified periods of time, their
nature as being subject to termination by the appointing power remains the same." Such
contention petition is untenable.
Even from a cursory reading of these two provisions, one can readily see that each of
them contemplates an entirely different situation from the other. Indeed, as pointed out
by His Honor, the trial judge, it is contrary to the ordinary rules of legal hermeneutics to
assume that the lawmakers intended these two separate provisions in a seemingly single
enumeration of categories of appointments to have the same import or significance.
Whereas a temporary appointment is designed to fill "a position needed only for a
limited period not exceeding six months, a provisional appointment, on the other hand,
is intended for the contingency that "a vacancy occurs and the filling thereof is
necessary in the interest of the service and there is no appropriate register of eligibles at
the time of appointment." In other words, the reason for extending a provisional
appointment is not because there is an occasional work or job to be done which is
expected to be finished in not more than six months but because the interest of the
service requires that certain work be done or functions be performed by a regular
employee, only that there is no one with appropriate eligibility, who can be appointed to
do it, hence any other eligible may be appointed to perform such work or functions in
the meanwhile that a suitable eligible does not qualify for the position. This is clearly
implied by the mandate of the provision that a provisional appointment may be extended
only to "a person who has not qualified in an appropriate examination but who otherwise
meets the requirements for appointment to a regular position in the competitive
service," meaning one who must anyway be a civil service eligible. On the other hand,
again, in the case of a temporary appointment, all that the law enjoins is that
"preference in filling such position be given to persons on appropriate eligible lists." And
merely giving preference, of course, presupposes that even a non-eligible may be
appointed. As a matter of fact, under this provision, even if the appointee has the
required civil service eligibility, his appointment is still temporary, simply because such
is the nature of the work to be done. The decisions cited by appellants are not in point.
60
 They all refer to temporary appointments as such. None of them involves a provisional
appointment like the one herein in question.
In Ata, et al. vs. Namocatcat, et al., L-39703, 30 October 1972,11 We further elaborated on the
distinction:
. . . A provisional appointment is one which may be issued, upon the prior authorization
of the Commissioner of Civil Service in accordance with the provisions of the Civil
Service Law and the rules and standards promulgated thereunder, to a person who has
not qualified in an appropriate examination but who otherwise meets the requirements
for appointment to a regular position in the competitive service, whenever a vacancy
occurs and the filling thereof is necessary in the interest of the service and there is no
appropriate register of eligibles at the time of appointment (Sec. 24(c), supra). On the
other hand, a temporary appointment given to a non-civil service eligible is without a
definite tenure of office and is dependent upon the pleasure of the appointing power."
(Citing Cuadra vs. Cordova, 103 Phil. 391; Pinullar vs. President of the Senate, 104 Phil.
131, 135).
As early as Piero, et al. vs. Hechanova, et al., L-22562, 22 October 1966,12 We held:
. . . Even in the case of those holding provisional or probationary appointments . . . the
invalidity thereof can not be declared unless it is first shown that there were appropriate
eligibles at the time they were appointed . . .
In Ferrer vs. Hechanova, L-24416, 25 January 1967,13 We held:
. . . A provisional appointment is good only until replacement by a civil service eligible
and in no case beyond thirty (30) days from the date of receipt by the appointing officer
of the certificate of eligibility (Sec. 24(c), R.A. 2260; Rule VI, Secs. 13 and 14, Revised
Civil Service Rules; Piero vs. Hechanova, supra).
In Ramos vs. Subido, L-26090, September 6, 1967,14 We ruled:
The position in question is under the classified service; Ramos accepted Ms latest
appointment thereto, dated July 1, 1963, without having the requisite appropriate civil
service eligibility for said position. Accordingly, his appointment can only be deemed
provisional and good only until replacement by one holding such appropriate eligibility,
in no case to extend more than thirty days from receipt of the appointing officer of the
list of eligibles (Ferrer vs. Hechanova, L-24418, January 25, 1967).
In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July 1971,15 We affirmed the decision of
the trial court holding that provisional appointments under Sec. 24(c) of R.A. No. 2260 can only by
terminated thirty days after receipt by the appointing power of a list of eligibles from the Civil
Service Commission.
In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972,16 We reiterated our rulings in Piero vs.
Hechanova, Ferrer vs. Hechanova, and Ramos vs. Subido.
Accordingly, since there was no certificate of civil service eligibility received by respondent City Mayor, the
provisional appointment of petitioner remained valid and subsisting. Prior to such receipt petitioner may only be
removed for cause as provided by law under Section 32 of R.A. No. 2260. That there was "no more need" for his
service was not a valid and lawful cause and even if it were so, it could not be availed of in this case since, as
admitted by the parties, immediately after the ouster a non-civil service eligible was appointed to replace
petitioner and more driver positions were included in the succeeding budget of the City of Cebu. These facts
negated the pretended basis for the dismissal. The real hidden cause was not that service of the nature and
character rendered by petitioner was no longer needed, but that petitioner had become unacceptable to the
appointing authority. Petitioner testified that his removal was politically motivated, he was suspected of
supporting the faction of Mr. Durano, a political enemy of respondent City Mayor. We are not inclined to give full
faith and credit to this testimony considering that this point was not even alleged in the petition.
We agree, however, with the court below that the patrolman-detective civil service eligibility of petitioner "is not
intended for or appropriate to the position of driver; hence, it did not convert his temporary [should be,
correctly, provisional] appointment of driver to a permanent one (Sec. 8, Rule IV, Civil Service Rules)."
Section 8, Rule IV of the Civil Service Rules provides:
xxx xxx xxx
Except as otherwise provided by law, eligibility in a certain examination shall serve as qualification
for appointment only to the position or positions for which examination was held and no horizontal
or vertical conversion of eligibility or examination rating shall be allowed.
xxx xxx xxx
In Police Commission vs. Lood, et al., L-34637, 24 February 1984,17 We ruled:
Under the civil service law then in force, the fact that private respondent subsequently became a
civil service eligible did not ipso facto render permanent the nature of his temporary appointment as
to make the question moot and academic.
Although this case refers to a temporary appointment, the rule laid down equally applies to a provisional
appointment.
This matter, however, had been subsequently categorically resolved in favor of holders of provisional
appointments by R.A. No. 6040, which took effect on 4 August 1969. Section 18 thereof provides:
. . . all provisional appointments made or appointments approved by the Civil Service Commission
under Section 24(C) of Republic Act Numbered Two thousand two hundred sixty prior to the
approval of this Act shall automatically be permanent under the provisions of Section twenty-four
(b) thereof as amended by this Act, subject to the provisions of Section 16(h) of said Act as herein
amended. (emphasis supplied).
Pursuant thereto, petitioner's provisional appointment of 7 November 1963 automatically became permanent
effective 4 August 1969.
We therefore rule that petitioner's dismissal was illegal and that he should be reinstated.
He should also be granted back salaries.
However, the award for back salaries should not be from the date of his dismissal until reinstatement. In similar
cases, We limited the award for a period of five (5) years.18
In Ginson vs. Municipality of Murcia, et al., We ruled:
Considering however, the lapse of time spanning almost twenty yearssince this controversy rose,
and considering the probability that the petitioner might have, in the interim, acquired a new
employment, we are constrained to grant her the payment of back salaries equivalent to five (5)
years without deduction or qualification. (Citing Laganapan vs. Asedillo, supra).
We likewise order her reinstatement, subject to the condition that she has not obtained any other
employment in Murcia municipal dentist or any position for which she is qualified by reason of civil
service eligibility and subject to the requisites of age and physical fitness. . . .
As to who of the respondents should pay the back salaries, We rule that only respondent City of Cebu should be
liable therefor. Respondent City of Cebu did not oppose the dismissal of petitioner and the appointment in his
stead of another whose salaries it thereafter paid. All respondents were represented by the Assistant City Fiscal
61
of Cebu City and interposed the same defenses.19 Moreover, after respondent Mayor Osmea vacated his office
his successor, Carlos J. Cuizon, without the objection on the part of the City of Cebu, filed a manifestation in the
court below to the effect that he adopted the position of his predecessor, Mayor Osmea, in respect to the
course of action taken against petitioner20 In short, respondent City of Cebu confirmed or ratified the action of
the Mayor.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the Decision appealed from the
ORDERING the respondent City of Cebu to (a) reinstate petitioner, subject to the condition that he has not
obtained any other employment, to his position under his appointment of 7 November 1963, or to any position
of equivalent rank, or for which he is qualified by reason of civil service eligibility and subject to the requisites of
age and physical fitness, (b) pay petitioner back salaries, at the rate last received by him, for a period of five (5)
years without qualification and deduction and with interest at the legal rate from the date of his illegal dismissal
until the same shall have been fully paid, and (c) pay the costs.
director inasmuch as he had top-billed the evaluation results of the DOH Selection Board, with Melendres tailing
behind in second place.[8]
It seems that the controversy started when petitioner and the other doctors and rank-and-file
employees at the LCP drafted a manifesto[9] which supposedly ventilated their collective dismay and
demoralization at Melendres appointment and leadership, and at some of his unjustified and questionable acts
as Executive Director of the LCP. In a nutshell, the said manifesto boldly exposed the alleged anomalous
circumstances surrounding Melendres appointment; the reassignment of some of the members of the LCP
personnel which amounted to demotion in their rank and status; the anomalies in the procurement of property
and supplies; his abusive conduct in publicly accusing some of the doctors of having caused the fire that gutted
the center in May 1998; in accusing Zaldivar of having entered into anomalous contracts and negotiations with
the DPWH relative to certain projects; and in practicing favoritism and nepotism. The tenor of the manifesto
even went as far as to be deeply personal as it likewise questioned Melendres fitness to act as executive director
on the ground of his previous brush with substance abuse and the fact that he could no longer keep his
marriage from failing.[10]

SO ORDERED. The seriousness of these allegations led the DOH to create a Fact-finding Committee to conduct an
investigation.[11] But at the proceedings before the said Committee, Melendres filed charges of dishonesty and
double compensation against petitioner alleging that the latter had been engaging in the private practice of
medicine within the LCPs premises during official hours.[12] At the close of the investigation, the Fact-finding
Committee issued a report declaring Melendres guilty of the charges against him. [13] As for petitioner, the
EN BANC Committee absolved him of the charge of receiving double compensation, but nevertheless found him guilty of
having committed dishonesty by engaging in the private practice of his profession during the hours that he
JOSE PEPITO M. AMORES, M.D., G.R. No. 170093 should be engaging in public service in violation of the Civil Service Law. [14]
Petitioner, Present:
PUNO, C.J., Petitioner was caught by surprise when, on August 27, 2002, he received a letter from the LCP
QUISUMBING, Board of Trustees informing him of his separation from service as Deputy Director effective September 30,
YNARES-SANTIAGO, 2002.[15] To the said letter was attached a copy of the Boards Resolution [16] dated August 23, 2002, principally
CARPIO, directing petitioners termination from service after consultation with the Career Executive Service Board (CES
AUSTRIA-MARTINEZ, Board).[17] Petitioner brought an appeal from the resolution to the Civil Service Commission (CSC).[18]
- versus - CORONA,
CARPIO MORALES, Resolving the appeal, the CSC declared that the LCP Board of Trustees had properly and validly
TINGA, separated petitioner from his post as Deputy Director. In its Resolution No. 031050,[19] the CSC declined to pass
CHICO-NAZARIO, upon the charge of dishonesty on the ground of pre-maturity as the issue had not yet been finally determined in
VELASCO, JR., a proper proceeding and the Board had not yet in fact made a definite finding of guilt from which petitioner
NACHURA, might as a matter of course appeal.[20] However, it pointed out that petitioners separation from service was
LEONARDO-DE CASTRO, anchored on his lack of a CES eligibility which is required for the position of deputy director and, as such, he
CIVIL SERVICE COMMISSION, BOARD OF BRION, enjoyed no security in his tenure.[21]
TRUSTEES OF THE PERALTA, and Petitioner lodged an Appeal [22] with the Court of Appeals. However, it was dismissed and CSC
LUNG CENTER OF THE PHILIPPINES, as BERSAMIN, JJ. Resolution No. 031050 was affirmed.[23]
represented by Hon. MANUEL M. DAYRIT, and Promulgated:
FERNANDO A. MELENDRES, M.D., This present petition for review imputes error to the Court of Appeals. First, in missing the fact that
Respondents. April 29, 2009 petitioner had been denied due process when his separation from office was ordered on a ground not raised
x--------------------------------------------------x before the DOH Fact-finding Committee[24] and, second, in failing to appreciate the fact that his rights to equal
protection had likewise been violated inasmuch as he was similarly situated with other department managers in
the LCP who had no CES eligibility but who, however, had not been separated from service. [25] He theorizes that
DECISION his right to security of tenure had been breached and that he was entitled to remain as deputy director because
his promotion to the said position supposedly issued by Zaldivar which was a recognition of his competence was
PERALTA, J.: permanent in character.[26]

In this petition for review under Rule 45 of the Rules of Court, petitioner Jose Pepito M. Amores
assails the Decision[1] of the Court of Appeals in CA-G.R. SP No. 80971, dated September 23, 2004, as well as
its Resolution[2] dated September 20, 2005 which denied reconsideration. The assailed Decision affirmed the
October 14, 2003 Resolution[3] of the Civil Service Commission which, in turn, ordered petitioners separation
from service as Deputy Director for Hospital Support Services at the Lung Center of the Philippines on account of
his lack of the necessary civil service eligibility.
Well established are the facts of the case.
Petitioner Jose Pepito M. Amores was the Deputy Director for Hospital Support Services at
the Lung Center of the Philippines (LCP). His civil service career began in 1982 when he was initially engaged at
the LCP as a resident physician.[4] In the course of his service, he had been promoted to the position of Medical
Specialist,[5] then to Department Manager,[6] and finally to Deputy Director. Dr. Calixto Zaldivar was then the
Executive Director of the LCP and when he retired from service in 1999, petitioner was designated as officer-in-
charge of the LCP by the Department of Health (DOH) Secretary Alberto Romualdez, Jr. [7]
Petitioner had taken charge of the LCP in the interim that the DOH selection board was in the
process of selecting a new executive director. In the meantime, Dr. Fernando Melendres (Melendres), one of the
respondents in this case, was appointed by then President Joseph Estrada as Executive Director of the
LCP. Melendres was holding the office of the Deputy Director for Medical Support Services before his
appointment as Executive Director, and although petitioner claims that he was not challenging Melendres right
to the office, he nevertheless believed that he himself was the rightful person to be appointed as executive
The LCP, the CSC and the DOH, all represented by the Office of the Solicitor General, and Melendres,
are one in asserting that there can be no question as to the validity of petitioners removal from office for the
basic fact that he enjoyed no security of tenure on account of his lack of eligibility. In his Comment[27] on the
petition, Melendres capitalizes on the fact that the LCP Board of Trustees arrived at the resolution to separate
petitioner from service upon consultation with the CES Board and the CSC; thus, concludes Melendres, it can
only be surmised that the cause for the removal of petitioner from office is actually his lack of eligibility and not
his commission of dishonesty. The LCP, for its part, is more to the point. It posits that petitioners separation
from office did not result from an administrative disciplinary action, but rather from his failure to qualify for the
office of Deputy Director on account of lack of eligibility. For their part, the CSC and the DOH characterizes
petitioner as a third-level appointee who, again, must be in possession of the corresponding third-level
eligibility; but since petitioner has none, then he enjoys no security of tenure and may thus be removed at a
moments notice even without cause.
There is merit in the arguments of respondents.
What at the outset weighs heavily on petitioners case is the fact that the position of Deputy Director
for Hospital Support Services at the LCP belongs to the career executive service appointments to which by law
require that the appointees possess the corresponding CES eligibility. Petitioner, however, does not profess that
at any time he was holding the said position he was able to acquire the required eligibility therefor by taking the
CES examinations and, subsequently, conferred such eligibility upon passing the said examinations. In fact, no
slightest suggestion can be derived from the records of this case which would tend to show that in his entire
tenure at the LCP he, at any given point, had been conferred a CES eligibility. It is thus as much surprising as it

62
is absurd why petitioner, despite the limitations in his qualifications known to him, would insist that he had
served as Deputy Director at the LCP in a permanent capacity.
We begin with the precept, firmly established by law and jurisprudence, that a permanent
appointment in the civil service is issued to a person who has met the requirements of the position to which the
appointment is made in accordance with law and the rules issued pursuant thereto. [28] An appointment is
permanent where the appointee meets all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the
requirements for the position except only the appropriate civil service eligibility.[29]
Under Section 7[30] of the Civil Service Law,[31] positions in the civil service are classified into open
career positions, closed career positions and positions in the career service. In turn, positions in the career
service are tiered in three levels as follows:
SECTION 8. Classes of Positions in the Career Service. - (1) Classes of
positions in the career service appointment to which requires examinations which shall
be grouped into three major levels as follows:
(a) The first level shall include the clerical,
trades, crafts and custodial service positions which involve non-
professional or subprofessional work in a non-supervisory or
supervisory capacity requiring less than four years of collegiate
studies;
(b) The second level shall include
professional, technical and scientific positions which involve
professional, technical or scientific work in a non-supervisory or
supervisory capacity requiring at least four years of college work
up to the Division Chief level; and
(c) The third level shall cover positions in
the Career Executive Service.
With particular reference to positions in the career executive service (CES), the requisite civil service
eligibility is acquired upon passing the CES examinations administered by the CES Board and the subsequent
conferment of such eligibility upon passing the examinations.[32] Once a person acquires eligibility, he either
earns the status of a permanent appointee to the CES position to which he has previously been appointed, or he
becomes qualified for a permanent appointment to that position provided only that he also possesses all the
other qualifications for the position.[33]Verily, it is clear that the possession of the required CES eligibility is that
which will make an appointment in the career executive service a permanent one. Petitioner does not possess
such eligibility, however, it cannot be said that his appointment to the position was permanent.
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions
in the government[34] in the absence of appropriate eligibles and when there is necessity in the interest of public
service to fill vacancies in the government.[35] But in all such cases, the appointment is at best merely
temporary[36] as it is said to be conditioned on the subsequent obtention of the required CES eligibility. [37] This
rule, according to De Leon v. Court of Appeals,[38]Dimayuga v. Benedicto,[39] Caringal v. Philippine Charity
Sweepstakes Office,[40]and Achacoso v. Macaraig,[41] is invariable even though the given appointment may have
been designated as permanent by the appointing authority.
We now come to address the issue of whether petitioners separation from service violated his right
to security of tenure.
Security of tenure in the career executive service, which presupposes a permanent appointment,
takes place upon passing the CES examinations administered by the CES Board. It is that which entitles the
examinee to conferment of CES eligibility and the inclusion of his name in the roster of CES eligibles. [42]Under
the rules and regulations promulgated by the CES Board, conferment of the CES eligibility is done by the CES
Board through a formal board resolution after an evaluation has been done of the examinees performance in the
four stages of the CES eligibility examinations. Upon conferment of CES eligibility and compliance with the other
requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the President upon the Boards recommendation. It is this process
which completes the officials membership in the CES and confers on him security of tenure in the
CES.[43] Petitioner does not seem to have gone through this definitive process.
At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper
CES eligibility and therefore had not held the subject office in a permanent capacity, there could not have been
any violation of petitioners supposed right to security of tenure inasmuch as he had never been in possession of
the said right at least during his tenure as Deputy Director for Hospital Support Services. Hence, no challenge
may be offered against his separation from office even if it be for no cause and at a moments notice. [44] Not
even his own self-serving claim that he was competent to continue serving as Deputy Director may actually and
legally give even the slightest semblance of authority to his thesis that he should remain in office. Be that as it
may, it bears emphasis that, in any case, the mere fact that an employee is a CES eligible does not
automatically operate to vest security of tenure on the appointee inasmuch as the security of tenure of
employees in the career executive service, except first and second-level employees, pertains only to rank and
not to the office or position to which they may be appointed.[45]
Anent the other issues raised in this petition, we find the same to be merely petitioners last-ditch
attempts, futile as they are, to remain in office. Suffice it to say that no further good may be served in
needlessly expounding on them.
All told, we reiterate the long-standing rule that the mere fact that a particular position belongs to
the career service does not automatically confer security of tenure on its occupant. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who
does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as
an exception to the rule, may be appointed to it in an acting capacity in the absence of appropriate eligibles. [46]
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No.
80971, dated September 23, 2004, affirming Resolution No. 031050 of the Civil Service Commission,
dated October 14, 2003, is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.
CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of
this case may be briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino
Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission
approved it as "temporary," subject to the final action taken in the protest filed by the private respondent and
another employee, and provided "there (was) no pending administrative case against the appointee, no pending
protest against the appointment nor any decision by competent authority that will adversely affect the approval
of the appointment." 2 On March 22, 1984, after protracted hearings the legality of which does not have to be
decided here, the Civil Service Commission found the private respondent better qualified than the petitioner for
the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the position of
Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment
as Administrative Officer II is hereby revoked."3 The private respondent was so appointed on June 28, 1984, by
the new mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now
before us to question that order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment
on the ground that another person is better qualified than the appointee and, on the basis of this finding, order
his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the
instant case because his appointment was temporary and therefore could be withdrawn at will, with or without
cause. Having accepted such an appointment, it is argued, the petitioner waived his security of tenure and
consequently ran the risk of an abrupt separation from his office without violation of the Constitution. 5
While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The
argument begs the question. The appointment of the petitioner was not temporary but permanent and was
therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the
right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it temporary.
63
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which
was clearly described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18,
1983. 7 What was temporary was the approval of the appointment, not the appointment it sell And what made
the approval temporary was the fact that it was made to depend on the condition specified therein and on the
verification of the qualifications of the appointee to the position.
The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by
the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the
requirements of the Civil Service Law. When the appointee is qualified and authorizing the other legal
requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with
the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in
the official vested by law with the appointing power and not the Civil Service
Commission. The Commissioner of Civil Service is not empowered to determine the kind
or nature of the appointment extended by the appointing officer. When the appointee is
qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to
the appointment. Under the Civil Service Law, Presidential Decree No. 807, the
Commissioner is not authorized to curtail the discretion of the appointing official on the
nature or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is
qualified for the position to which he has been named. As we have repeatedly held, such attestation is required
of the Commissioner of Civil Service merely as a check to assure compliance with Civil Service Laws. 9
Appointment is an essentially discretionary power and must be performed by the officer in which it is vested
according to his best lights, the only condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred. This is a political question involving considerations of wisdom which
only the appointing authority can decide.
It is different where the Constitution or the law subjects the appointment to the approval of another officer or
body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of
the Philippines had to be confirmed by that body and could not be issued or were invalidated without such
confirmation. In fact, confirmation by the Commission on Appointments was then considered part of the
appointing process, which was held complete only after such confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to
refuse to concur with it even if the President's choice possessed all the qualifications prescribed by law. No
similar arrangement is provided for in the Civil Service Decree. On the contrary, the Civil Service Commission is
limited only to the non-discretionary authority of determining whether or not the person appointed meets all the
required conditions laid down by the law.
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service
Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is
provided therein that the Commission shag have inter alia the power to:
9(h) Approve all appointments, whether original or promotional to positions in the civil
service, except those presidential appointees, members of the Armed Forces of the
Philippines, police forces, firemen, and jailguards, and disapprove those where the
appointees do not possess appropriate eligibility or required qualifications. (emphasis
supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear that all the
Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil
service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved.
No other criterion is permitted by law to be employed by the Commission when it acts on--or as the Decree
says, "approves" or "disapproves" an appointment made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent
were qualified for the position in controversy. 12 That recognition alone rendered it functus officio in the case and
prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure,
it had no authority to revoke the said appointment simply because it believed that the private respondent was
better qualified for that would have constituted an encroachment on the discretion vested solely in the city
mayor.
In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V,
Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that "whenever there are two
or more employees who are next-in-rank, preference shall be given to the employee who is most competent and
qualified and who has the appropriate civil service eligibility." This rule is inapplicable, however, because neither
of the claimants is next in rank. Moreover, the next-in-rank rule is not absolute as the Civil Service Decree
allows vacancies to be filled by transfer of present employees, reinstatement, re-employment, or appointment of
outsiders who have the appropriate eligibility. 13
There are apparently no political overtones in this case, which looks to be an honest contention between two
public functionaries who each sincerely claims to be entitled to the position in dispute. This is gratifying for
politics should never be permitted to interfere in the apolitical organization of the Civil Service, which is
supposed to serve all the people regardless of partisan considerations. This political detachment will be impaired
if the security of tenure clause in the Constitution is emasculated and appointments in the Civil Service are
revoked and changed at will to suit the motivations and even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside,
and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent
appointment thereto dated February 18, 1983. No costs.
SO ORDERED.
EN BANC
[G.R. No. L-8684. March 31, 1955.]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. HONORABLE DOMINGO IMPERIAL and HONORABLE
RODRIGO D. PEREZ, Respondents.
Solicitor General Ambrosio Padilla and First Assistant Solicitor General Guillermo Torres
for Petitioner.
Chairman Domingo Imperial and Commissioner Rodrigo D. Perez, of the Commission on Elections in
their own behalf.
Quintin Paredes as amicus curiae.
SYLLABUS
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS, NOW A CONSTITUTIONAL BODY. The constitutional
amendment establishing an independent Commission on Elections (Article X) became operative on December 2,
1940, superseding the purely statutory Commission previously created and organized along the same lines by
Commonwealth Act No. 607.
2. ID.; ID.; REGULAR ROTATION OR CYCLE IN ITS MEMBERSHIP. The provision that of the first three
commissioners appointed "one shall hold office for 9 years, another for 6 years, and the third for 3 years," when
taken together with the prescribed term of office for 9 years, without reappointment, evidences a deliberate plan
to have a regular rotation or cycle in the membership of the commission, by having subsequent members
appointable only once every three years. This had already been indicated in previous opinions of the Supreme
Court (Nacionalista Party v. Angelo Bautista, 47 Off. Gaz., 2356; Nacionalista Party v. Vera, 47 Off. Gaz., 2375),
where it was declared that "with these periods it was the intention to have one position vacant every three
years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the
independence and impartiality of the Commission" as a body for the impartiality and independence of such
individual Commissioners tenure was safeguarded by other provisions in the same Article X of the fundamental
charter. Now, the operation of the rotational plan requires two conditions, both indispensable to its workability:
(1) that the terms of the first three commissioners should start on a common date, June 21, 1941; and (2) that
any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for
the unexpired balance of the term. Without satisfying these conditions, the regularity of the intervals between
64
appointments would be destroyed, and the evident purpose of the rotation (to prevent that a four-year
administration should appoint more than one permanent and regular commissioner) would be frustrated.
DECISION
REYES, J.B.L., J.:
This is a quo warranto proceeding instituted by the Solicitor General against Honorable Domingo Imperial and
Honorable Rodrigo Perez, to test the legality of their continuance in office as Chairman and Member,
respectively, of the Commission on Elections.
According to the Solicitor General, the first commissioners of Elections were duly appointed and qualified on July
12, 1945, with the following terms of office:chanrob1es virtual 1aw library
Hon. Jose Lopez Vito, Chairman, for 6 years, expiring on July 12, 1954
Hon. Francisco Enage, Member, for 6 years, expiring on July 12, 1951
Hon. Vicente Vera, Member, for 3 years, expiring on July 12, 1948;
that upon the death of Chairman Jose Lopez Vito in May, 1947, Member Vicente de Vera was promoted
Chairman by appointment dated May 26, 1947; that in accordance with the ruling of this Court in Nacionalista
Party v. Vera, 47 Off. Gaz., 2375, and Nacionalista Party v. Felix Angelo Bautista, 47 Off. Gaz., 2356, the term
of office of Chairman De Vera would have expired on July 12, 1954, that is, the date when the term of office of
the first Chairman, Honorable Jose Lopez Vito, would have expired; that Chairman Vicente de Vera died in
August, 1951, before the expiration of the maximum term of nine years (on July 12, 1954) of the first Chairman
of the Commission; that on August 11, 1951, the respondent Honorable Domingo Imperial was appointed
Chairman to succeed Honorable Vicente de Vera; that while the appointment of the respondent Honorable
Imperial provided that he was to serve "for a term expiring July 12, 1960", the term for which he could legally
serve as Chairman legally expired on July 12, 1954, that is, the expiration of the nine-year term for which the
first Chairman, Honorable Jose Lopez Vito, was appointed; that the respondent Honorable Rodrigo Perez was
appointed Member of the Commission on December 8, 1949, for "a term of nine years expiring on November 24,
1958", vice Honorable Francisco Enage, who was retired on November, 1949; that the term of office of
respondent Perez legally expired on July 12, 1951, the expiration of the term of six years for which
Commissioner Enage, his predecessor, was appointed. Wherefore, the Solicitor General concludes that the
respondents Commissioners Imperial and Perez have ceased to have any legal or valid title to the positions of
Chairman and Member, respectively, of the Commission on Elections, and that therefore, their positions should
be declared vacant.
The respondents filed separate answer to the petition for quo warranto, both of which pray for the dismissal of
the petition.
The defense of respondent Honorable Domingo Imperial is substantially that Honorable Jose Lopez Vito was first
appointed Chairman of the Commission on Elections on May 12, 1941, for a term of nine years expiring on May
12, 1950; that when Commissioner Lopez Vito was again appointed Chairman on July 12, 1945, his nine-year,
term of office under this second appointment should not be reckoned from the date thereof, that is, July 12,
1945, but from the date of his first appointment in 1941, so that the term under his second appointment expired
on May 12, 1950; that respondent Imperial having been appointed after the expiration of Chairman Lopez Vitos
full term of nine years in 1950, he (respondent Imperial) should serve office for a full term of nine years, ending
only on August 10, 1960. Respondent Imperial stresses the unconstitutionality of Chairman Lopez Vitos second
appointment to serve up to July 12, 1954, upon the ground that under the Constitution, he (Chairman Lopez
Vito) could neither be appointed for more than nine years nor be allowed to succeed himself.
The other respondent, Honorable Rodrigo Perez, alleges that since Chairman Lopez Vito was the first to be
appointed under the Constitution on May 13, 1941, the terms of office of all the Commissioners on Election
should be reckoned from that date, May 13, 1941, to maintain the three-year difference between the dates of
expiration of their respective terms as provided for by the Constitution; that the term of office of Member
Francisco Enage (his predecessor) should therefore be considered as having started on May 13, 1941, and since
Enage was appointed only for six years, his term of office expired on May 12, 1947; and that since respondent
Perez was appointed (on December 8, 1949) after Commissioner Enages six-year term of office had already
expired, he should serve for a full term of nine years from the expiration of Enages term of office on May 12,
1947; hence, his own term of office would expire only on May 12, 1956. Respondent Perez argues that if the
computation of the Solicitor General were to be followed, that is, that Commissioner Enages term be counted
from July 12, 1945 ending on July 12, 1951, this term would end at a date very close to the expiration of
Commissioner Lopez Vitos term on May 12, 1950, so there would be only a difference of fourteen months
between the expiration of the terms of office of Commissioners Lopez Vito and Enage, a situation which is
contrary to and violative of the Constitution that prescribes a difference of three years between the dates of the
expiration of the terms of the Members of the Commission.
The issues now posed demand a re-examination and application of the Constitutional amendment establishing
an independent Commission on Elections (Article X) that became operative on December 2, 1940, superseding
the purely statutory Commission previously created and organized along the same lines by Commonwealth Act
No. 607. While this Court already had occasion to make pronouncements on the matter in previous decisions,
the same are not considered decisive in view of the divergence of opinions among the members of the Court at
the time said decisions were rendered.
Section 1, paragraph 1, of Article X of the Constitution reads as follows:jgc:chanrobles.com.ph
"SEC. 1. There shall be an independent Commission on Elections composed of a Chairman and two other
Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold
office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed,
one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the
other Members of the Commission on Elections may be removed from office only by impeachment in the manner
provided in this Constitution."cralaw virtua1aw library
The provision that of the first three commissioners appointed, "one shall hold office for 9 years, another for 6
years, and the third for 3 years," when taken together with the prescribed term of office for 9 years, without
reappointment, evidences a deliberate plan to have a regular rotation or cycle in the membership of the
commission, by having subsequent members appointable only once every three years, This had already been
indicated in previous opinions of this Court (Nacionalista Party v. Angelo Bautista, 1 47 Off. Gaz., 2356;
Nacionalista Party v. Vera, 2 47 Off. Gaz., 2375), where it was declared that "with these periods it was the
intention to have one position vacant every three years, so that no President can appoint more than one
Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission" as a
body, we may add, for the impartiality and independence of each individual Commissioners tenure was
safeguarded by other provisions in the same Article X of the fundamental charter (removability by impeachment
alone, and stability of compensation in sec. 1; disability to practice any profession and prohibition of conflicting
interest in sec. 3).
That the rotation of the Commissioners appointments at regular and fixed intervals of three years was a
deliberate plan is shown by the history of the provision, and by selection of the fixed term of nine years for all
subsequent appointees, since no other term would give such a result. Initiated under Commonwealth Act No.
607, the rotation plan was transferred without variation to the Constitution, evidently for the purpose of
preserving it from hasty and irreflexive changes.
Now, the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that
the terms of the first three commissioners should start on a common date; and (2) that any vacancy due to
death, resignation or disability before the expiration of the term should only be filled only for the unexpired
balance of the term. Without satisfying these conditions, the regularity of the intervals between appointments
would be destroyed, and the evident purpose of the rotation (to prevent that a four-year administration should
appoint more than one permanent and regular commissioner) would be frustrated.
While the general rule is that a public officers death or other permanent disability creates a vacancy in the
office, so that the successor is entitled to hold for a full term, such rule is recognized to suffer exception in those
cases where the clear intention is to have vacancies appointments at regular intervals. Thus, in 43 Amer.
prudence, sec. 159, p. 18, it is stated:jgc:chanrobles.com.ph
". . . In like manner, it has been ruled that the resignation or the removal of an officer during his term and the
election or appointment of a successor do not divide the term or create a new and distinct one, and that in such
a case the successor is filling out his predecessors term. It seems the term of office of one elected or appointed
to fill a vacancy in a board of several officers will be held to be for the unexpired term of his predecessor only,
where the clear intent of the creating power is that the entire board should not go out of office at once, but that
different groups should retire at regularly recurring intervals." (Italics supplied)
In State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 LRA 643, the Court, discussing provisions
in the charter of the city of Bridgeport requiring two city Commissioners to serve for 2 years, and another two to
serve for 4 years, said:jgc:chanrobles.com.ph
". . . The evident intent of section 50 is to secure to the city at all times, so far as possible, the services of
commissioners, half of whom have had the benefit of at least a years experience in office, and to divide the
membership of each half equally between the leading political parties. Parmater v. State, 102 Ind. 90, 93. Such
a board had existed in Bridgeport since 1868. The charter of that year provided for the election of two
commissioners to serve for one year, and two for two years, and for the annual election thereafter of two to
serve for two years, and secured a nonpartisan character to the board by allowing no one to vote for more than
two out of the four, and requiring the election of deputy commissioners to replace each elected commissioner in
case of a vacancy. From that time until the resignation of the entire board, in December, 1890, its membership
had been annually renewed by the appointment of two commissioners for a term of two years, each belonging
to a different political party from the other. Were the contention of the defendant well founded, the successors
of the four commissioners who resigned in December, 1890, should have been, and in law were, appointed each
for two-year term, thus totally and forever frustrating the carefully devised scheme of alternating succession
which had been followed for twenty years." (Cas. Cit., 22 LRA, 669)
65
The following cases also support the rule:jgc:chanrobles.com.ph
"When the Constitution fixes the duration of a term of office, and at the same time provides for its being filled at
a fixed time occurring periodically, it necessarily follows that, a casual vacancy occurring during such term of
office, necessity must arise for filling it for the unexpired term; and although the mode of filling such vacancy is
prescribed by the Constitutional, yet the incumbent only holds until the time arrives for filling the office in the
regular mode and at the regular time prescribed by the Constitution." (Simpson v. Willard, 14 S. C. 191).
And in Baker v. Kirk, 33 Ind. 517, it was held that the term of office of one appointed to fill a vacancy in one of
three memberships of a board will, in the absence of any express provision therefore, be deemed to be for the
unexpired term, where the statute fixes the first term at unequal lengths, so as to prevent an entire change of
membership at any one time. In speaking of the reasoning to the contrary, the court said: "It would make the
term of office to depend upon the pleasure or caprice of the incumbent, and not upon the will of the legislature
as expressed in plain and undoubted language in the law. This construction would defeat the true intent and
meaning of the legislature, 50 LRA. (N. S.) , which was to prevent an entire change of the board of directors of
the prison."cralaw virtua1aw library
Other cases to the same effect are collated in the editorial note in State Ex. Rel. Fish v. Howell, 50 L. R. A. (N.
S.) , 345.
The fact that the orderly rotation and renovation of Commissioners would be wrecked unless, in case of early
vacancy, a successor should only be allowed to serve for the unexpired portion of each regular term, sufficiently
explains why no express provision to that effect is made in Article X of the Constitution. The rule is so evidently
fundamental and indispensable to the working of the plan that it became unnecessary to state it in so many
words. The mere fact that such appointments would make the appointees serve for less than 9 years does not
argue against reading such limitation into the constitution, because the nine-year term cannot be lifted out of
context and independently of the provision limiting the terms of the terms of the first commissioners to nine, six
and three years; and because in any event, the unexpired portion is still part and parcel of the preceding term,
so that in filling the vacancy, only the tenure of the successor is shortened, but not the term of office.
It may be that the appointing power has sufficient inducements at hand to create vacancies in the Commission,
and find occasion for appointments thereto, whenever it chooses to do so. That possibility, however, would not
in any way justify this Court in setting at naught the clear intention of the Constitution to have members of
Commission appointed at regular 3-year intervals.
It is argued that under the rule, one may be appointed for a much shorter term than nine years, say one year or
even less, and his independence would be thereby reduced. The point is, however, that the majority of the
Commission would not be affected (slave in really exceptional cases) and independence of the majority is the
independence of the whole Commission.
For the same reasons it must be admitted that the terms of the first three Commissioners should be held to
have started at the same moment, irrespective of the variations in their dates of appointment and qualification,
in order that the expiration of the first terms of nine, six and three years should lead to the regular recurrence
of the three-year intervals between the expiration of the terms. Otherwise, the fulfillment and success of the
carefully devised constitutional scheme would be made to depend upon the willingness of the appointing power
to conform thereto.
It would be really immaterial whether the terms of the first Commissioners appointed under the Constitutional
provision should be held to start from the approval of the constitutional amendment (December 2, 1940), the
reorganization of the Commission under C. A. 657, on June 21, 1941, or from the appointment of the first
Chairman, Honorable Jose Lopez Vito, on May 13, 1941. The point to be emphasized is that the terms of all
three Commissioners appointed under the Constitution began at the same instant and that, in case of a belated
appointment (like that of Commissioner Enage), the interval between the start of the term and the actual
qualification of the appointee must be counted against the latter. No other rule could satisfy the constitutional
plan.
Of the three starting dates given above, we incline to prefer that of the organization of the constitutional
Commission on Elections under Commonwealth Act 657, on June 21, 1941, since said act implemented and
completed the organization of the Commission that under the Constitution "shall be" established. Certainly the
terms can not begin from the first appointments, because appointment to a Constitution office is not only a
right, but equally a duty that should not be shirked or delayed. On the basic tenets of our democratic
institutions, it can hardly be conceded that the appointing power should possess discretion to retard compliance
with its constitutional duty to appoint when delay would impede or frustrate the plain intent of the fundamental
law. Ordinarily, the operation of the Constitution can not be made to depend upon the Legislature or the
Executive, but in the present case the generality of the organizational lines under Article X seems to envisage
prospective implementation.
Applying the foregoing rulings to the case at bar, we find that the terms of office of the first appointees under
the constitution should be computed as follows:chanrob1es virtual 1aw library
Hon. Jose Lopez Vito, Chairman, nine-year term, from June 21, 1941 to June 20, 1950.
Hon. Francisco Enage, Member, six year term, from June 21, 1941 to June 20, 1947.
The first 3 year term, from June 21, 1941 to June 20, 1944, was not filled.
Thereafter, since the first three-year term had already expired, the appointment (made on July 12, 1945) of the
Honorable Vicente de Vera must be deemed for the full term of nine years, from June 21, 1944, to June 20,
1953.
The first vacancy occurred by expiration of the initial 6-year term of Commissioner Enage on June 21, 1937
(although he served as de facto Commissioner until 1949). His successor, respondent Rodrigo Perez, was named
for a full nine-year term. However, on the principles heretofore laid, the nine-year term of Commissioner Perez
(vice Enage) should be held to have started in June 21, 1947, to expire on June 20, 1956.
The second vacancy happened upon the death of Chairman Jose Lopez Vito, who died on May 7, 1947, more
than two years before the expiration of his full term. To succeed him as Chairman, Commissioner Vicente de
Vera was appointed. Such appointment, if at all valid, could legally be only for the unexpired period of the Lopez
Vitos term, up to June 20, 1950.
To fill the vacancy created by Veras assumption of the Chairmanship, Commissioner Leopoldo Rovira was
appointed on May 22, 1947. Pursuant to the principles laid down, Rovira could only fill out the balance of Veras
term, until June 20, 1953, and could not be reappointed thereafter.
Commissioner Veras tenure as Chairman (vice Lopez Vito) expired, as we have stated, on June 20, 1950, the
end of Lopez Vitos original term. A vacancy, therefore, occurred on that date that Vera could no longer fill, since
his reappointment was expressly prohibited by the Constitution. The next Chairman was respondent
Commissioner Domingo Imperial, whose term of nine years must be deemed to have begun on June 21, 1950,
to expire on June 20, 1959.
The vacancy created by the legal expiration of Roviras term on June 20, 1953 appears unfilled up to the
present. The time elapsed, as we have held, must be counted against his successor, whose legal term is for nine
years, from June 21, 1953 to June 20, 1962.
The fact must be admitted that appointments have heretofore been made with little regard for the Constitutional
plan. However, if the principles set in this decision are observed, no difficulty need be anticipated for the future.
And it appearing, from the foregoing, that the legal terms of office of the respondents Perez and Imperial have
not as yet expired, whether the original terms started from the operation of the Constitutional amendments or
the enactment of C. A. 657, the petition for quo warranto is hereby dismissed without costs.
Pablo, Bengzon, Montemayor, Jugo, Labrador, and Concepcion, JJ., concur.
EN BANC
[G. R. No. 140335. December 13, 2000]
THELMA P. GAMINDE, petitioner, vs.
COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN, Hon. RAUL C. FLORES and EMMANUEL M.
DALMAN, respondents.
DECISION
PARDO, J.:
The Case
The case is a special civil action of certiorari seeking to annul and set aside two decisions of the
Commission on Audit ruling that petitioners term of office as Commissioner, Civil Service Commission, to which
she was appointed on June 11, 1993, expired on February 02, 1999, as set forth in her appointment paper.
The Facts
On June 11, 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde, ad
interim, Commissioner, Civil Service Commission. She assumed office on June 22, 1993, after taking an oath of
office. On September 07, 1993, the Commission on Appointment, Congress of the Philippines confirmed the
appointment. We quote verbatimher appointment paper:
66
11 June 1993
Madam:
Pursuant to the provisions of existing laws, you are hereby appointed, ad interim,
COMMISSIONER, CIVIL SERVICE COMMISSION, for a term expiring February 2, 1999.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office,
furnishing this Office and the Civil Service Commission with copies of your oath of office. [1]
However, on February 24, 1998, petitioner sought clarification from the Office of the President as to the
expiry date of her term of office. In reply to her request, the Chief Presidential Legal Counsel, in a letter dated
April 07, 1998[2] opined that petitioners term of office would expire on February 02, 2000, not on February 02,
1999.
Relying on said advisory opinion, petitioner remained in office after February 02, 1999.On February 04,
1999, Chairman Corazon Alma G. de Leon, wrote the Commission on Audit requesting opinion on whether or not
Commissioner Thelma P. Gaminde and her co-terminous staff may be paid their salaries notwithstanding the
expiration of their appointments on February 02, 1999.
On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that the term of
Commissioner Gaminde has expired on February 02, 1999 as stated in her appointment conformably with the
constitutional intent.[3]
Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of disallowance
No. 99-002-101 (99), disallowing in audit the salaries and emoluments pertaining to petitioner and her co-
terminous staff, effective February 02, 1999.[4]
On April 5, 1999, petitioner appealed the disallowance to the Commission on Audit en banc. On June 15,
1999, the Commission on Audit issued Decision No. 99-090 dismissing petitioners appeal. The Commission on
Audit affirmed the propriety of the disallowance, holding that the issue of petitioners term of office may be
properly addressed by mere reference to her appointment paper which set the expiration date on February 02,
1999, and that the Commission is bereft of power to recognize an extension of her term, not even with the
implied acquiescence of the Office of the President.[5]
In time, petitioner moved for reconsideration; however, on August 17, 1999, the Commission on Audit
denied the motion in Decision No. 99-129.[6]
Hence, this petition. [7]
The Issue
The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as Commissioner, Civil
Service Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as stated in
the appointment paper, or on February 02, 2000, as claimed by her.
The Courts Ruling
The term of office of the Chairman and members of the Civil Service Commission is prescribed in the
1987 Constitution, as follows:
Section 1 (2). The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three
years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. [8]
The 1973 Constitution introduced the first system of a regular rotation or cycle in the membership of the
Civil Service Commission. The provision on the 1973 Constitution reads:
x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term of seven years
without reappointment. Of the Commissioners first appointed, one shall hold office for seven years, another for
five years, and the third for three years.Appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor.[9]
Actually, this was a copy of the Constitutional prescription in the amended 1935 Constitution of a
rotational system for the appointment of the Chairman and members of the Commission on Elections. The
Constitutional amendment creating an independent Commission on Elections provides as follows:
Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other
Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold
office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed,
one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the
other Members of the Commission on Elections may be removed from office only by impeachment in the manner
provided in this Constitution."[10]
In Republic vs. Imperial,[11] we said that the operation of the rotational plan requires two conditions, both
indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a
common date, and, (2) that any vacancy due to death, resignation or disability before the expiration of the term
should only be filled only for the unexpired balance of the term.[12]
Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions
under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of
appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five
and three years should lead to the regular recurrence of the two-year interval between the expiration of the
terms.[13]
Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the
terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on
February 02, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or
qualification, the interval between the start of the term and the actual qualification of the appointee must be
counted against the latter.[14]
In the law of public officers, there is a settled distinction between term and tenure. [T]he term of an
office must be distinguished from the tenure of the incumbent. The term means the time during which the
officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall
succeed one another. The tenure represents the term during which the incumbent actually holds the office. The
term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or
beyond the power of the incumbent.[15]
In concluding that February 02, 1987 is the proper starting point of the terms of office of the first
appointees to the Constitutional Commissions of a staggered 7-5-3 year terms, we considered the plain
language of Article IX (B), Section 1 (2), Article IX (C), Section 1 (2) and Article IX (D), Section 1 (2) of the
1987 Constitution that uniformly prescribed a seven-year term of office for Members of the Constitutional
Commissions, without re-appointment, and for the first appointees terms of seven, five and three years, without
re-appointment. In no case shall any Member be appointed or designated in a temporary or acting
capacity. There is no need to expressly state the beginning of the term of office as this is understood to coincide
with the effectivity of the Constitution upon its ratification (on February 02, 1987).
On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides:
SEC. 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the
Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they
are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a
new term thereunder.In no case shall any Member serve longer than seven years including service before the
ratification of this Constitution.[16]
What the above quoted Transitory Provisions contemplate is tenure not term of the incumbent Chairmen
and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, who
shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for
cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder.
The term unless imports an exception to the general rule.[17] Clearly, the transitory provisions mean that the
incumbent members of the Constitutional Commissions shall continue in office for one year after the ratification
67
of this Constitution under their existing appointments at the discretion of the appointing power, who may cut
short their tenure by:(1) their removal from office for cause; (2) their becoming incapacitated to discharge the
duties of their office, or (3) their appointment to a new term thereunder, all of which events may occur before
the end of the one year period after the effectivity of the Constitution.
However, the transitory provisions do not affect the term of office fixed in Article IX, providing for a
seven-five-three year rotational interval for the first appointees under this Constitution.
At the time of the adoption of the 1987 Constitution, the incumbent Chairman and members of the Civil
Service Commission were the following: (1) Chairperson Celerina G. Gotladera. She was initially appointed as
OIC Chairman on March 19, 1986, and appointed chairman on December 24, 1986, which she assumed on
March 13, 1987. (2) Atty. Cirilo G. Montejo. On June 25, 1986, President Corazon C. Aquino appointed him
Commissioner, without any term. He assumed office on July 9, 1986, and served until March 31, 1987, when he
filed a certificate of candidacy for the position of Congressman, 2 nd District, Leyte, thereby vacating his position
as Commissioner. His tenure was automatically cut-off by the filing of his certificate of candidacy. (3) Atty. Mario
D. Yango.On January 22, 1985, President Ferdinand E. Marcos appointed him Commissioner for a term expiring
January 25, 1990. He served until February 2, 1988, when his term ended in virtue of the transitory provisions
referred to. On May 30, 1988, President Aquino re-appointed him to a new three-year term and served until May
31, 1991, exceeding his lawful term, but not exceeding the maximum of seven years, including service before
the ratification of the 1987 Constitution. Under this factual milieu, it was only Commissioner Yango who was
extended a new term under the 1987 Constitution. The period consumed between the start of the term on
February 02, 1987, and his actual assumption on May 30, 1988, due to his belated appointment, must be
counted against him.
Thus, the term of her successor[20] must be deemed to start on February 02, 1999, and expire on February 02,
2006.
Third line : Commissioner Three-year term. February 02, 1987 to February 02, 1990.Atty. Mario D.
Yango was incumbent commissioner at the time of the adoption of the 1987 Constitution. His extended tenure
ended on February 02, 1988. In May, 1988, President Corazon C. Aquino appointed him Commissioner, Civil
Service Commission to a new three-year term thereunder. He assumed office on May 30, 1988. His term ended
on February 02, 1990, but served as de facto Commissioner until May 31, 1991. On November 26, 1991, the
President nominated Atty. Ramon P. Ereeta as Commissioner, Civil Service Commission. On December 04, 1991,
the Commission on Appointments confirmed the nomination. He assumed office on December 12, 1991, for a
term expiring February 02, 1997.[21]
Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997, President Fidel V.
Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner, Civil Service Commission, for a term expiring
February 02, 2004. He assumed office on February 11, 1997.
Thus, we see the regular interval of vacancy every two (2) years, namely, February 02, 1994, for the
first Chairman,[22] February 02, 1992, for the first five-year term Commissioner,[23] and February 02, 1990, for
the first three-year term Commissioner.[24]Their successors must also maintain the two year interval, namely:
February 02, 2001, for Chairman;[25] February 02, 1999, for Commissioner Thelma P. Gaminde, and February
02, 1997, for Commissioner Ramon P. Ereeta, Jr.
The third batch of appointees would then be having terms of office as follows:

Given the foregoing common starting point, we compute the terms of the first appointees and their First line : Chairman, February 02, 2001 to February 02, 2008; Second line:Commissioner, February 02,
successors to the Civil Service Commission under the 1987 Constitution by their respective lines, as follows: 1999 to February 02, 2006;[26] and, Third line: Commissioner, February 02, 1997 to February 02,
2004,[27] thereby consistently maintaining the two-year interval.
First line : Chairman seven-year term. February 02, 1987 to February 01, 1994. On January 30, 1988,
the President nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service Commission. On March 02, 1988, The line of succession, terms of office and tenure of the Chairman and members of the Civil Service
the Commission on Appointments confirmed the nomination. She assumed office on March 04, 1988. Her term Commission may be outlined as follows:[28]
ended on February 02, 1994. She served as de facto Chairman until March 04, 1995. On March 05, 1995, the
President appointed then Social Welfare Secretary Corazon Alma G. de Leon, Chairman, Civil Service Chairman Term Tenure
Commission, to a regular seven-year term. This term must be deemed to start on February 02, 1994, (7-year original)
immediately succeeding her predecessor, whose term started on the common date of the terms of office of the Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to
first appointees under the 1987 Constitution. She assumed office on March 22, 1995, for a term expiring Feb. 02, 1994 March 08, 1995
February 02, 2001. De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995 to
(incumbent) Feb. 02, 2001 Feb. 02, 2001
This is shown in her appointment paper, quoted verbatim as follows: _______ - 3rd appointee Feb. 02, 2001 to
Feb. 02, 2008
2nd Member Term Tenure
March 5, 1995 (5-year original)
Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988 to
Feb. 02, 1992 March 04, 1993
Madam: Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to
Feb. 02, 1999 Feb. 02, 2000
Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to
Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the Constitution, you are (incumbent) Feb. 02, 2006 Feb. 02, 2006
hereby appointed, ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a term expiring February 2, 3rd Member Term Tenure
2001. (3-year original)
Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to
Feb. 02, 1990 May 31, 1991
By virtue hereof, you may qualify and enter upon the performance of the duties of the office, Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to
furnishing this Office and the Civil Service Commission with copies of your oath of office. Feb. 02, 1997 Feb. 02, 1997
Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to
(incumbent) Feb. 02, 2004 Feb. 02, 2004
(Sgd.) FIDEL V. RAMOS

Second line : Commissioner Five-year term. February 02, 1987 to February 02, 1992.On January 30,
1988, the President nominated Atty. Samilo N. Barlongay Commissioner, Civil Service Commission. On February The Fallo
17, 1988, the Commission on Appointments, Congress of the Philippines, confirmed the nomination. He
assumed office on March 04, 1988. His term ended on February 02, 1992. He served as de facto Commissioner
until March 04, 1993.
WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as Commissioner, Civil
On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner, Civil Service Service Commission, under an appointment extended to her by President Fidel V. Ramos on June 11, 1993,
Commission, for a term expiring February 02, 1999.[18] This terminal date is specified in her appointment expired on February 02, 1999. However, she served as de facto officer in good faith until February 02, 2000,
paper. On September 07, 1993, the Commission on Appointments confirmed the appointment. She accepted the and thus entitled to receive her salary and other emoluments for actual service rendered. Consequently, the
appointment and assumed office on June 22, 1993. She is bound by the term of the appointment she accepted, Commission on Audit erred in disallowing in audit such salary and other emoluments, including that of her co-
expiring February 02, 1999. In this connection, the letter dated April 07, 1998, of Deputy Executive Secretary terminous staff.
Renato C. Corona[19] clarifying that her term would expire on February 02, 2000, was in error. What was
submitted to the Commission on Appointments was a nomination for a term expiring on February 02, 1999.

68
 ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they disallow the
salaries and emoluments of Commissioner Thelma P. Gaminde and her coterminous staff during her tenure
as de facto officer from February 02, 1999, until February 02, 2000.
This decision shall be effective immediately.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
Dennis Funa vs
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on Audit and
accordingly prays that a judgment issue declaring the unconstitutionality of the appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) appointed
Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a term of seven (7) years,
pursuant to the 1987 Constitution.[1] Caragues term of office started on February 2, 2001 to end on February 2,
2008.
Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as
the third member of the COA for a term of seven (7) years starting February 2, 2004 until February 2, 2011.
Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14,
2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly
thereafter, on June 11, 2008, the Commission on Appointments confirmed his appointment. He was to serve as
Chairman of COA, as expressly indicated in the appointment papers, until the expiration of the original term of
his office as COA Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an obvious bid to
lend color of title to his hold on the chairmanship, insists that his appointment as COA Chairman accorded him a
fresh term of seven (7) years which is yet to lapse. He would argue, in fine, that his term of office, as such
chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008 when he was appointed to
that position.
Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA Commissioner
to serve the unexpired term of Villar as Commissioner or up to February 2, 2011.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to
President Benigno S. Aquino III, signified his intention to step down from office upon the appointment of his
replacement. True to his word, Villar vacated his position when President Benigno Simeon Aquino III named Ma.
Gracia Pulido-Tan (Chairman Tan) COA Chairman. This development has rendered this petition and the main
issue tendered therein moot and academic.
A case is considered moot and academic when its purpose has become stale, [2]or when it ceases to
present a justiciable controversy owing to the onset of supervening events, [3] so that a resolution of the case or
a declaration on the issue would be of no practical value or use. [4] In such instance, there is no actual
substantial relief which a petitioner would be entitled to, and which will anyway be negated by the dismissal of
the basic petition.[5] As a general rule, it is not within Our charge and function to act upon and decide a moot
case. However, in David v. Macapagal-Arroyo,[6] We acknowledged and accepted certain exceptions to the issue
of mootness, thus:
The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise
moot and academic, if: first, there is a grave violation of the Constitution, second, the
exceptional character of the situation and the paramount public interest is involved,
third, when constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public, and fourth, the case is capable of repetition yet
evading review.
Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of
Villar, We consider the instant case as falling within the requirements for review of a moot and academic case,
since it asserts at least four exceptions to the mootness rule discussed in David, namely: there is a grave
violation of the Constitution; the case involves a situation of exceptional character and is of paramount public
interest; the constitutional issue raised requires the formulation of controlling principles to guide the bench, the
bar and the public; and the case is capable of repetition yet evading review. [7] The situation presently obtaining
is definitely of such exceptional nature as to necessarily call for the promulgation of principles that will
henceforth guide the bench, the bar and the public should like circumstance arise. Confusion in similar future
situations would be smoothed out if the contentious issues advanced in the instant case are resolved
straightaway and settled definitely. There are times when although the dispute has disappeared, as in this case,
it nevertheless cries out to be addressed. To borrow from Javier v. Pacificador,[8] Justice demands that we act
then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a
restraint in the future.
Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes
down to the question of whether or not the following requisites for the exercise of judicial review of an executive
act obtain in this petition, viz: (1) there must be an actual case or justiciable controversy before the court; (2)
the question before it must be ripe for adjudication; (3) the person challenging the act must be a proper party;
and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the very litis
mota of the case.[9]
To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as
a taxpayer and citizen, lacks the necessary standing to challenge his appointment. [10] On the other hand, the
Office of the Solicitor General (OSG), while recognizing the validity of Villars appointment for the period ending
February 11, 2011, has expressed the view that petitioner should have had filed a petition for declaratory relief
or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of Court instead of certiorari under Rule 65.
Villars posture on the absence of some of the mandatory requisites for the exercise by the Court of
its power of judicial review must fail. As a general rule, a petitioner must have the necessary personality or
standing (locus standi) before a court will recognize the issues presented. In Integrated Bar of the Philippines v.
Zamora, We defined locus standi as:
x x x a personal and substantial interest in the case such that the party has
sustained or will sustain a direct injury as a result of the governmental act that is being
challenged. The term interest means a material interest, an interest in issue affected by
the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest. The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court depends for illumination
of difficult constitutional questions.[11]
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a direct injury as a
result of a government action, or have a material interest in the issue affected by the challenged official
act.[12] However, the Court has time and again acted liberally on the locus standi requirements and has accorded
certain individuals, not otherwise directly injured, or with material interest affected, by a Government act,
standing to sue provided a constitutional issue of critical significance is at stake. [13] The rule on locus standi is
after all a mere procedural technicality in relation to which the Court, in a catena of cases involving a subject
of transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not have been personally
injured by the operation of a law or any other government act. [14] In David, the Court laid out the bare minimum
norm before the so-called non-traditional suitors may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes
their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has far-reaching implications,
and there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous cases.
We, thus, assume a liberal stance and allow petitioner to institute the instant petition.
69
 Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of
the availment of certiorari as a medium to inquire on whether the assailed appointment of respondent Villar as
COA Chairman infringed the constitution or was infected with grave abuse of discretion. For under the expanded
concept of judicial review under the 1987 Constitution, the corrective hand of certiorari may be invoked not only
to settle actual controversies involving rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government. [15] Grave abuse of discretion denotes:
such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be so patent and gross as
to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act in contemplation of law.[16]
We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave abuse of discretion.
This brings Us to the pivotal substantive issue of whether or not Villars appointment as COA
Chairman, while sitting in that body and after having served for four (4) years of his seven (7) year term as COA
commissioner, is valid in light of the term limitations imposed under, and the circumscribing concepts tucked in,
Sec. 1 (2), Art. IX(D) of the Constitution, which reads:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the
President with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, the Chairman shall hold office
for seven years, one commissioner for five years, and the other commissioner for three
years, without reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In no case shall any member be
appointed or designated in a temporary or acting capacity. (Emphasis added.) [17]
And if valid, for how long can he serve?
At once clear from a perusal of the aforequoted provision are the defined restricting features in the
matter of the composition of COA and the appointment of its members (commissioners and chairman) designed
to safeguard the independence and impartiality of the commission as a body and that of its individual
members.[18]These are, first, the rotational plan or the staggering term in the commission membership, such
that the appointment of commission members subsequent to the original set appointed after the effectivity of
the 1987 Constitution shall occur every two years; second, the maximum but a fixed term-limit of seven (7)
years for all commission members whose appointments came about by reason of the expiration of term save the
aforementioned first set of appointees and those made to fill up vacancies resulting from certain causes; third,
the prohibition against reappointment of commission members who served the full term of seven years or of
members first appointed under the Constitution who served their respective terms of office; fourth, the
limitation of the term of a member to the unexpired portion of the term of the predecessor; and fifth, the
proscription against temporary appointment or designation.
To elucidate on the mechanics of and the adverted limitations on the matter of COA-member
appointments with fixed but staggered terms of office, the Court lays down the following postulates deducible
from pertinent constitutional provisions, as construed by the Court:
1. The terms of office and appointments of the first set of commissioners, or the seven, five and
three-year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had already expired. Hence, their
respective terms of office find relevancy for the most part only in understanding the operation of the rotational
plan. In Gaminde v. Commission on Audit,[19] the Court described how the smooth functioning of the rotational
system contemplated in said and like provisions covering the two other independent commissions is achieved
thru the staggering of terms:
x x x [T]he terms of the first Chairmen and Commissioners of the
Constitutional Commissions under the 1987 Constitution must start on a common
date [February 02, 1987, when the 1987 Constitution was ratified] irrespective of the
variations in the dates of appointments and qualifications of the appointees in order that
the expiration of the first terms of seven, five and three years should lead to
the regular recurrence of the two-year interval between the expiration of the
terms.
x x x In case of a belated appointment, the interval between the start
of the terms and the actual appointment shall be counted against the
appointee. (Italization in the original; emphasis added.)
[20]
Early on, in Republic v. Imperial,[21] the Court wrote of two conditions, both indispensable to
[the] workability of the rotational plan. These conditions may be described as follows: (a) that the terms of
the first batch of commissioners should start on a common date; and (b) that any vacancy due to death,
resignation or disability before the expiration of the term should be filled only for the unexpired
balance of the term. Otherwise, Imperial continued, the regularity of the intervals between appointments
would be destroyed. There appears to be near unanimity as to the purpose/s of the rotational system, as
originally conceived, i.e., to place in the commission a new appointee at a fixed interval (every two years
presently), thus preventing a four-year administration appointing more than one permanent and regular
commissioner,[22] or to borrow from Commissioner Monsod of the 1986 CONCOM, to prevent one person (the
President of the Philippines) from dominating the commissions.[23] It has been declared too that the rotational
plan ensures continuity in, and, as indicated earlier, secure the independence of, the commissions as a body. [24]
2. An appointment to any vacancy in COA, which arose from an expiration of a term, after the first
chairman and commissioners appointed under the 1987 Constitution have bowed out, shall, by express
constitutional fiat, be for a term of seven (7) years, save when the appointment is to fill up a vacancy for the
corresponding unserved term of an outgoing member. In that case, the appointment shall only be for
the unexpired portion of the departing commissioners term of office. There can only be an unexpired portion
when, as a direct result of his demise, disability, resignation or impeachment, as the case may be, a sitting
member is unable to complete his term of office.[25] To repeat, should the vacancy arise out of the expiration of
the term of the incumbent, then there is technically no unexpired portion to speak of. The vacancy is for a new
and complete seven-year term and, ergo, the appointment thereto shall in all instances be for a maximum
seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the reappointmentof a member of COA
after his appointment for seven (7) years. Writing for the Court in Nacionalista Party v. De Vera,[26] a case
involving the promotion of then COMELEC Commissioner De Vera to the position of chairman, then Chief Justice
Manuel Moran called attention to the fact that the prohibition against reappointment comes as a continuation of
the requirement that the commissionersreferring to members of the COMELEC under the 1935 Constitutionshall
hold office for a term of nine (9) years. This sentence formulation imports, notes Chief Justice Moran, that
reappointment is not an absolute prohibition.
4. The adverted system of regular rotation or the staggering of appointments and terms in the
membership for all three constitutional commissions, namely the COA, Commission on Elections (COMELEC)
and Civil Service Commission (CSC) found in the 1987 Constitution was patterned after the amended 1935
Constitution for the appointment of the members of COMELEC [27] with this difference: the 1935 version entailed
a regular interval of vacancy every three (3) years, instead of the present two (2) years and there was no
express provision on appointment to any vacancy being limited to the unexpired portion of the his predecessors
term. The model 1935 provision reads:
Section 1. There shall be an independent Commission on Elections composed
of a Chairman and two other members to be appointed by the President with the
consent of the Commission on Appointments, who shall hold office for a term of nine
years and may not be reappointed. Of the Members of the Commission first appointed,
one shall hold office for nine years, another for six years and the third for three years. x
xx
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be it for the same
position (commissioner to another position of commissioner) or upgraded position (commissioner to
chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is drawn in this regard to the
Courts disposition in Matibag v. Benipayo.[28]
Villars promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a different office
and requiring another confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2),
Article IX(D) of the Constitution on the ban against reappointment in relation to the appointment issued to
respondent Villar to the position of COA Chairman.
Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner
contends that Villars appointment is proscribed by the constitutional ban on reappointment under the aforecited
constitutional provision.On the other hand, respondent Villar initially asserted that his appointment as COA
Chairman is valid up to February 2, 2015 pursuant to the same provision.
The Court finds petitioners position bereft of merit. The flaw lies in regarding the word
reappointment as, in context, embracing any and all species of appointment.
The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must
be given its literal meaning and applied without attempted interpretation. [29] This is known as the plain meaning
rule enunciated by the maxim verba legis non est recedendum, or from the words of a statute there should be
no departure.[30]
The primary source whence to ascertain constitutional intent or purpose is the language of the
provision itself.[31] If possible, the words in the Constitution must be given their ordinary meaning, save where
technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal
legis rule in this wise:
70

We look to the language of the document itself in our search for its
meaning.We do not of course stop there, but that is where we begin. It is to be assumed
that the words in which constitutional provisions are couched express the
objective sought to be attained. They are to be given their ordinary meaning except
where technical terms are employed in which case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyers document, it being essential
for the rule of law to obtain that it should ever be present in the peoples
consciousness, its language as much as possible should be understood in the
sense they have in common use. What it says according to the text of the provision
to be construed compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say. Thus there
are cases where the need for construction is reduced to a minimum. [32](Emphasis
supplied.)
Let us dissect and examine closely the provision in question:
(2) The Chairman and Commissioners [on Audit] shall be appointed by
the President with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, the Chairman shall hold office
for seven years, one commissioner for five years, and the other commissioner for three
years, without reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. x x x (Emphasis added.)
The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a term of
seven years, and if he has served the full term, then he can no longer be reappointed or extended another
appointment. In the same vein, a Commissioner who was appointed for a term of seven years who likewise
served the full term is barred from being reappointed. In short, once the Chairman or Commissioner shall have
served the full term of seven years, then he can no longer be reappointed to either the position of Chairman or
Commissioner. The obvious intent of the framers is to prevent the president from dominating the Commission
by allowing him to appoint an additional or two more commissioners.
The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention barred
reappointment to be extended to commissioner-members first appointed under the 1987 Constitution to prevent
the President from controlling the commission. Thus, the first Chairman appointed under the 1987 Constitution
who served the full term of seven years can no longer be extended a reappointment. Neither can the
Commissioners first appointed for the terms of five years and three years be eligible for reappointment. This is
the plain meaning attached to the second sentence of Sec. 1(2), Article IX(D).
On the other hand, the provision, on its face, does not prohibit a promotional appointment from commissioner to
chairman as long as the commissioner has not served the full term of seven years, further qualified by the third
sentence of Sec. 1(2), Article IX (D) that the appointment to any vacancy shall be only for the unexpired portion
of the term of the predecessor. In addition, such promotional appointment to the position of Chairman must
conform to the rotational plan or the staggering of terms in the commission membership such that the
aggregate of the service of the Commissioner in said position and the term to which he will be appointed to the
position of Chairman must not exceed seven years so as not to disrupt the rotational system in the commission
prescribed by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional appointment
from Commissioner to Chairman, provided it is made under the aforestated circumstances or conditions.
It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched, allows a
promotional appointment from Commissioner to Chairman. Even if We concede the existence of an ambiguity,
the outcome will remain the same. J.M. Tuason & Co., Inc.[33] teaches that in case of doubt as to the import and
react of a constitutional provision, resort should be made to extraneous aids of construction, such as debates
and proceedings of the Constitutional Convention, to shed light on and ascertain the intent of the framers or the
purpose of the provision being construed.
The understanding of the Convention as to what was meant by the terms of the constitutional provision which
was the subject of the deliberation goes a long way toward explaining the understanding of the people when
they ratified it. The Court applied this principle in Civil Liberties Union v. Executive Secretary:
A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason
which induced the framers of the Constitution to enact the particular provision
and the purpose sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and calculated to effect
that purpose.[34] (Emphasis added.)
And again in Nitafan v. Commissioner on Internal Revenue:
x x x The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the intent of the
framers of the organic law and of the people adopting it should be given
effect.The primary task in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of the people in the adoption of
the Constitution. It may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the
framers.[35](Emphasis added.)
Much weight and due respect must be accorded to the intent of the framers of the Constitution in
interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation where a commissioner is
upgraded to the position of chairman, the 1987 Constitution in fact unequivocally allows promotional
appointment, but subject to defined parameters.The ensuing exchanges during the deliberations of the 1986
Constitutional Commission (CONCOM) on a draft proposal of what would eventually be Sec. 1(2), Art. IX(D) of
the present Constitution amply support the thesis that a promotional appointment is allowed provided no one
may be in the COA for an aggregate threshold period of 7 years:
MS. AQUINO: In the same paragraph, I would propose an amendment x x
x.Between x x x the sentence which begins with In no case, insert THE APPOINTEE
SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was
thinking that this may approximate the situation wherein a commissioner is first
appointed as chairman. I am willing to withdraw that amendment if there is a
representation on the part of the Committee that there is an implicit intention to
prohibit a term that in the aggregate will exceed more than seven years. If that
is the intention, I am willing to withdraw my amendment.
MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will
notice that there is no reappointment of any kind and, therefore, as a whole there is no
way somebody can serve for more than seven years. The purpose of the last
sentence is to make sure that this does not happen by including in the appointment both
temporary and acting capacities.
MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was
thinking of a situation wherein a commissioner is upgraded to a position of
chairman. But if this provision is intended to cover that kind of situation, then I am
willing to withdraw my amendment.
MR. MONSOD. It is covered.
MR. FOZ. There is a provision on line 29 precisely to cover that situation. It
states: Appointment to any vacancy shall be only for the unexpired portion of the
predecessor. In other words, if there is upgrading of position from commissioner
to chairman, the appointee can serve only the unexpired portion of the term of
the predecessor.
MS. AQUINO: But we have to be very specific x x x because it might
shorten the term because he serves only the unexpired portion of the term of
the predecessor.
MR. FOZ: He takes it at his own risk. He knows that he will only have
to serve the unexpired portion of the term of the predecessor. (Emphasis
added.) [36]
The phrase upgrading of position found in the underscored portion unmistakably shows that Sec.
1(2), Art. IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not per se preclude, in
any and all cases, the promotional appointment or upgrade of a commissioner to chairman, subject to this
proviso: the appointees tenure in office does not exceed 7 years in all. Indeed, such appointment does not
contextually come within the restricting phrase without reappointment twice written in that section. Delegate
Foz even cautioned, as a matter of fact, that a sitting commissioner accepting a promotional appointment to fill
up an unexpired portion pertaining to the higher office does so at the risk of shortening his original term. To
illustrate the Fozs concern: assume that Carague left COA for reasons other than the expiration of his threshold
7-year term and Villar accepted an appointment to fill up the vacancy. In this situation, the latter can only stay
at the COA and served the unexpired portion of Caragues unexpired term as departing COA Chairman, even if,
in the process, his (Villars) own 7-year term as COA commissioner has not yet come to an end. In this
illustration, the inviolable regularity of the intervals between appointments in the COA is preserved.
71
 Moreover, jurisprudence tells us that the word reappointment means a second appointment to one
and the same office.[37] As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent in Visarra v.
Miraflor, [38]
the constitutional prohibition against the reappointment of a commissioner refers to his second
appointment to the same office after holding it for nine years.[39] As Justice Dizon observed, [T]he occupant of
an office obviously needs no such second appointment unless, for some valid cause, such as the expiration of his
term or resignation, he had ceased to be the legal occupant thereof. [40] The inevitable implication of Justice
Dizons cogent observation is that a promotion from commissioner to chairman, albeit entailing a second
appointment, involves a different office and, hence, not, in the strict legal viewpoint, a reappointment. Stated a
bit differently, reappointment refers to a movement to one and the same office. Necessarily, a movement to a
different position within the commission (from Commissioner to Chairman) would constitute an appointment, or
a second appointment, to be precise, but not reappointment.
A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista, although he
expressly alluded to a promotional appointment as not being a prohibited appointment under Art. X of the 1935
Constitution.
Petitioners invocation of Matibag as additional argument to contest the constitutionality of Villars
elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo appointed, ad
interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino Tuason as
Commissioners, each for a term of office of seven (7) years. All three immediately took their oath of, and
assumed, office. These appointments were twice renewed because the Commission on Appointments failed to
act on the first two ad interimappointments. Via a petition for prohibition, some disgruntled COMELEC officials
assail as infirm the appointments of Benipayo, et al.
Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be
specific, where the proviso [t]he Chairman and the Commissioners shall be appointed x x x for a term of seven
years without reappointment shall apply. Justice Antonio T. Carpio declares in his dissent that Villars
appointment falls under a combination of two of the four situations.
Conceding for the nonce the correctness of the premises depicted in the situations referred to
in Matibag, that case is of doubtful applicability to the instant petition. Not only is it cast against a different
milieu, but the lis mota of the case, as expressly declared in the main opinion, is the very constitutional issue
raised by petitioner.[41] And what is/are this/these issue/s? Only two defined issues in Matibagare relevant, viz:
(1) the nature of an ad interim appointment and subsumed thereto the effect of a by-passed ad
interim appointment; and (2) the constitutionality of renewals of ad interim appointments. The opinion defined
these issues in the following wise: Petitioner [Matibag] filed the instant petition questioning the appointment and
the right to remain in office of Benipayo, Borra and Tuason as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of Benipayo, et al. violate the constitutional
provisions on the independence of COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members. As may distinctly be noted, an upgrade or promotion was not in
issue in Matibag.
We shall briefly address the four adverted situations outlined in Matibag, inwhich, as there urged,
the uniform proviso on no reappointmentafter a member of any of the three constitutional commissions is
appointed for a term of seven (7) yearsshall apply. Matibag made the following formulation:
The first situation is where an ad interim appointee after confirmation by the
Commission on Appointments serves his full 7-year term. Such person cannot be
reappointed whether as a member or as chairman because he will then be actually
serving more than seven (7) years.
The second situation is where the appointee, after confirmation, serves part
of his term and then resigns before his seven-year term of office ends. Such person
cannot be reappointed whether as a member or as chair to a vacancy arising from
retirement because a reappointment will result in the appointee serving more than seven
years.
The third situation is where the appointee is confirmed to serve the
unexpired portion of someone who died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed whether as a member or as chair to
a vacancy arising from retirement because a reappointment will result in the appointee
also serving more than seven (7) years.
The fourth situation is where the appointee has previously served a
term of less than seven (7) years, and a vacancy arises from death or
resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited
because his situation will be similar to those appointed under the second
sentence of Sec. 1(20), Art. IX-C of the Constitution [referring to the first set of
appointees (the 5 and 3 year termers) whose term of office are less than 7
years but are barred from being reappointed under any situation].[42] (Words in
brackets and emphasis supplied.)
The situations just described constitute an obiter dictum, hence without the force of adjudication, for
the corresponding formulation of the four situations was not in any way necessary to resolve any of the
determinative issues specifically defined in Matibag. An opinion entirely unnecessary for the decision of the case
or one expressed upon a point not necessarily involved in the determination of the case is an obiter.[43]
There can be no serious objection to the scenarios depicted in the first, second and third situations,
both hewing with the proposition that no one can stay in any of the three independent commissions for an
aggregate period of more than seven (7) years. The fourth situation, however, does not commend itself for
concurrence inasmuch as it is basically predicated on the postulate that reappointment, as earlier herein
defined, of any kind is prohibited under any and all circumstances. To reiterate, the word reappointment means
a second appointment to one and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar
provisions do not peremptorily prohibit the promotional appointment of a commissioner to chairman, provided
the new appointees tenure in both capacities does not exceed seven (7) years in all. The statements
in Matibag enunciating the ban on reappointment in the aforecited fourth situation, perforce, must be
abandoned, for, indeed, a promotional appointment from the position of Commissioner to that of Chairman is
constitutionally permissible and not barred by Sec. 1(2), Art. IX (D) of the Constitution.
One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve
the independence of COA and its members,[44] citing what the dissenting Justice J.B.L Reyes wrote in Visarra,
that once appointed and confirmed, the commissioners should be free to act as their conscience demands,
without fear of retaliation or hope or reward. Pursued to its logical conclusion, petitioners thesis is that a COA
member may no longer act with independence if he or she can be rewarded with a promotion or appointment,
for then he or she will do the bidding of the appointing authority in the hope of being promoted or reappointed.
The unstated reason behind Justice J.B.L. Reyes counsel is that independence is really a matter of
choice. Without taking anything away from the gem imparted by the eminent jurist, what Chief Justice Moran
said on the subject of independence is just as logically sound and perhaps even more compelling, as follows:
A Commissioner, hopeful of reappointment may strive to do good. Whereas,
without that hope or other hope of material reward, his enthusiasm may decline as the
end of his term approaches and he may even lean to abuses if there is no higher restrain
in his moral character. Moral character is no doubt the most effective safeguard of
independence. With moral integrity, a commissioner will be independent with or without
the possibility of reappointment.[45]
The Court is likewise unable to sustain Villars proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7-year termfrom February 2008 to February 2015given his four (4)-year
tenure as COA commissioner devalues all the past pronouncements made by this Court, starting in De Vera,
then Imperial, Visarra, and finally Matibag. While there had been divergence of opinion as to the import of the
word reappointment, there has been unanimity on the dictum that in no case can one be a COA member, either
as chairman or commissioner, or a mix of both positions, for an aggregate term of more than 7 years. A
contrary view would allow a circumvention of the aggregate 7-year service limitation and would be
constitutionally offensive as it would wreak havoc to the spirit of the rotational system of succession. Imperial,
passing upon the rotational system as it applied to the then organizational set-up of the COMELEC, stated:
The provision that of the first three commissioners appointed one shall hold
office for 9 years, another for 6 years and the third for 3 years, when taken together
with the prescribed term of office for 9 years without reappointment, evinces a
deliberate plan to have a regular rotation or cycle in the membership of the commission,
by having subsequent members appointable only once every three years.[46]
To be sure, Villars appointment as COA Chairman partakes of a promotional appointment which,
under appropriate setting, would be outside the purview of the constitutional reappointment ban in Sec 1(2),
Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term appearing in the underlying
appointment paper, ought still to be struck down as unconstitutional for the reason as shall be explained.
Consider:
In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a COA
member shall be for a fixed 7-year term if the vacancy results from the expiration of the term of the
predecessor. We reproduce in its pertinent part the provision referred to:
(2) The Chairman and Commissioners [on Audit] shall be appointed x x
x for a term of seven years without reappointment. x x x Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor. x
xx
Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of less
than seven (7) years is void for violating a clear, but mandatory constitutional prescription. There can be no
denying that the vacancy in the position of COA chairman when Carague stepped down in February 2, 2008
resulted from the expiration of his 7-year term. Hence, the appointment to the vacancy thus created ought to
72
have been one for seven (7) years in line with the verbal legis approach[47] of interpreting the Constitution. It is
to be understood, however, following Gaminde, that in case of a belated appointment, the interval between the
start of the term and the actual appointment shall be counted against the 7-year term of the appointee. Posing,
however, as an insurmountable barrier to a full 7-year appointment for Villar is the rule against one serving the
commission for an aggregate term of more than seven (7) years.
Where the Constitution or, for that matter, a statute, has fixed the term of office of a public official,
the appointing authority is without authority to specify in the appointment a term shorter or longer than what
the law provides. If the vacancy calls for a full seven-year appointment, the President is without discretion to
extend a promotional appointment for more or for less than seven (7) years. There is no in between. He or she
cannot split terms. It is not within the power of the appointing authority to override the positive provision of the
Constitution which dictates that the term of office of members of constitutional bodies shall be seven (7)
years.[48] A contrary reasoning would make the term of office to depend upon the pleasure or caprice of the
[appointing authority] and not upon the will [of the framers of the Constitution] of the legislature as expressed
in plain and undoubted language in the law.[49]
In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was not legally
feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as COA
Commissioner. A shorter term, however, to comply with said rule would also be invalid as the corresponding
appointment would effectively breach the clear purpose of the Constitution of giving to every appointee so
appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA
commissioner like respondent Villar who serves for a period less than seven (7) years cannot be appointed as
chairman when such position became vacant as a result of the expiration of the 7-year term of the predecessor
(Carague). Such appointment to a full term is not valid and constitutional, as the appointee will be allowed to
serve more than seven (7) years under the constitutional ban.
On the other hand, a commissioner who resigned before serving his 7- year term can be extended
an appointment to the position of chairman for the unexpired period of the term of the latter, provided the
aggregate of the period he served as commissioner and the period he will serve as chairman will not exceed
seven (7) years. This situation will only obtain when the chairman leaves the office by reason of death,
disability, resignation or impeachment. Let us consider, in the concrete, the situation of then Chairman Carague
and his successor, Villar. Carague was appointed COA Chairman effective February 2, 2001 for a term of seven
(7) years, or up to February 2, 2008. Villar was appointed as Commissioner on February 2, 2004 with a 7-year
term to end on February 2, 2011. If Carague for some reason vacated the chairmanship in 2007, then Villar can
resign as commissioner in the same year and later be appointed as chairman to serve only up to February 2,
2008, the end of the unexpired portion of Caragues term. In this hypothetical scenario, Villars appointment to
the position of chairman is valid and constitutional as the aggregate periods of his two (2) appointments will
only be five (5) years which neither distorts the rotational scheme nor violates the rule that the sum total of said
appointments shall not exceed seven (7) years. Villar would, however, forfeit two (2) years of his original seven
(7)-year term as Commissioner, since, by accepting an upgraded appointment to Caragues position, he agreed
to serve the unexpired portion of the term of the predecessor. As illustrated earlier, following Mr. Fozs line, if
there is an upgrading of position from commissioner to chairman, the appointee takes the risk of cutting short
his original term, knowing pretty well before hand that he will serve only the unexpired portion of the term of
his predecessor, the outgoing COA chairman.
In the extreme hypothetical situation that Villar vacates the position of chairman for causes other
than the expiration of the original term of Carague, the President can only appoint the successor of Villar for the
unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the expiration
of the original 7-year term of Carague, the President can appoint a new chairman for a term of seven (7) full
years.
In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the
view that the promotional appointment of a sitting commissioner is plausible only when he is appointed to the
position of chairman for the unexpired portion of the term of said official who leaves the office by reason of any
the following reasons: death, disability, resignation or impeachment, not when the vacancy arises out as a
result of the expiration of the 7-year term of the past chairman. There is nothing in the Constitution, so Justice
Mendoza counters, that restricts the promotion of an incumbent commissioner to the chairmanship only in
instances where the tenure of his predecessor was cut short by any of the four events referred to. As earlier
explained, the majority view springs from the interplay of the following premises: The explicit command of the
Constitution is that the Chairman and the Commissioners shall be appointed by the President x x x for a term of
seven years [and] appointment to any vacancy shall be only for the unexpired portion of the term of the
predecessor. To repeat, the President has two and only two options on term appointments. Either he extends an
appointment for a full 7-year term when the vacancy results from the expiration of term, or for a shorter period
corresponding to the unexpired term of the predecessor when the vacancy occurs by reason of death, physical
disability, resignation or impeachment. If the vacancy calls for a full seven-year appointment, the Chief
Executive is barred from extending a promotional appointment for less than seven years. Else, the President can
trifle with terms of office fixed by the Constitution.
Justice Mendoza likewise invites attention to an instance in history when a commissioner had been
promoted chairman after the expiration of the term of his predecessor, referring specifically to the
appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P. Carag after the expiration of
the latters term in 1959 as COMELEC chairman. Such appointment to the position of chairman is not
constitutionally permissible under the 1987 Constitution because of the policy and intent of its framers that a
COA member who has served his full term of seven (7) years or even for a shorter period can no longer be
extended another appointment to the position of chairman for a full term of seven (7) years. As revealed in the
deliberations of the Constitutional Commission that crafted the 1987 Constitution, a member of COA who also
served as a commissioner for less than seven (7) years in said position cannot be appointed to the position of
chairman for a full term of seven (7) years since the aggregate will exceed seven (7) years. Thus, the adverted
Garcia appointment in 1959 made under the 1935 Constitution cannot be used as a precedent to an
appointment of such nature under the 1987 Constitution.The dissent further notes that the upgrading remained
uncontested. In this regard, suffice it to state that the promotion in question was either legal or it was not. If it
were not, no amount of repetitive practices would clear it of invalidating taint.
Lastly, Villars appointment as chairman ending February 2, 2011 which Justice Mendoza considers as
valid is likewise unconstitutional, as it will destroy the rationale and policy behind the rotational system or the
staggering of appointments and terms in COA as prescribed in the Constitution. It disturbs in a way the
staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitution. Consider: If
Villars term as COA chairman up to February 2, 2011 is viewed as valid and constitutional as espoused by my
esteemed colleague, then two vacancies have simultaneously occurred and two (2) COA members going out of
office at once, opening positions for two (2) appointables on that date as Commissioner San Buenaventuras
term also expired on that day. This is precisely one of the mischiefs the staggering of terms and the regular
intervals appointments seek to address. Note that San Buenaventura was specifically appointed to succeed Villar
as commissioner, meaning she merely occupied the position vacated by her predecessor whose term as such
commissioner expired on February 2, 2011. The result is what the framers of the Constitution doubtless sought
to avoid, a sitting President with a 6-year term of office, like President Benigno C. Aquino III, appointing all or at
least two (2) members of the three-man Commission during his term. He appointed Ma. Gracia Pulido-Tan as
Chairman for the term ending February 2, 2015 upon the relinquishment of the post by respondent Villar, and
Heidi Mendoza was appointed Commissioner for a 7-year term ending February 2, 2018 to replace San
Buenaventura. If Justice Mendozas version is adopted, then situations like the one which obtains in the
Commission will definitely be replicated in gross breach of the Constitution and in clear contravention of the
intent of its framers. Presidents in the future can easily control the Commission depriving it of its independence
and impartiality.
To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:
1. The appointment of members of any of the three constitutional commissions, after the
expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of
seven (7) years; an appointment for a lesser period is void and unconstitutional.
The appointing authority cannot validly shorten the full term of seven (7) years in case of the
expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution.
2. Appointments to vacancies resulting from certain causes (death, resignation, disability
or impeachment) shall only be for the unexpired portion of the term of the predecessor, but such appointments
cannot be less than the unexpired portion as this will likewise disrupt the staggering of terms laid down under
Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a
full term of seven years and who served the entire period, are barred from reappointment to any position in the
Commission. Corollarily, the first appointees in the Commission under the Constitution are also covered by the
prohibition against reappointment.
4. A commissioner who resigns after serving in the Commission for less than seven years
is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of
the length of service as commissioner and the unexpired period of the term of the predecessor will not exceed
seven (7) years and provided further that the vacancy in the position of Chairman resulted from death,
resignation, disability or removal by impeachment. The Court clarifies that reappointment found in Sec. 1(2),
Art. IX(D) means a movement to one and the same office (Commissioner to Commissioner or Chairman to
Chairman). On the other hand, an appointment involving a movement to a different position or office
(Commissioner to Chairman) would constitute a new appointment and, hence, not, in the strict legal sense, a
reappointment barred under the Constitution.
5. Any member of the Commission cannot be appointed or designated in a temporary or
acting capacity.
WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner Reynaldo
A. Villar to the position of Chairman of the Commission on Audit to replace Guillermo N. Carague, whose term of
office as such chairman has expired, is hereby declared UNCONSTITUTIONAL for violation of Sec. 1(2), Art.
IX(D) of the Constitution.
SO ORDERED.
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